"Factor (k)" Jury Instructions—Ornaski v. Belmontes (SCOTUS Preview)

Last May, the United States Supreme Court granted certiorari to hear Ornaski v. Belmontes (05‑493), a case that considers whether or not forward-looking mitigation evidence may be considered at sentencing in a capital case.^[1] In Belmontes, the Supreme Court will consider applications of its previous rulings to determine two issues:

1. Whether the holding in Boyde v. California, 494 U.S. 370, (1990) confirms the constitutional sufficiency of California's "unadorned factor (k)" instruction when a defendant presents mitigating evidence of his background and character which relates to, or has a bearing on, his future prospects as a life prisoner; and
2. Whether California's "unadorned factor (k)" instruction is constitutionally inadequate to inform jurors that they may consider "forward-looking" mitigation evidence.

The “unadorned factor (k)” instruction is a catch-all function which instructs jurors to consider any evidence in death penalty cases that might cause them to give a defendant life imprisonment.

In Boyde v. California, the Supreme Court approved unadorned factor (k) instructions, holding that the instruction was invalid if it created “a reasonable likelihood that the jury understood the instruction in a manner that resulted in its failure to consider the [mitigating] evidence.”^[2]

This case was considered by the U.S. Supreme Court last year in light of its decision in Brown v. Payton, 544 U.S. 133 (2005). There, the Court held that factor (k) instructions did not preclude jurors in death penalty cases from taking into account a defendant’s post-crime behavior and remanded the case for further consideration.^[3]

On remand, the 9th Circuit Court of Appeals found that the instructions had confused jurors by leading them to consider the crime and Belmontes’ violent past instead of present and probable future as a model prisoner.^[4] Arguments this time will focus on the forward‑looking evidence.

Background
At Mr. Belmontes’ capital murder trial, the court rejected the instructions submitted by the defense which advised that, “[y]ou should not limit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances…as reasons for not imposing the death penalty.”^[5]

Instead, the judge listed a number of factors that jurors could use to decide whether Mr. Belmontes should receive life imprisonment or a death sentence. The factors included Mr. Belmontes’ age, his prior felony convictions, and “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”^[6]

Based on the court’s instructions, the jury sentenced Mr. Belmontes to death. The California Supreme Court upheld the sentence.

The outcome of this case could affect other state capital cases if the Supreme Court upholds the California standard. Oral arguments are scheduled for October 3, 2006.

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[1] United States Supreme Court Order List for May 1, 2006.
[2] Boyde v. California, 494 U.S. 370, 388, (1990). See also Teague v. Lane, 489 U.S. 288 (1989).
[3] Brown v. Payton, 544 U.S. 133 (2005).
[4] Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005).
[5] Id. at 1110.
[6] Id. at 1130.