At the Supreme Court’s conference on Feb. 18th, the Court considered whether to accept Utah v. Ott. Ott reports the Utah Supreme Court's finding of ineffective assistance of counsel where trial counsel did not object to the state's impact victim proof.
The Ott Petition for Writ presents the Supreme Court with an opportunity to decide whether the Court should overrule any remaining precedent in Booth v. Maryland 482 U.S. 496 (1987). Of interest is whether the Court will decide if the Eighth Amendment erects a per se bar against a victim's family members' characterizations and opinions about the crime, defendant, and appropriate sentence.
The Utah Supreme Court held in Utah v. Ott that counsel was objectively deficient for failing to object to victim impact evidence that addressed Mr. Ott’s character, chances for rehabilitation, and deserved sentence because such victim impact evidence clearly violates the Eighth Amendment when introduced in capital sentencing hearings.
The facts of Ott from the Utah opinion are:
On one horrific night in the summer of 2002, Mr. Ott broke into the home of his wife, Donna Ott, who had recently filed for divorce. Knife in hand, Mr. Ott attacked Mrs. Ott’s boyfriend, Allen Lawrence. He also stabbed his stepdaughter, Sarah Gooch. Mr. Ott then set the house on fire. All of the residents of the house escaped except Lacey Lawrence, Mr. Lawrence’s six-year-olddaughter, who died in the fire. Mr. Ott eventually entered an Alford plea of guilty to aggravated murder in connection with Lacey’s death and pled guilty to other charges. He was sentenced by a jury to life in prison without the possibility of parole... We hold that Mr. Ott’s counsel provided ineffective assistance because counsel failed to object to portions of the victim impact evidence.
In Payne v. Tennessee, the Supreme Court held that the Eighth Amendment does not bar, per se, victim impact evidence, but victim impact evidence may be inadmissible if the evidence is so prejudicial that it makes sentencing fundamentally unfair under the Due Process Clause.
Utah Prosecutors are urging the Court to accept the case and to get rid of whatever is left of Booth. The Petition directs the court to Booth and states:
In Booth..., this Court held that the Eighth Amendment erected a per se bar against a capital sentencing jury considering two types of victim evidence: (1) "victim impact evidence," which relates to the victim’s personal characteristics and the emotional impact of the victim’s murder on family members, and (2) the victim’s family members’ characterizations and opinions about the crime, defendant, and appropriate sentence. In Payne v. Tennessee, the Court partially overruled Booth, holding that the Eighth Amendment did not bar victim impact evidence or the first type of victim evidence. Payne expressly left unanswered whether the Eighth Amendment still bars the second type of victim evidence.
The questions presented are:
1. Should this Court overrule the remaining part of Booth holding that the Eighth Amendment erects a per se bar against a victim’s family members’ characterizations and opinions about the crime, defendant, and appropriate sentence?
2. To the extent that any part of Booth survives, does it apply to a sentencing proceeding in which death is not an option.
Counsel for Ott thinks not and says:
The Court should not overrule Booth's proscription of victim opinion testimony. Booth is an important part of the fabric of our capital sentencing law which has been followed by the lower courts without difficulty for over twenty years. The portion of Booth pertaining to victim opinion evidence was soundly reasoned, and there is no persuasive reason to reconsider it.
Many Court watchers think that there is good reason to believe that the Court will accept the petition in Utah v. Ott to decide what, if anything, is left of Booth and whether there are limits as to victim witness proof.