, Shinn v. Kayer :: 592 U.S. ___ (2020) :: US LAW US Supreme Court Center

Shinn v. Kayer :: 592 U.S. ___ (2020) :: US LAW US Supreme Court Center

    USLaw.Site Opinion Summary and Annotations

    Kayer murdered Haas in 1994. Kayer was convicted of premeditated first-diploma homicide, refused to completely cooperate with a mitigation specialist, and refused to comply with a continuance. The court docket ruled him competent to make that desire. At sentencing, Kayer once more refused a suggestion of more time and said he could not cooperate.

    Arizona regulation authorized a demise sentence most effective if a decide discovered as a minimum one anxious situation and discovered no mitigating circumstance enough to name for leniency. The judge located two anxious factors past a reasonable doubt: Kayer's 1981 conviction for first-diploma burglary and that Kayer murdered Haas for “pecuniary gain.” The court docket found one nonstatutory mitigator: his significance in his son’s lifestyles. Judge Kiger sentenced Kayer to loss of life; the Arizona Supreme Court affirmed.

    Kayer sought postconviction comfort, arguing ineffective assistance of counsel because his legal professionals failed to analyze mitigating circumstances at the outset of their representation. The choose taken into consideration evidence of Kayer’s addictions to alcohol and playing; his coronary heart assault weeks before the murder; intellectual illness, together with a analysis of bipolar disorder; and of his early life difficulties. The court docket determined that trial counsel’s performance become not deficient because Kayer had refused to cooperate and, as an alternative, that there has been no prejudice because it had considered the assertions of mental illness, bodily illness, jail conditions, youth development, and addictions. The Arizona Supreme Court denied review.

    Kayer filed an unsuccessful federal habeas petition, 28 U.S.C. 2254. The Ninth Circuit reversed.

    The Supreme Court vacated. A state prisoner may not acquire federal habeas remedy with respect to an ineffective assistance claim that became adjudicated at the deserves in nation courtroom except the decision changed into opposite to, or involved an unreasonable utility of, truely hooked up federal regulation, as decided by means of the Supreme Court. The Arizona selection isn't so manifestly wrong that its error lies “past any possibility for fair-minded confrontation.” The Ninth Circuit “essentially evaluated the deserves de novo, only tacking on a perfunctory announcement" that the nation courtroom’s choice changed into unreasonable and that “there's an affordable possibility Kayer’s sentence might were less than death.” The maximum probably purpose for Judge Kiger’s determination is that the new mitigation evidence supplied inside the submit-conviction proceeding did now not create a massive chance of a exclusive sentence. A fair-minded jurist could see Kayer’s beyond conviction as having substantial weight. Fair-minded jurists additionally may want to take a special view of Kayer’s mitigating proof.


    Primary Holding
    Supreme Court vacates a Ninth Circuit order granting habeas relief on grounds of useless assistance in a trial for premeditated first-diploma murder.
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    on petition for writ of certiorari to the us court of appeals for the ninth circuit

    No. 19–1302. Decided December 14, 2020

    Per Curiam.

    The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the energy of federal courts to provide writs of habeas corpus based on claims that had been “adjudicated at the deserves” via a state court docket. 28 U. S. C. §2254(d). When a state court has applied in reality mounted federal law to reasonably determined records within the system of adjudicating a declare on the deserves, a federal habeas courtroom won't disturb the state court docket’s decision except its errors lies “past any possibility for fairminded war of words.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In this situation, the Court of Appeals erred in ordering issuance of a writ of habeas corpus despite adequate room for reasonable confrontation approximately the prisoner’s useless-assistance-of-counsel declare. In so doing, the Court of Appeals truely violated this Court’s AEDPA jurisprudence. We therefore grant the petition for certiorari and vacate the judgment beneath.



    Respondent George Kayer murdered Delbert Haas in 1994. Haas, Kayer, and Lisa Kester have been on a journey to gamble in Laughlin, Nevada. While there, Kayer borrowed money from Haas and lost it playing. Kayer then devised a plan to rob Haas, however Kester puzzled whether or not he should escape with robbing a person he knew. Kayer replied, “ ‘I guess I’ll simply have to kill him.’ ” State v. Kayer, 194 Ariz. 423, 428, 984 P.2d 31, 36 (1999). While the three drove domestic, Kayer took a detour to a secluded location and stopped on the aspect of a dirt street. After Haas exited the automobile to urinate, Kayer grabbed a gun, sneaked as much as him, and shot him pointblank in the head. After dragging Haas’ frame into a few trees, Kayer stole his wallet, watch, and jewelry, and drove away. Kayer quickly realized that he had forgotten to take Haas’ residence keys, and he consequently back to the scene of the crime. Fearing that Haas may not be lifeless, Kayer shot him within the head again at the same time as retrieving his keys. Subsequently, Kayer stole quite a few firearms and other things of price from Haas’ domestic after teaching Kester to use a police scanner to look out for police pastime. The two offered a number of the stolen gadgets below aliases, however Kayer become arrested after Kester went to the police. After a jury trial earlier than Judge William T. Kiger, Kayer turned into found responsible of premeditated first-degree murder and associated offenses.

    After being discovered guilty, Kayer “made clean his preference to expedite the sentencing process.” Id., at 429, 984 P. 2nd, at 37. He refused to completely cooperate with a mitigation specialist. When Kayer’s counsel stated that the specialist wished greater time to assess Kayer’s case, Kayer refused to comply with a continuance, and the trial court docket ruled him equipped to make that desire. At sentencing, the choose once more requested Kayer whether he would really like more time for investigation, but Kayer “refused the provide and said he might now not cooperate with [the specialist] irrespective of how long sentencing became not on time.” Id., at 429–430, 984 P. second, at 37–38.

    The courtroom proceeded to sentencing. At that time, Arizona regulation required a decide, now not a jury, to decide whether positive demanding instances had been established, and a judge changed into authorized to impose a sentence of demise most effective if at least one such anxious condition turned into proven and there has been no mitigating condition that became enough to name for leniency. See Ariz. Rev. Stat. Ann. §13–703 (Supp. 1998); cf. Ring v. Arizona, 536 U.S. 584, 609 (2002) (subsequently requiring juries “to discover an annoying circumstance essential for imposition of the death penalty”). In Kayer’s case, the choose located that the State had proved two annoying elements past an inexpensive doubt. First, the court docket concluded that Kayer have been “formerly convicted of a serious offense,” §thirteen–703(F)(2), based totally on his conviction for first-diploma burglary in 1981, see §13–703(H)(9); Kayer, 194 Ariz., at 433, 984 P. 2d, at forty one. Second, it decided that Kayer murdered Haas for “pecuniary advantage,” see §13–703(F)(5). On the opposite aspect of the balance, the courtroom discovered that Kayer had confirmed most effective one nonstatutory mitigator: his significance in his son’s life. Weighing the tense and mitigating factors, Judge Kiger sentenced Kayer to dying, and the Arizona Supreme Court affirmed his conviction and sentence.


    Kayer finally filed a petition for postconviction remedy in Arizona Superior Court. Among his many claims, Kayer argued that he obtained useless help of recommend because his attorneys failed to analyze mitigating circumstances on the outset of the criminal proceedings. The sentencing judge held a nine-day evidentiary hearing.

    Kayer’s evidence on the listening to broke down into four predominant categories: proof that he changed into addicted to alcohol and playing; proof that he had suffered a coronary heart attack approximately six weeks before the homicide; evidence of intellectual contamination, inclusive of a diagnosis of bipolar ailment; and proof that participants of his family had suffered from similar addictions and ailments within the beyond and that this had affected his formative years. See Kayer v. Ryan, 923 F.3d 692, 708–713 (CA9 2019) (describing proof in detail).

    The court denied alleviation after making use of the familiar two-component test from Strickland v. Washington, 466 U.S. 668 (1984). The court discovered that trial counsel’s performance become not deficient due to the fact Kayer had refused to cooperate with his mitigation team’s efforts to gather more mitigation evidence. And, in the alternative, the courtroom held that “if there had been a finding that the overall performance prong of the Strickland wellknown had been met, . . . no prejudice to the defendant can be found.” App. to Pet. for Cert. 189. The court docket brought that “[i]n mentioning this conclusion[, it] ha[d] taken into consideration the statement of intellectual infection, bodily illness, jail conditions, childhood improvement, and any alcohol or gambling addictions.” Ibid. The Arizona Supreme Court denied Kayer’s petition to study the denial of postconviction comfort. State v. Kayer, No. CR–07–0163–PC (Nov. 7, 2007).


    Kayer then filed an unsuccessful habeas petition in Federal District Court. See 28 U. S. C. §2254. Relevant here, the District Court rejected Kayer’s useless-assistance declare for failure to show prejudice. As an preliminary remember, the court docket concluded that Kayer could not “show prejudice because he waived an extension of the sentencing date and thereby waived presentation of the full-scale mitigation case.” Kayer v. Ryan, 2009 WL 3352188, *21 (D Ariz., Oct. 19, 2009) (mentioning Schriro v. Landrigan, 550 U.S. 465 (2007)). Moreover, the court reasoned that Kayer’s mitigation evidence “fell short of the kind of mitigation statistics that could have prompted the sentencing selection.” 2009 WL 3352188, *21.

    A divided Ninth Circuit panel reversed. On the question of trial recommend’s performance, the panel rejected the kingdom court docket’s judgment because, inside the judgment of the panel, Kayer’s lawyers have to have all started to pursue mitigation proof promptly after their appointment. And at the query of prejudice, the court performed its personal evaluate of the evidence and discovered that trial suggest’s alleged failings probable affected Kayer’s sentence. Based on a “comparison of Kayer’s case with different Arizona cases,” the panel drew two conclusions: first, that “the evidence he presented to the [state postconviction] courtroom become sufficient to set up a statutory mitigating circumstance” of intellectual impairment, 923 F. 3d, at 718, and second, that there was an inexpensive probability that the Arizona Supreme Court would have vacated Kayer’s demise sentence on direct review had it been presented with the mitigating evidence presented at the kingdom postconviction alleviation listening to. For those reasons, the panel majority observed that “there's an affordable opportunity Kayer’s sentence would have been less than death, and that the state [postconviction] court docket turned into unreasonable in concluding in any other case.” Id., at 723.

    Judge Owens dissented in relevant component, explaining that the Arizona postconviction court had not unreasonably implemented federal regulation in light of the stressful and mitigating circumstances in this example. In his view, Kayer’s mitigating evidence was “hardly overwhelming,” and he argued that almost all had given brief shrift to the “undisputedly sturdy disturbing issue” of pecuniary advantage. Id., at 727. The majority’s preserving, he concluded, resulted from “impermissibly substitut[ing] its own judgment that Kayer become prejudiced” for that of the state courtroom. Ibid.

    Arizona then sought, and the Ninth Circuit denied, rehearing en banc. Judge Bea authored a dissent from the denial of en banc assessment, which became joined via 11 other judges. See Kayer v. Ryan, 944 F.3d 1147, 1156 (2019). Judge Bea asserted that “the panel majority forged aside . . . AEDPA’s exceptionally deferential standard of review.” Id., at 1158. Instead, he wrote, the panel majority had implemented a “de-novo-masquerading-as-deference technique” that the “Supreme Court has again and again condemned.” Id., at 1168; see additionally id., at 1157, n. 1 (bringing up 14 cases because 2002 in which this Court has reversed the Ninth Circuit’s application of AEDPA). Under AEDPA and this Court’s precedent, he contended, “there [was] no ignoring the apparent conclusion that an inexpensive jurist should finish that Kayer become now not in reality prejudiced through his recommend’s failings in this situation.” Id., at 1164. The mitigating effect of Kayer’s new proof changed into, at nice, “tremendously controversial.” Id., at 1169 (inner quotation marks not noted). Applying the right trendy of assessment, Judge Bea defined that “it [was] viable that fairminded jurists ought to locate [Kayer’s] proof inadequate to set up an inexpensive opportunity of a specific final results.” Id., at 1168 (mentioning Richter, 562 U. S., at 102).

    After the denial of rehearing en banc, Arizona filed a petition for certiorari in this Court.



    Kayer asserts that his loss of life sentence became imposed in violation of his Sixth Amendment right to effective help of recommend. As the kingdom courtroom recognized, this Court’s selection in Strickland v. Washington, 466 U.S. 668 (1984), affords the proper framework for assessing that declare. Under Strickland, Kayer should display that his recommend furnished “deficient” performance that “prejudiced the defense.” Id., at 687. In the capital sentencing context, the prejudice inquiry asks “whether there may be an affordable probability that, absent the errors, the sentencer—together with an appellate court, to the extent it independently reweighs the proof—could have concluded that the balance of annoying and mitigating situations did not warrant loss of life.” Id., at 695. The Strickland trendy is “distinctly stressful.” Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). A affordable probability approach a “ ‘vast,’ now not simply ‘practicable,’ chance of a one of a kind result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Richter, 562 U. S., at 112).

    When an ineffective-assistance-of-recommend claim is offered in a federal habeas petition, a kingdom prisoner faces extra burdens. Among other matters, no remedy can be granted “with respect to any claim that changed into adjudicated on the deserves in State courtroom court cases unless the adjudication of the declare,” as applicable right here, “ended in a choice that turned into opposite to, or involved an unreasonable software of, certainly set up Federal law, as determined by using the Supreme Court of the United States.” 28 U. S. C. §2254(d).

    Here, the nation court implemented “the precise governing criminal principle . . . to the statistics of the prisoner’s case,” Lockyer v. Andrade, 538 U.S. 63, seventy five (2003) (inner citation marks left out), so the query is whether its decision concerned an “unreasonable utility of ” this Court’s precedent. To meet that popular, a prisoner need to display a long way extra than that the state court docket’s selection turned into “merely incorrect” or “even clean errors.” Virginia v. LeBlanc, 582 U. S. ___, ___ (2017) (according to curiam) (slip op., at three) (internal quotation marks omitted). The prisoner need to show that the nation courtroom’s choice is so glaringly incorrect that its errors lies “past any possibility for fairminded disagreement.” Richter, 562 U. S., at 103. Congress “supposed” this general to be “hard to meet.” Id., at 102.

    We have recognized the unique significance of the AEDPA framework in instances involving Strickland claims. Ineffective -help claims can function “as a way to break out policies of waiver and forfeiture,” Richter, 562 U. S., at one hundred and five, and they could drag federal courts into resolving questions of nation regulation. Moreover, we've got diagnosed that “the more trendy the rule, the extra leeway kingdom courts have.” Sexton v. Beaudreaux, 585 U. S. ___, ___ (2018) (in line with curiam) (slip op., at 8) (quoting Renico v. Lett, 559 U.S. 766, 776 (2010); citation changed). “[B]ecause the Strickland wellknown is a widespread preferred, a country court has even greater range to reasonably decide that a defendant has not glad that trendy.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).


    The Ninth Circuit resolved this example in a manner basically inconsistent with AEDPA. Most striking, the panel “basically evaluated the merits de novo, most effective tacking on a perfunctory declaration at the cease of its analysis maintaining that the country court’s decision changed into unreasonable.” Beaudreaux, 585 U. S., at ___ (slip op., at 7); see Richter, 562 U. S., at 101–102. In other words, it seems “to have treated the unreasonableness query as a check of its self belief in the result it might reach beneath de novo evaluation.” Id., at 102. More specially, the panel concluded de novo that “there's an inexpensive chance Kayer’s sentence might were less than death,” and then certainly appended the statement that “the state [postconviction review] court was unreasonable in concluding in any other case.” 923 F. 3d, at 723. Indeed, the panel repeatedly reached conclusions—such as that the “evidence presented to the [postconviction] courtroom set up the statutory mitigating circumstance of mental impairment,” identity., at 719, and that there was a “causal connection between Kayer’s intellectual impairment and the crime,” ibid.—without ever framing the relevant question as whether a fairminded jurist ought to reach a distinct conclusion.

    Applying the proper standard of evaluate, we vacate the Court of Appeals’ judgment. Judge Kiger observed that Kayer had failed to show deficient overall performance and, assuming poor performance, that he failed to show prejudice.[1] Federal courts might not disturb the judgments of kingdom courts until “every ground helping the kingdom court docket choice is tested and located to be unreasonable.” Wetzel v. Lambert, 565 U.S. 520, 525 (2012) (consistent with curiam). Thus, if a fairminded jurist ought to trust both Judge Kiger’s deficiency or prejudice protecting, the reasonableness of the alternative is “beside the factor.” Id., at 524; see Parker v. Matthews, 567 U.S. 37, 42 (2012) (consistent with curiam) (“[I]t is irrelevant [whether] the court docket also invoked a ground of questionable validity”); Richter, 562 U. S., at 102.

    We recognition at the country court’s prejudice determination. Insofar as the kingdom court provided its end on the bias query with out articulating its reasoning assisting that conclusion, we “have to determine what arguments or theories . . . may want to have supported the country court docket’s” dedication that Kayer failed to reveal prejudice. Id., at 102. Then we have to examine whether “ ‘fairminded jurists should disagree’ on the correctness of the country court’s selection” if based on one of those arguments or theories. Id., at one hundred and one (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see Pinholster, 563 U. S., at 188.

    Perhaps the most in all likelihood purpose for Judge Kiger’s no-prejudice dedication is actually that the brand new mitigation evidence offered inside the postconviction intending did no longer create a great chance of a specific sentencing final results. The Ninth Circuit usually considered that possibility, but in so doing impermissibly “substituted its own judgment for that of the nation court docket” in place of applying deferential evaluation. Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (in line with curiam).[2] It characterised Kayer’s earlier-offense aggravator (first-degree burglary) as “tremendously susceptible” in assessment with different offenses that certified under the Arizona capital sentencing regulation. 923 F. 3d, at 718. And on the other facet of the balance, it attributed tremendous weight to proof that it considered as showing that Kayer’s “ability to comprehend the wrongfulness of his conduct or to comply his conduct to the requirements of regulation changed into drastically impaired.” Ariz. Rev. Stat. Ann. §thirteen–703(G)(1).

    Perhaps some jurists would percentage those views, but that is not the applicable popular. The question is whether or not a fairminded jurist should take a unique view. See Visciotti, 537 U. S., at 24–27; see additionally Pinholster, 563 U. S., at 200–202. And the solution is sure. For one issue, a fairminded jurist may in another way examine the impact of Kayer’s prior-offense aggravator (not to mention the pecuniary benefit aggravator). Arizona first-diploma burglary required as an detail that he or an associate changed into “armed with explosives, a lethal weapon or a risky instrument.” Ariz. Rev. Stat. Ann. §13–1508(A) (1978). And Judge Kiger decided that Kayer “turned into armed with a .forty one caliber handgun” in the course of his previous offense. Excerpts of Record in No. 09–99027 (CA9), p. 935. A fairminded jurist should see Kayer’s past conviction as having substantial weight inside the context of this murder by means of taking pictures.

    Fairminded jurists additionally could take a one of a kind view of Kayer’s mitigating proof. Kayer provided proof that he suffered from bipolar ailment and untreated consuming and gambling addictions on the time of the crime, however reasonable jurists could debate the extent to which those elements appreciably impaired his capability to comprehend the wrongfulness of his conduct or to comply his conduct to the regulation at the time of the homicide. For example, the record well-knownshows that Kayer had extensive possibilities to don't forget his movements—making plans the homicide in advance, using his victim to a remote region, and ultimately returning to the murder scene and capturing the sufferer in the head a second time. Moreover, Kayer’s planning of the murder, efforts to hide the frame, interactions with Kester earlier than and after the homicide, and attempts to take advantage of his crimes using an alias show a degree of manipulate and intentionality. On this record, a fairminded jurist moderately should conclude that Kayer’s proof of intellectual impairment, inside the phrases of Judge Owens, turned into “hardly overwhelming.” 923 F. 3d, at 727; see also 944 F. 3d, at 1168–1171 (Bea, J., dissenting from denial of rehearing en banc).

    Kayer counters that his claim is strangely strong due to the fact the Arizona Supreme Court would have “independently reweigh[ed] the proof” on direct attraction. Strickland, 466 U. S., at 695. In his view, the similarity among his postconviction case and judgments that the State Supreme Court has issued in different instances on direct evaluation helps his Strickland claim. Arizona responds that the State Supreme Court would now not have reweighed the evidence inside the way pondered by way of Strickland. And it asks this Court to maintain that beyond state judgments on direct evaluation are categorically inappropriate to AEDPA assessment.

    We need now not address these broad questions with the intention to clear up this example. Even if Arizona’s sentencing practices worried reweighing proof on direct appeal, capital sentencing calls for “an individualized dedication on the idea of the character of the person and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879 (1983). For gift purposes, it suffices to say that, because the statistics in every capital sentencing case are precise, the weighing of disturbing and mitigating evidence in a previous published choice is unlikely to offer clear guidance about how a country court could weigh the proof in a later case.

    Kayer, like the panel beneath, focuses his argument on the Arizona Supreme Court’s selection in State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979), but that selection falls a long way short of placing the nation court’s prejudice willpower in this example beyond the area of fairminded war of words. In Brookover, there was simplest one annoying situation (a prior conviction for a critical offense), whereas Kayer’s sentencing involved statutory aggravators.[three] And as for the mitigating proof in Brookover, whilst it's far a ways from clean precisely what mitigating evidence inspired the courtroom’s individualized sentencing dedication, the opinion refers to proof that appears extensively different from that during this situation. The Brookover opinion refers to evidence of a “ ‘neurological lesion’ ” of a kind that brought on “ ‘a relinquishment of one’s self autonomy.’ ” Id., at 41, 601 P. 2nd, at 1325. By comparison, an affordable jurist ought to view Kayer’s mitigation evidence in a distinct mild for the reasons explained above. In these instances, the Brookover decision does not come near showing the kind of “extreme malfunctio[n] within the nation criminal justice syste[m]” that would permit federal courtroom intervention. Richter, 562 U. S., at 102 (inner quotation marks not noted).

    *  *  *

    Under AEDPA, nation courts play the leading function in assessing demanding situations to country sentences based totally on federal regulation. A country court docket heard Kayer’s evidence and concluded that he failed to expose prejudice. The courtroom beneath passed its authority in rejecting that dedication, which became not so manifestly wrong as to be “beyond any opportunity for fairminded war of words.” Id., at 103. Under §2254(d), this is “ ‘the handiest question that matters.’ ” Id., at 102.

    We grant the petition for a writ of certiorari, vacate the judgment of the US Court of Appeals for the Ninth Circuit, and remand the case to that court for in addition complaints regular with this opinion.

    It is so ordered.

    Justice Breyer, Justice Sotomayor, and Justice Kagan dissent.

    1  Section 2254 calls for overview of the “closing nation-courtroom adjudication at the deserves.” Greene v. Fisher, 565 U.S. 34, forty (2011). The Ninth Circuit handled the Superior Court’s selection, rather than the Arizona Supreme Court’s denial of evaluation, as the last kingdom-court docket adjudication at the merits. Unreasoned inclinations via appellate courts every so often qualify as adjudications at the merits. In those cases, we observe a rebuttable presumption that the appellate courtroom’s decision rested on the same grounds as the reasoned decision of a lower courtroom. See Wilson v. Sellers, 584 U. S. ___ (2018). We may also count on with out deciding that the Arizona Supreme Court’s denial of discretionary evaluation became no longer a deserves adjudication because we finish that the Superior Court did not unreasonably follow federal regulation. In these situations, there would be no want to do not forget whether an unreasoned choice of a better court docket may additionally have rested on exceptional grounds than the choice of a decrease court docket.
    2  In its efforts to differentiate Woodford v. Visciotti, 537 U.S. 19, the panel found it “critically important” that Visciotti worried postconviction assessment via a State Supreme Court. The panel emphasised that right here, by way of evaluation, it did now not “recognise how the Arizona Supreme Court would have assessed [the new] proof on collateral assessment due to the fact the Court denied without rationalization Kayer’s petition for evaluate.” Kayer v. Ryan, 923 F.3d 692, 724 (2019). But the lower courtroom and the parties have now not recognized anything in AEDPA or this Court’s precedents permitting decreased deference to deserves choices of lower state courts. See 28 U. S. C. §2254.
    3  The Ninth Circuit brushed past this distinction, reasoning that the Arizona Supreme Court should have found a pecuniary advantage aggravating issue based totally at the statistics of Brookover. But that does not exchange the reality that the Brookover courtroom did now not weigh any 2d irritating thing in reaching its selection. See 124 Ariz., at 41–42, 601 P. second, at 1325–1326.
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