JACKSON, Mississippi — Prosecutors argued Wednesday that no U.S. Supreme Court decision ties the hands of the Mississippi appellate courts in upholding death sentences even when a trial jury considers inadmissible evidence.
Arguments before the Mississippi Supreme Court came in a post-conviction petition by Roger Gillett, who was sentenced to death 2007 for his role in the deaths of a Hattiesburg couple. The appeal addresses only the sentencing phase of Gillett's trial.
A series of U.S. Supreme Court decisions have addressed the issues of "harmless error" and "reweighing factors" in death penalty. But Special Assistant Mississippi Attorney General Cameron Benton told the Mississippi court none of those decisions made invalid a state law that says the state court can uphold murderers' death sentences, even if their sentencing juries wrongly considered some adverse evidence.
In Mississippi, the death penalty can be imposed by a jury only against a defendant found guilty of capital murder, and the jury must find certain aggravating circumstances. Aggravating circumstances include particularly heinous acts of violence, violent criminal histories or other factors that warrant the death penalty as determined by judges and juries.
However, in 2002, the U.S. Supreme Court said jurors, not judges, had to decide whether sufficient aggravating circumstances existed to support a death penalty decision. Then, in 2006, the U.S. Supreme Court said in a California case that a death sentence must be set aside if a jury considered inadmissible evidence that otherwise would not have been before it.
Gillett has seized on the 2006 decision as applicable to his case.
"The citizens of the state should be subject to the same protections when there is inadmissible evidence (allowed) to support an aggravator," said Scott Johnson with the Office of Capital Post-Conviction Counsel.
While in custody in Kansas, Gillett attempted to escape. That crime was one of the aggravating factors that prosecutors presented jurors to support the death penalty.
The Mississippi Supreme Court found in 2010 that the attempted escape issue was harmless error and there was sufficient evidence to convict Gillett in spite of it.
Johnson said by removing the escape as an aggravating factor prosecutors would have 25 percent of their evidence to support a death sentence.
"If there is prejudicial evidence to an aggravator found ... (the case) must be remanded for a new sentencing hearing," Johnson said.
Benton, on behalf of the state, said there was overwhelming evidence to convict Gillett and for the jury to sentenced him to death.
"Harmless error is still valid and still applies. Reweighing is permissible. He was afforded a right to a jury trial and due process," Benton said.