Andrews v. Shulsen

DURHAM, Justice

(dissenting):

I dissent from the majority’s decision not to reach the merits of this petition. I am persuaded that sufficient “good cause” for review is established by (1) the fact that the law regarding Andrews’ right to a lesser included offense instruction at his trial has been in an unsettled and evolutionary state during at least part of the period between his conviction and this petition, see Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); State v. Baker, 671 P.2d 152 (Utah 1983); State v. Norton, 675 P.2d 577 (Utah 1983); State v. Hansen, 734 P.2d 421 (Utah 1986), and (2) the strong possibility that Andrews was entitled to a lesser included offense instruction and may have been mistakenly sentenced to death as a result of its absence. That the failure to request the instruction at trial and the failure to raise the issue until now constitute procedural defaults under the ordinary application of rule 65B(i)(2) and (4) does not change my view. The mere possibility that the death penalty may have been imposed by mistake, and may be carried out because of that mistake, is sufficient in my view to constitute “good cause” for review under the rule.

I acknowledge the devastating impact on all concerned of delays required for meticulous and time-consuming review of the fairness with which the State imposes the death penalty. Balanced against that terrible cost, however, must be the even more terrible possibility that a defendant’s life may be taken without fundamental fairness and due process. To the extent that we insist on vindicating community values by community decisions to take life, we must be willing to expend whatever resources are required to guarantee that the process is fair and within constitutional bounds.

There is no suggestion in this case of deliberate withholding of claims, and I view counsel’s procedural default as excusable neglect under the circumstances. Indeed, in a death penalty case, I am inclined to think such neglect, to which the defendant himself cannot have contributed, must be excused. I would review the petition.