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Divided on Death Penalty, Justices to Hear Capital Case (2)

June 10, 2019, 1:39 PMUpdated: June 10, 2019, 11:12 PM

The U.S. Supreme Court took up a capital case June 10 that could help death row prisoners upend their sentences.

After a series of heated fights this term on the ultimate punishment, the justices will hear arguments next term about whether courts need to apply current law when reviewing old death sentences.

“We are glad that the Supreme Court agreed to hear this important case and we look forward to argument in the Fall,” said former acting U.S. solicitor general Neal Katyal, of Hogan Lovells, who represents the defendant James Erin McKinney on appeal.

The justices’ decision to grant review “is a positive sign that the court is not going to throw up its hands and ignore unconstitutional death sentences,” said G. Ben Cohen of the Promise of Justice Initiative in New Orleans, who filed an amicus, or friend-of-the-court, brief supporting the defense.

The case also “presents an opportunity to reaffirm the importance of juries in weighing the evidence about whether an inmate should live or die,” said John Mills of Phillips Black, who also filed a defense amicus brief.

McKinney was convicted of multiple murders in 1993, both burglaries turned deadly. He beat and stabbed Christine Mertens several times before holding her face down on the floor and shooting her in back of the head. Two weeks later, he shot a sleeping 65-year-old Jim McClain in back of the head.

The trial court sentenced him to death after weighing aggravating and mitigating factors, deciding the mitigating ones weren’t enough to call for leniency.

More than 20 years later, the U.S. Court of Appeals for the Ninth Circuit found that Arizona state courts were wrongly weighing factors and that in McKinney’s case, they were wrong not to consider his suffering from Post Traumatic Stress Disorder as a result of his abusive childhood.

But on further review last year, the Arizona top court ruled against him, applying the law as it was in the 1990s rather than today.

After the Ninth Circuit’s reversal, McKinney said he’s entitled to a new sentencing before a jury as required by the Supreme Court’s 2002 decision in Ring v. Arizona. The state top court disagreed, saying it was the right venue for review instead of a jury because his case was “final” before Ring.

McKinney says that courts around the country are split on how to approach cases like his and that the issue in his appeal could affect at least 20 capital cases in Arizona alone.

Attempting to talk the justices out of taking the case, the state cast doubt on courts being split. It urged the justices of the need for finality in criminal proceedings, particularly in this case involving the killing of “two blameless and essentially incapacitated victims.”

Katie Conner, spokesperson for the Arizona Attorney General’s Office, said the state believes the Arizona Supreme Court already addressed the appeals court’s concerns, and that there was no need for the justices to get involved.

“That being said, we feel confident in our arguments and believe we will ultimately prevail at the federal level as well,” Conner said.

But the state “cannot pretend that the last two decades of law never happened,” said David J. Euchner of the Pima County, Ariz., public defender’s office, which also supported McKinney’s effort to get the case in front of the justices.

He said McKinney “was denied a fair sentencing proceeding in 1993, as were so many other people who received death sentences because our state courts applied the wrong law.”

He accused the state of wanting to “whitewash the process for imposing the death penalty in the 1990s that we now know was flawed.”

The case is McKinney v. Arizona, U.S., 18-1109, review granted 6/10/19.

(Adds comment from Arizona Attorney General's Office.)

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at