Pensinger v. California

Background

A man convicted of murdering an infant had his jury find two special circumstances: the killing happened during a kidnap and that it involved torture. The California Supreme Court later struck the torture finding because the jury was not told the prosecution had to prove intent to torture. Even though that court said the instruction error was not harmless, it nonetheless upheld the defendant’s death sentence and explained in a short added paragraph that the error did not change the evidence the jury considered.

Reasoning

The central question was whether the California court’s short review met this Court’s earlier instruction in Clemons v. Mississippi about how state courts must handle such errors. In Clemons, a state court could either reweigh the aggravating and mitigating evidence itself or show beyond a reasonable doubt that the jury would have imposed death without the error. Justice O’Connor (joined by Justice Kennedy) argued the California court did neither and instead treated the error as harmless simply because it did not change the mix of evidence before the jury.

Real world impact

The Supreme Court denied review, so the California decision upholding the death sentence stands for now. That leaves the defendant’s sentence intact and leaves open how lower courts may treat similar jury instruction errors. The dissent warned that the California approach could improperly excuse many jury-instruction mistakes in other death-penalty cases.

Dissents or concurrances

Justice O’Connor dissented and would have granted review, vacated the death sentence, and sent the case back for a proper reweighing or harmlessness finding under Clemons.