February 25, 2020

McKinney v. Arizona
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DEATH PENALTY

Did the Arizona Supreme Court Violate the Constitution When, After a Federal Court Struck a Convicted
Individual’s Death Sentence on Habeas Corpus Review, It Reconsidered the Sentence Itself, Instead of
Remanding the Case to a Jury or Trial Court for Resentencing?

CASE AT A GLANCE

James McKinney was convicted of two counts of first-degree murder and sentenced to death. He appealed
his sentence to the Arizona Supreme Court, arguing that the sentencing judge failed to consider mitigating
evidence of his post-traumatic stress disorder (PTSD). The Arizona Supreme Court rejected this claim.
McKinney later filed a habeas corpus action in federal court, and the Ninth Circuit ultimately ruled in his
favor. The state filed a motion in the Arizona Supreme Court for a new independent review of McKinney’s
sentence. The state Supreme Court reconsidered the evidence originally submitted at trial and affirmed
McKinney’s death sentence.

Docket No. 18 1109

Argument Date: December 11, 2019
From: The Arizona Supreme Court
by Steven D. Schwinn
University of Illinois Chicago John Marshall Law School, Chicago, IL

INTRODUCTION

James McKinney contends that after the Ninth Circuit ruled in his favor, he was entitled to a full resentencing
by a jury (pursuant to then-current Supreme Court caselaw), or at least by a trial court (in order fully to
remedy the Arizona Supreme Court’s failure to consider his post-traumatic stress disorder (PTSD)) and not
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by the Arizona Supreme Court. The state counters that reconsideration by the Arizona Supreme Court was
valid, because Supreme Court precedent was not in effect when it first heard his appeal and because
resentencing by a trial court is not necessary to remedy the Arizona Supreme Court’s original failure to
consider his PTSD.

ISSUES

1 Was the Arizona Supreme Court required to apply then-current Supreme Court caselaw and grant
McKinney resentencing by a jury? 

2 Even if not, was McKinney nevertheless entitled to resentencing by a trial court?

FACTS

In 1991, when he was 23 years old, James McKinney and his half-brother, Hedlund, committed five separate
burglaries. In the last two, the pair killed the victims in their homes. In one, either James or Hedlund stabbed
Christine Mertens multiple times and then shot her in the back of the head. In the other, about two weeks
later, either James or Hedlund shot Jim McClain in the back of the head while he was asleep in his bedroom.

The state tried McKinney and Hedlund together before two different juries. McKinney’s jury found him guilty
of two counts of first-degree murder. (Hedlund’s jury found him guilty of one count of first-degree murder
and one count of second-degree murder.)

At sentencing, McKinney sought leniency based on 11 mitigating circumstances, including his PTSD.
McKinney’s PTSD was a result of severe abuse and neglect as a child. He and his siblings “suffered regular and
extensive physical, verbal, and emotional abuse.” As his sister explained, their childhood was “horrible. It was
scary. It seems like we were all stressed out wondering when the next time we were getting beat; wondering
when we were going to eat next.”

In support of his PTSD claim, McKinney called a psychologist, who testified that he had diagnosed McKinney
with “PTSD resulting from the horrific childhood McKinney had suffered.” The psychologist said that
McKinney had a tendency to withdraw from stressful situations and to “be emotionally overwhelmed by
environmental stress and act in poorly-judged ways just to reduce the internal emotional turmoil.” He
concluded that the burglaries may have “triggered something” in McKinney, potentially resulting in “some
kind of reflexive kind of thinking, some emotional kind of thinking rather than logical, reflective assessment
of the alternatives.”

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The trial judge accepted the psychologist’s diagnosis and noted that McKinney’s childhood was “beyond the
comprehension and understanding of most people.” Still, the judge declined to consider McKinney’s PTSD as
mitigating evidence, because, even if McKinney’s traumatic childhood contributed to his PTSD, the judge
found no “credible evidence” that McKinney’s PTSD “in any way affected his conduct in this case.” (Arizona
law at the time prohibited a judge from considering nonstatutory mitigating evidence that lacked a causal
connection to the crime.) The judge sentenced McKinney to death, and the Arizona Supreme Court affirmed.

In 2003, McKinney filed a federal habeas corpus petition. McKinney argued that the trial judge was required
to consider his PTSD as mitigating evidence under Eddings v. Oklahoma, 455 U.S. 104 (1982), which prohibits
a capital sentencer from refusing as a matter of law to consider relevant mitigating evidence.

The district court denied relief, and a three-judge panel of the Ninth Circuit affirmed. But the en banc Ninth
Circuit reversed. The full court ruled that Arizona courts violated Eddings by refusing to consider McKinney’s
PTSD as mitigating evidence. (The Ninth Circuit went further and ruled that Arizona courts had violated
Eddings in death penalty cases over the entire period between 1989 and 2005, affecting at least 19 other
capital cases.) It remanded to the district court “with instructions to grant the writ with respect to McKinney’s
sentence unless the state, within a reasonable period, either corrects the constitutional error in his death
sentence or vacates the sentence and imposes a lesser sentence consistent with the law.” The state sought
review in the Supreme Court, but the Court declined.

The state then filed a motion in the Arizona Supreme Court for a new, independent review of McKinney’s
sentence. McKinney opposed the motion, maintaining that he was entitled to resentencing by a jury under
Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016), both of which require juries,
not judges, to make the findings necessary to impose a death sentence. Nevertheless, the Arizona Supreme
Court granted the state’s motion, ruling that McKinney was not entitled to resentencing by a jury, because his
case was final before the Court required such resentencing in Ring and Hurst. The Arizona Supreme Court
went on to conduct an “independent review” of McKinney’s sentence, but concluded that his PTSD was
entitled to little weight because “it bears little or no relation to his behavior during Mertens’ murder.” The
court affirmed McKinney’s death sentence. This appeal followed.

CASE ANALYSIS

McKinney’s case raises two issues. Let’s take them one at a time.

Was McKinney entitled to resentencing by a jury under current law?

McKinney argues that he was entitled to resentencing by a jury under Ring and Hurst and that the Arizona
Supreme Court erred in conducting its “independent review.” McKinney contends that, under Supreme
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Court precedent, current law applies to all pending cases on direct review or those that are not yet final. He
says that his case was not yet final when the Arizona Supreme Court reconsidered his sentence. According to
McKinney, that’s because the Arizona Supreme Court reopened his case for the very purpose of
reconsidering his sentence, and sentencing, or in this case resentencing, is a fundamental part of a capital
defendant’s case.

McKinney contends that Ring and Hurst were applicable law when the Arizona Supreme Court reconsidered
his sentence, again, when his case was not yet final. He notes that Ring and Hurst require a jury, not a judge,
“to find each fact necessary to impose a sentence of death.” Because Ring and Hurst applied when the
Arizona Supreme Court reconsidered his sentence, and because those cases require a jury, not a judge, to
make findings necessary to impose a sentence of death, McKinney claims that the Arizona Supreme Court
violated his constitutional rights by refusing to submit his resentencing to a jury.

Arizona counters that the Arizona Supreme Court did not need to apply Ring and Hurst, because its
reconsideration was a collateral review, not a direct review, of McKinney’s case. The state contends that a
“conditional habeas order” like the one issued by the Ninth Circuit can never reopen state direct review,
especially when, as here, it permissively gives state courts the chance to “correct the constitutional error,”
without even mentioning mandatory resentencing or new direct review. It says that the Arizona Supreme
Court itself has “repeatedly concluded” that this kind of proceeding is “not part of state court direct review”
in other similar cases and that the “contours” of the proceeding show that it was part of collateral, not direct,
review. The state claims that under Court precedent, the Court must accept the Arizona Supreme Court’s
own conclusion as to whether it was proceeding on a new direct appeal. Because the Arizona Supreme
Court’s resentencing was not part of direct review, the state asserts that the state courts did not need to
submit the resentencing to a jury under Ring and Hurst.

Was McKinney entitled to resentencing in a trial court, notwithstanding Ring and Hurst?

McKinney argues that even if he was not entitled to resentencing by a jury under Ring and Hurst, he was
nevertheless entitled to resentencing in a trial court because a violation of Eddings requires resentencing in
the trial (not appellate) court. McKinney claims that the Arizona courts violated Eddings at sentencing and
on appeal and that the only remedy that the Court has recognized for Eddings violations is resentencing in
the trial court. He says that the Arizona Supreme Court reconsidered his sentence as an appellate court, not
as a trial court, and that his resentencing was therefore invalid. McKinney contends that Court precedent
supports these claims.

McKinney also contends that this is the only way to cure a record that is “irrevocably tainted by the Eddings
error.” He says that the Arizona courts can only remedy their Eddings violation by offering him a chance to
present new or different mitigating evidence— evidence that is not tainted by the error in the first place. And
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he contends that only a trial court, not an appellate court, can provide a forum for introducing this kind of
evidence. Moreover, he asserts that the scientific understanding of PTSD has evolved since his sentencing
over two decades ago and that the Arizona Supreme Court’s reliance on the outdated evidence at his original
sentencing violates Eddings. He claims that the courts can only remedy this violation by allowing him to
present new or different evidence in a trial court.

Arizona counters that McKinney’s “sweeping” claim that it can only remedy its Eddings violations by
resentencing McKinney in a trial court is “unwarranted and would undermine the interests of justice.” The
state says that McKinney’s approach “would require the Court to disavow prior suggestion that appellate
correction in the Eddings context was appropriate,” and would reopen “long-ago-final” convictions for trial-
court resentencing. The state claims that this is particularly inappropriate in McKinney’s case, where the trial
court produced a thorough mitigation record. It contends that the Court has previously recognized that
independent appellate reweighing can cure trial-level errors in capital resentencing. It says that reweighing at
the Arizona Supreme Court in McKinney’s case makes sense, because the Ninth Circuit concluded that the
original error (the Eddings violation) occurred in that court. Finally, the state suggests that there may have
been no Eddings violation anyway, because “the Arizona Supreme Court did not categorically exclude
mitigation from consideration.” For these reasons, the state says that there is no reason to remand for a trial-
court resentencing.

SIGNIFICANCE

The case is critically important in that it will determine whether McKinney’s death sentence, affirmed most
recently by the Arizona Supreme Court, stands. If the Court rules for McKinney on either issue, it could
vacate the Arizona Supreme Court’s ruling and order yet another round of resentencing. More particularly, if
the Court rules for McKinney on the first issue, it could require the Arizona courts to resentence McKinney
by a jury; if it rules for McKinney on the second issue, it could require the state to resentence McKinney in a
trial court. Either way, a ruling for McKinney will give him another shot to present mitigating evidence,
including new and different mitigating evidence that might weigh more heavily in his favor. (As McKinney
argues, our understanding of PTSD has evolved significantly since his first sentencing hearing. New evidence
about PTSD, or its effects on McKinney’s thoughts and behavior, could significantly change the balance of
mitigating and aggravating evidence at sentencing.) On the other hand, if the Court rules for the state on
both issues, McKinney’s sentence will stand.

Beyond McKinney’s case, the first issue—whether Ring and Hurst apply to state courts’ resentencing
procedures after a federal habeas court strikes an initial sentence that occurred before Ring and Hurst were
decided—will probably have limited impact. That’s because there are probably relatively few cases that fall
into this class, and perhaps even fewer in states with resentencing-after-habeas procedures like Arizona’s,
which do not provide for resentencing by a jury. /
In contrast, the second issue—whether state courts must grant resentencing by a trial court in order to
remedy an Eddings violation—will have a broader impact. A ruling in favor of McKinney could also require
resentencing for at least 19 other cases in Arizona alone, and more cases in other states that have refused to
grant resentencing by a trial court to remedy an Eddings violation. As the state points out, this could affect
“long-ago-final” capital sentences. That’s because the original sentencing in many of these cases could have
occurred over 30 years ago, potentially starting soon after Eddings came down in 1982.

This case does not obviously raise some of the more contentious death-penalty issues that have sharply
divided the Court in recent Terms. Instead, this case seems to raise only highly technical issues in need of
Court resolution. So we’re unlikely to see the kind of biting arguments between the justices that we have
seen in other recent death penalty cases on both the regular and the “shadow” dockets. And given the
technical and procedural nature of the case, we may see some surprising alignments.

Steven D. Schwinn is a professor of law at the University of Illinois Chicago John Marshall Law School and
coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can
be reached at sschwinn@jmls.edu or 312.386.2865.

PREVIEW of United States Supreme Court Cases 47, no. 3 (December 2, 2019): 47 49. © 2019 American Bar
Association

ATTORNEYS FOR THE PARTIES

For Petitioner James Erin McKinney (Neal Kumar Katyal, 202.637.5600)

For Respondent Arizona (Oramel Horace Skinner, 602.542.8327)

AMICUS BRIEFS

In Support of Petitioner James Erin McKinney

Advocates for Human Rights and the World Coalition Against the Death Penalty (Amy Bergquist,
612.341.3302)

American Civil Liberties Union, et al. (Lisa Schiavo Blatt, 202.434.5050)

Arizona Capital Representation Project and Arizona Attorneys for Criminal Justice (David Joseph
Euchner, 520.724.6800)
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 Capital Punishment Center of the University of Texas School of Law (Jordan M. Steiker, 512.232.1346)

Lawyers’ Committee for Civil Rights Under Law (John Howard Fleming, 212.389.5000)

National Association of Criminal Defense Lawyers (John Robert Mills, 888.532.0897)

Roderick & Solange MacArthur Justice Center (Amir H. Ali, 202.869.3434)

In Support of Respondent Arizona

Arizona Prosecuting Attorneys’ Advisory Council (Sheila Sullivan Polk, 602.542.7222)

Arizona Voice for Crime Victims (Colleen Clase, 480.600.2661)

Criminal Justice Legal Foundation (Kent S. Scheidegger, 916.446.0345)

Utah, et al. (Tyler Green, 801.538.9600)

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