The Colorado Supreme Court struck down parts of the Colorado death penalty statute today in People v. Montour. The case involves a defendant who was serving a life sentence without parole when he killed a prison guard. At least based on a quick read, I find the opinion quite puzzling.

  First, some background. Under Colorado law, a defendant charged with capital murder faces a choice as to how to proceed. A charged defendant can exercise his full Sixth Amendment right to a jury trial, both at the merits stage and at the separate sentencing stage. Alternatively, the defendant can waive his Sixth Amendment rights, plead guilty to first-degree murder and face a bench trial for the sentencing hearing. The statute forecloses one option that may be appealing to defendants if available: A defendant can't plead guilty at the guilt phase and then get a full jury trial for the sentencing phase.

  In today's decision, the Court struck down the provision of the statute that forced defendants to make this choice. The Court's analysis of the alleged constitutional defect is actually pretty brief; it goes from pages 26-34. First, on page 28, the Court argues that the statutory scheme is inconsistent with the intrinsic nature of guilty pleas. According to the court, there is a natural limit on what a plea agreement can waive: a "guilty plea only waives those rights that are incompatible with a guilty plea." The court writes:

  A defendant's guilty plea does not, however, waive all of his rights. Instead, as argued by Amicus Colorado Criminal Defense Bar, this guilty plea only waives those rights that are incompatible with a guilty plea. . . .
  The defendant's right to a jury trial on sentencing facts is not incompatible with pleading guilty. While it would be impossible for a defendant to testify in a case where he has entered a guilty plea, a defendant can plead guilty and still have jury trial on sentencing facts. Because the entry of a guilty plea does not necessarily require a waiver of the right to a jury trial on sentencing facts, it is improper for the statute to require that the defendant's guilty plea automatically waive this right.

  The Court did not add any citations to any legal authorities here, so it's kind of hard to know where they are getting this. But isn't the nature of a guilty plea up to the legislature, at least barring a constitutional defect? As much as it's interesting to theorize about the nature of guilty pleas, presumably that's a question for legislatures rather than the courts.

  Apparently aware that its reasoning is rather thin here, the Court then tries to hang its hat on an actual provision of the Constutition — in this case, the Sixth Amendment. The Court notes that a defendant has a 6th Amendment right to have jury fact-finding at the sentencing phase of death penalty cases. Given the tactical benefits to a defendant of waiving a jury trial at the merits stage, the Court reasons, requiring a defendant to waive his right to a jury trial at the sentencing stage as well might create too high a risk that the defendant will choose to waive his rights:

By linking the waiver of a jury trial on sentencing facts to the guilty plea, this statute unnecessarily increases the likelihood that a defendant will waive his Sixth Amendment right to a jury trial on facts essential to the death penalty eligibility determination in order to plead guilty on the merits, thereby compromising one of his Sixth Amendment rights.

  As a consequence, the defendant's waiver was not knowing, voluntarily, and intelligent "as a matter of law." The waiver was "inextricably linked to his guilty plea," and was therefore invalid.

  I wonder, though, since when does the Sixth Amendment regulate the likelihood that a defendant will choose to waive his rights? The Sixth Amendment provides the right, but I'm not aware of any ground for holding that it regulates what kind of plea deals the state can legally offer to waive that right. I don't know if I like the Colorado legislature's approach as a matter of policy. And perhaps there is a body of law on this that the court just doesn't cite. But I'm not seeing it in the majority's opinion.

  Hat tip: Doug Berman.