Article Comment 

Constitutionality of 'harmless error' law raised


Jack Elliot Jr./The Associated Press



JACKSON -- The Mississippi Supreme Court may decide the constitutionality of a 1994 state law that allows it to find "harmless" errors committed by juries in death penalty cases. 


Roger Lee Gillett challenged the law in his post-conviction petition that seeks to overturn his death sentence or to get him a new trial. 


The law was enacted after the U.S. Supreme Court ruled in a Mississippi case in 1990 that state appellate courts can uphold murderers' death sentences, even if their sentencing juries wrongly considered some adverse evidence. 


Chandler Clemons had challenged the reweighing of the sentencing evidence in his case. The case dealt only with the sentencing phase of a capital murder trial, not Clemons' convictions. 


The U.S. Supreme Court stopped short of upholding the Mississippi death sentence of Clemons. But it ruled that describing a crime to juries as "especially heinous, atrocious or cruel" without further definition -- as was done in Clemons' case -- was unconstitutionally vague. That ruling has resulted in several death sentences being overturned in Mississippi. 


Clemons and nearly two dozen other Mississippi death row inmates were ultimately re-sentenced to life in prison. For the rest of the 1990s, no executions took place in Mississippi. The 2002 execution of Jessie Derrell Williams was the state's first since 1989. 


Now, members of the Mississippi Supreme Court -- none of whom were serving in 1990 -- may determine if the 1994 law is unconstitutional. Chief Justice Bill Waller Jr. has asked both sides for briefs over the next three months addressing the issue Gillett raised in the post-conviction appeal. 


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. 


In 2006, the U.S. Supreme Court said 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 those decisions in his post-conviction appeal. He claims his due process rights were violated and the state law is unconstitutional. 


Gillett was convicted in 2007 in Forrest County on two counts of capital murder for his role in the deaths of a Hattiesburg couple and the transporting of their bodies to Kansas in a freezer. 


While in custody in Kansas, he 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. 


Gillett's attorneys now argue that Mississippi law "exclusively assigns the weighing to the jury" by letting juries decide both the facts that should be considered and the actual sentence. 


"The jury is assigned the duty of imposition of sentence. The role of each independent fact found by the jury is not independent from other aggravating facts but is part of a set that are considered collectively," according to Gillett's post-conviction brief. 


The attorney general's office argued that the ruling in Clemons' case was that an appeals court, such as the Mississippi Supreme Court, can "reweigh the evidence or conduct a harmless error analysis" based on what the jury found. 


The attorney general argued that courts are not required to reverse a death sentence when they find such "harmless errors" would not have affected the verdict.




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