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4th Circuit: State’s argument does not trigger Simmons instruction

A serial killer on North Carolina’s death row had no constitutional right under Simmons v. South Carolina to inform the sentencing jury that because he was already ineligible for parole, he did not pose a continuing danger to society, the 4th U.S. Circuit Court of Appeals has ruled.

Lesley Warren had already been convicted of murdering two women when, in 1996, a Guilford County jury sentenced him to death for killing a third woman, Katherine Johnson. Prosecutors sought the death penalty, pursuant to state law regarding aggravating factors, based on his prior convictions for capital felonies.

Laura Brewer, a spokeswoman for the North Carolina Attorney General’s Office, declined to discuss the case. But according to court records, the fact that Warren killed three women was a focal point for the government. The state had offered detailed evidence of the prior murders, it said, so the jury could determine Warren’s character and decide whether he “deserves to die.”

In seeking a life sentence for their client, Warren’s lawyers claimed he was less culpable because he was abused as a child and suffered serious mental and emotional disturbances as a child and teen. Warren requested that the jury be instructed that since he had already been sentenced to death for one of the previous murders, he could not be paroled if sentenced to life for killing Johnson. The court declined to give such an instruction, and the jury recommended death.

A life’s work

On appeal, Warren claimed that the trial court violated Simmons by refusing to instruct the jury on his parole ineligibility, a claim the state Supreme Court rejected on its merits. According to the high court, Simmons applies only where the government seeks the death penalty on the ground that the defendant will pose a future danger to society. In that case, concealing from the jury the fact that a defendant will be imprisoned for life without the possibility of parole would violate due process.

But here, the Supreme Court ruled and the 4th Circuit agreed, the government pleaded for the death penalty based not on the threat of future danger, but on its contention that Warren was a “serial killer deserving of the death penalty” for murdering three women.

Warren’s appellate lawyer, Kristin Parks of Chapel Hill, disagrees. She points to language such as “How many more chances do we have to give him?” in contending that the state argued future dangerousness throughout its closing argument, again, a violation of the constitutional rule set out in Simmons.

“It is not error for the prosecution to make arguments about future dangerousness, it is just error for the court not to inform the jury if the defendant will never be released on parole,” she said.

In Simmons, the prosecutor argued to the jury that its verdict should “be a response of society to someone who is a threat,” and that the verdict would be “an act of self-defense.” The Supreme Court held that such language “strongly” implied that the defendant would eventually be released from prison if the jury did not recommend a death sentence. As such, once the defendant’s future dangerousness was at issue, the court found that due process entitled him to respond by informing the capital sentencing jury that he was parole ineligible and would never in fact be released.

All about the past

Agreeing with the state Supreme Court’s finding that this case differs from Simmons, Circuit Judge Pamela Harris wrote that Simmons is not implicated because the prosecutor’s argument, read in full, “reasonably can be understood as essentially backward-looking.”

“In support of the death penalty, that is, the prosecutor relied not on the risk that Warren might in the future be released from prison and endanger the community, but rather on what Warren already had done in the past—namely, his actions and state of mind in committing the three murders of which he was convicted,” Harris wrote.

What matters, Harris continued, is whether the prosecutor urged the jury to look forward to the possibility that Warren may one day be released, thus becoming a danger to society, if not sentenced to death.

Unanimously, the 4th Circuit found that when taken in context, “a few words and phrases in an extensive closing argument” cited by Warren may “sensibly” be understood to be commenting on Warren’s previous crimes and character rather than his prospective release from prison.

Parks, Warren’s attorney, gave Lawyers Weekly several examples of North Carolina murder cases, arguably more heinous than Warren’s, where the murderers received life rather than death. According to Parks, these examples are consistent with research cited in Simmons and demonstrates that juries are willing to choose life over death, “even for some of the most gruesome crimes,” when they know that a defendant will never be released.

“If Mr. Warren’s jury had known he would never be released, we believe he would have been sentenced to life as well,” she said, adding that she has filed a petition for rehearing en banc.

“If we are not successful in the 4th Circuit,” Parks said, “the next step is the U.S. Supreme Court.”

The 12-page decision is Warren v. Thomas (Lawyers Weekly No. 001-124-18). An opinion digest is available online at

Follow Heath Hamacher on Twitter @NCLWHamacher

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