The Supreme Court today affirms the death penalty in People v. Sivongxxay by a 5-2 vote. All seven justices agree that the conviction must stand, but two justices want to reverse the special circumstances finding that made the defendant eligible for capital punishment.
The point of disagreement is the defendant’s waiver of a jury trial on the special circumstances issue. The court’s opinion by Chief Justice Tani Cantil-Sakauye holds the waiver did not comply with a statute (although it was constitutionally adequate), but the error did not require automatic reversal and was harmless.
Justices Goodwin Liu and Mariano-Florentino Cuéllar each write their own separate opinions, asserting that the waiver violated both the constitution and the statute and that the error requires automatic reversal. (Justice Liu also disagrees with the majority’s conclusion that the defendant’s waiver of a penalty phase jury was sufficient.) Justice Liu says the court’s harmless error holding “may understandably cause a bit of whiplash: The court, having found error under the statute, excuses the error through reasoning that defeats the statute’s very purpose.”
A trial judge was the fact finder on all issues, and the defendant claimed his waiver of a jury trial in general — not just as to the special circumstances issue — was not a knowing one. The court rejects that argument, concluding, “the circumstances surrounding defendant’s jury waiver demonstrate that it was knowing and intelligent.” However, the court also “emphasize[s] the value of a robust oral colloquy [by a trial judge] in evincing a knowing, intelligent, and voluntary waiver of a jury trial” and makes specific — but non-exclusive — recommendations about what a judge should be telling a defendant who is considering a waiver.
Here’s an interesting fact about the case: the opinion indicates that current Fifth District Court of Appeal Justice Jennifer Detjen was the trial prosecutor.