PHOENIX — The U.S. Supreme Court has agreed to decide whether someone convicted and sentenced to death row decades ago for two murders will get a chance now to present evidence of his abusive childhood to a jury.
In a brief order, the justices said they will decide whether James McKinney is entitled to be resentenced under the law as it existed in 1991 when he committed the burglaries and murders, or the law as it exists now.
The difference could be a matter of life and death.
A federal appeals court already has ruled that McKinney should have been able to argue that what happened to him as a child — described by the trial judge as “horrific” and “beyond the comprehension and understanding of most people” — should have been considered at that time. But the trial judge did not, saying state law at that time allowed him to weigh only specific factors in deciding whether to spare McKinney’s life.
That limit was declared unconstitutional by the federal appellate court, ruling McKinney was entitled to be resentenced.
What happened, though, is that prosecutors, rather than send the case back to the trial court, simply asked the Arizona Supreme Court to review the record. And the state’s high court concluded that the death sentence was merited, even after looking at the additional information.
Attorney Neal Katyal, who is representing McKinney, told the U.S. Supreme Court that was wrong, and not only for the failure to send the case back to the trial court. He also pointed out that in 2002 the justices voided another Arizona law, one that allowed judges and not juries to determine whether a death sentence should be imposed.
With Monday’s order, the nation’s high court will determine whether McKinney does get a new sentencing hearing to try to escape the death penalty, and whether he’s entitled to make his case to a jury even though that wasn’t a requirement at the time of his original trial or appeal.
What the justices rule is likely to have implications beyond this case.
It would set the precedent for other old cases where a defendant is trying to get a federal court to review the propriety of a sentence. That includes co-defendant and half-brother Charles Hedlund whose own public defender is seeking Supreme Court review.
And it comes as courts in different states have reached disparate conclusions.
In documents filed by Assistant Attorney General David Cole, McKinney and Hedlund committed a series of five residential burglaries in less than a month in the Phoenix area.
The two at issue are the fourth and fifth, both in Chandler.
In No. 4 they broke into the home of Christine Mertens, beating and stabbing her, with McKinney ultimately holding her face down to the floor and shooting her in the back of the head. They escaped with about $120 in cash.
In the fifth they broke into the home of Jim McClain, with Hedlund shooting him in the head while he was sleeping. They took his watch, three hand guns and his car.
Both were sentenced to death.
Katyal told the justices there was massive evidence of post traumatic stress disorder based on McKinney’s childhood.
McKinney’s aunt said he, Hedlund and McKinney’s two sisters shared a room where there were no sheets on the bed, with dogs, cats, snakes, a goat and a monkey kept in the room where they “regularly defecated and urinated.” There also was evidence of extensive physical, verbal and emotional abuse, including a beating with a garden hose.
At his sentencing before a trial judge, a psychologist testified McKinney had PTSD “resulting from the horrific childhood” he had suffered, leaving him “susceptible to manipulation and exploitation.”
The trial judge acknowledged the abuse but said that, under Arizona law at that time, he could not consider any of that in deciding whether leniency was appropriate.
That led to the first appeal and the ruling by the Arizona Supreme Court affirming the sentence — the procedure that Katyal now wants the U.S. Supreme Court to rule was improper.
Ryan Anderson, a spokesman for the Attorney General’s Office, said his agency believes the Arizona Supreme Court did nothing wrong when it affirmed McKinney’s sentence without sending the case back to a trial court.
“We feel confident in our arguments and believe we will ultimately prevail at the federal level as well,” he said.