State v. Rushing (2025): Clarifying Fundamental-Error Review for Visible Restraints in Capital Sentencing

Introduction

State of Arizona v. Jasper Phillip Rushing is the Arizona Supreme Court’s most recent capital-case decision, rendered on 5 August 2025. Although the Court ultimately affirmed Rushing’s death sentence, the opinion is noteworthy for two doctrinal clarifications: (1) the manner in which reviewing courts apply the fundamental-error standard to claims that a defendant appeared before the jury in visible restraints, and (2) the continuing viability of a competent capital defendant’s right to waive the presentation of mitigation.

The appeal arose after a jury—conducting a second penalty-phase proceeding ordered in 2017—again imposed the death penalty on Jasper Rushing for the gruesome 2010 murder of a fellow inmate. Rushing, representing himself, elected to wear jail clothing, accepted audible/visible restraints, and presented no mitigating evidence. On appeal he challenged (i) the restraints, (ii) the trial judge’s acceptance of his mitigation waiver, (iii) several jury-instruction rulings, and (iv) alleged prosecutorial misconduct.

Summary of the Judgment

Chief Justice Timmer, writing for a unanimous panel, held:

Visible restraints: The trial court erred by failing to make case-specific findings under Deck v. Missouri. Nevertheless, because Rushing did not object and could not show prejudice under Escalante’s fundamental-error framework, reversal was unwarranted.
Waiver of mitigation: Any error was invited; besides, precedent squarely permits a competent defendant to waive mitigation.
Jury instructions: The court did not abuse its discretion in refusing most of Rushing’s proposed instructions or in declining to define “moral culpability,” and the RAJI pattern instructions sufficed.
Prosecutorial error: No individual or cumulative error occurred; the State had no duty to present mitigation evidence and did not misstate the law in closing argument.

Analysis

Precedents Cited and Their Influence

Deck v. Missouri, 544 U.S. 622 (2005) – Requires case-specific justification for visible restraints; forms the backdrop against which the Arizona court found trial-level error.
State v. Gomez, 211 Ariz. 494 (2005) & State v. Dixon, 226 Ariz. 545 (2011) – Arizona applications of Deck; used to underscore the inadequacy of generalized security rationales.
Simmons v. South Carolina, 512 U.S. 154 (1994) & Lynch v. Arizona, 578 U.S. 613 (2016) – Earlier federal precedents that triggered the 2017 resentencing but were largely background here.
State v. Escalante, 245 Ariz. 135 (2018) – Sets forth Arizona’s tripartite definition of fundamental error and the prejudice requirement; crucial to the outcome.
State v. Montoya, 258 Ariz. 128 (2024); State v. Riley, 248 Ariz. 154 (2020) – Affirm the right of defendants to waive mitigation; relied on to reject Rushing’s challenge.
Lockett v. Ohio, 438 U.S. 586 (1978) & Eddings v. Oklahoma, 455 U.S. 104 (1982) – Emphasize the sentencer’s ability to consider mitigation; discussed in evaluating the prosecutorial-error claim.

Legal Reasoning

1. Standard of Review & The Invited-Error Doctrine

Because Rushing affirmatively accepted restraints and mitigation waiver, most claims were reviewed only for fundamental error or barred by invited error. The Court reiterated that a defendant must demonstrate error, fundamental nature, and prejudice—separately—under Escalante.

2. Restraints: Error but No Reversible Error

The justices found the trial judge’s reliance on Rushing’s criminal history and generic security concerns insufficient under Deck. Yet, they rejected automatic reversal:

Visible shackling is not per se “so egregious” as to satisfy Escalante prong three.
Under prong one (error striking at the case’s foundation), a separate showing of prejudice is still required. Rushing could not show that, given his jail attire, silence, and lack of mitigation, “a reasonable jury could have plausibly” chosen life.

3. Waiver of Mitigation

Citing a solid line of Arizona cases, the Court refused to impose a duty on judges or prosecutors to “force-feed” mitigation where a competent defendant has knowingly waived it. Accepting such a waiver neither violates the Eighth Amendment nor due-process guarantees.

4. Jury-Instruction Challenges

Key holdings include:

Trial courts may rely on RAJI instructions; refusal to adopt non-pattern edits is not error if the law is already correctly conveyed.
The court must instruct on legal principles, not re-emphasize a defendant’s preferred wording.
While better practice might have been to define “moral culpability,” the omission did not constitute fundamental error.

5. Prosecutorial-Error Allegations

The prosecutor neither suppressed mitigation nor misstated governing capital-sentencing law; hence, no individual error existed and cumulative-error doctrine did not apply.

Impact of the Judgment

Visible restraints: Trial judges must articulate case-specific reasons on the record, but defendants who sat silently at trial must still prove actual prejudice on appeal. This heightens the incentive for contemporaneous objections.
Mitigation waiver: The decision cements Arizona’s stance that competent capital defendants may control their own mitigation strategy—even to their detriment—without triggering judicial intervention.
Instructional practice: Judges are encouraged (though not constitutionally required) to clarify ambiguous terms upon jury request; nevertheless, failure to do so will rarely amount to fundamental error.
Prosecutorial duties: Rushing reiterates that the State need not present mitigation but must avoid creating a false record. Defense teams cannot rely on the State to cure self-inflicted evidentiary gaps.

Complex Concepts Simplified

Fundamental vs. Harmless Error: Harmless error applies when a proper objection was made; the State must show beyond a reasonable doubt the error didn’t affect the verdict. Fundamental error (no objection) requires the defendant to prove (i) error, (ii) that it was fundamental, and (iii) resulting prejudice.
Visible Restraints/Shackling: Physical restraints jurors can see (handcuffs, belly chains, visible leg irons) are presumptively prejudicial; courts must justify them with individualized findings (e.g., escape risk).
Aggravating vs. Mitigating Factors: Aggravators make a crime more blameworthy (e.g., prior violent felonies). Mitigators may warrant leniency (e.g., mental illness, minor role). In Arizona, aggravators must be proven by the State, mitigators by the defendant (preponderance standard).
Invited Error: A litigant cannot ask a court to proceed in a certain way and later complain that the court accepted the request.
“Moral culpability”: In plain English, how much blame a person deserves, judged through fairness and mercy rather than strict legality.

Conclusion

State v. Rushing clarifies that while the constitutional prohibition on unjustified shackling remains robust, reversal on appeal is not automatic where a defendant failed to object and cannot demonstrate prejudice. The case also re-affirms Arizona precedent upholding a competent defendant’s autonomy—even the autonomy to present no mitigation at all—and underscores the adequacy of pattern jury instructions absent demonstrable confusion. Going forward, defense counsel should object contemporaneously to any visible restraints and build a prejudice record; trial judges should make detailed on-the-record findings and consider defining potentially abstruse terms when asked. Prosecutors, meanwhile, must continue to avoid misstating the law but remain under no obligation to supply mitigation for a silent defendant. Collectively, Rushing strengthens procedural clarity in Arizona capital practice while preserving the delicate balance between courtroom security, defendant autonomy, and reliable sentencing.