Capital Punishment  Spring 2011 Part I Jan. 11: pp. 19-28 (A Short History of the DP) and pp.36-45 (McGautha v.

CA) A Short History of the DP  • Antecedents of the American DP in Antiquity and in England – o Antiquity – throughout history, societies have killed criminals as punishment for their transgressions. Death has been ultimate weapon v. disorder. o England – English common law, American’s legal ancestor, recognized 8 capital crimes (treason, murder, larceny, robbery, burglary, rape and arson). By 1820, more than 200 capital crimes. 1965, England abolished the DP. • Death Penalty in America – o DP has been part of American criminal justice system since founding of British colonies. Recurring abolition movements throughout American history. • From Colonial Times to the Civil War – o The Colonies – English settlers carried DP to America, but restricted its scope in northern colonies. In 18th century, population grew, so expanded capital punishment laws were way to maintain public order amid increasing diversity. By Revolutionary War, crimes with DP = murder, treason, piracy, rape, robbery, burglary, and sodomy. o Penal Reform – Ideas of European Enlightenment of 18th century inspired calls for legal and penal reform. Thomas Jefferson introduced legislation in VA for more proportionate punishments. o Division of Murder Into Degrees – End of 18th century, new definition of crime of murder. Invention of degrees of murder gave jury authority to decide that ∆, though guilty of murder, had not acted with sufficient calculation to warrant execution. o Southern States – In south, DP linked to slavery. Tool for keeping slave population in submission. “Black Codes” of many southern states differentiated between capital crimes for black slaves and white people. o Antebellum Abolition Movement – In second quarter of 19th century, use of DP increased significantly. Public executions replaced with those behind prison walls and anti-gallows societies organized. Moral and religious arguments dominated public debate about DP. MI, WI, RI abolished DP and de facto abolition in Maine. By start of Civil War, burglary and robbery no longer capital crimes in ¾ of states. • From Civil War to WWI – o Discretionary Sentencing – By end of 19th century, discretionary sentencing in capital cases emerged as established feature of American criminal justice system. Under English and early American law, DP was mandatory upon conviction of capital crime. Juries would acquit a guilty but sympathetic ∆ to spare him DP. Problem of “jury nullification” led states to abolish mandatory DP.


o Renewed Abolition Movement – Arguments against DP focused on
utilitarian issues such as deterrence as well as issues of religion and morality. Argument that abolition would increase # lynchings. By WWI, 13 states had abolished DP with some exception for murder of police officer, murder by prisoner, rape and treason. o Southern Experience – Black Codes abolished with Emancipation Proclamation. Sentiments underlying Black Codes pervaded southern criminal justice systems. Lynchings continued. From WWI to 1972 – o Status quo through the 1950s - Movement to abolish DP interrupted by WWI. For next 40 years, little attention given to DP. After WWI, public fears of immigrants strengthened support for DP. By 1920, 5 states that had abolished DP before or during war reinstated it. No other states abolished DP during that period. o Revitalized abolition movement in late 1950s and 1960s – During late 1950s issue of DP re-entered public discourse. In 1957, polls showed 50% Americans didn’t favor DP for murder. Civil Rights movement focused on effects on blacks. In 1960s NAACP challenged “legal lynchings” in South, especially execution black men for rape of white women. From 1972 to Present – o In Furman, USSC held DP as then administered in US was unconstitutional. Legislation subsequently passed by 38 states and fed government restoring DP, and 34 states and fed govt have carried out at least one execution since 1972. Recently, 3 states (+ Illinois) have abandoned DP. From 1973-2008, 8,000 ∆s sentenced to death, 1,136 executed. 56% of executed white, 99% men. o In this period, executions and death sentences varied substantially over time. # executions rose steadily after Furman, reaching high of 98 in 1999, declining to 37 in 2008. # death sentences rose dramatically in 3 years after Furman. Never less than 250 sentences in any one year. Peak was 1996. o Executions not evenly distributed among DP states. Eleven former Confederate states accounted for over 70% of executions, with Texas and VA alone accounting for more than 46%.

McGautha v. CA (1971)  • Issue: o Whether ∆’s constitutional rights were infringed by permitting the jury to impose the DP without any governing standards? o Whether the jury’s imposition of the DP in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible? • Holding: o No constitutional infirmity in conviction of either petitioner. Accused’s rights not infringed by imposition of DP without governing standards. o In light of history, experience and by present limitations of human knowledge, impossible to say that committing to untrammeled discretion of jury power to pronounce life or death in capital cases is offensive to anything in the Constitution.


o Unitary trial on guilt and penalty by Ohio violated no constitutional right of •
Crampton, neither right to remain silent nor right to present evidence on issue of penalty. Facts:

o 2 ∆s convicted of murder in CA and Ohio. In each case decision whether ∆
should live or die left to absolute discretion of jury. In McGautha’s case, jury in accordance with CA law determined punishment in separate proceeding following trial on issue of guilt. In Crampton’s, in accordance with Ohio law, jury determined guilt and punishment after single trial and in single verdict. o ∆s contend that to leave the jury completely at large to impose or withhold DP as it sees fit is fundamentally lawless and therefore violates basic command of 14th Amendment that no State shall deprive person of his life without due process of law. Rules: o May be that bifurcated trials and criteria for jury sentencing discretion are superior means of dealing with capital cases if DP is to be retained, but Constitution does not guarantee trial procedures that are best of all worlds or accord with most enlightened ideas. Constitution requires no more than that trials be fairly conducted and that guaranteed rights of ∆s be scrupulously respected. Reasoning: o With claim that absence of standards to guide jury’s discretion on punishment issue is constitutionally intolerable –  Court looks to history of capital punishment for homicides under common law of England and statutory developments in US. • History shows continual efforts, uniformly unsuccessful, to identify crimes for which ∆ should die. Juries granted discretion to combat this. • No states have adopted statutory criteria for imposition of DP. o ∆s argue that DP is imposed on far fewer than ½ ∆s found guilty of capital crimes. Argue legislatures have failed to provide rational basis for distinguishing one group from another. Contend no mechanism to select extraordinary cases calling for DP from others…  Court says to identify before the fact characteristics of criminal homicides and perpetrators calling for DP and to express those characteristics in clear language beyond present human ability.  History and Model Penal Code caution against Court’s undertaking to establish standards or to constitutionally require certain standards..  For Court to attempt to catalog appropriate factors in this area could inhibit rather than expand scope of jury’s consideration, for no list of circumstances could ever really be complete. o Ability of jurors to distinguish between ∆s for whom DP is appropriate punishment and those for whom imprisonment is sufficient.


Jan. 13: Excerpts, Ogletree on “Black Man’s Burden: Race and Capital Punishment in America” and Klarman, “The Racial Origins of Modern Criminal Procedure.” Jan. 14: pp. 46-76, Furman v. GA. Furman v. Georgia (1972)  • Issue: o Does the imposition and carrying out of the DP in these cases constitute cruel and unusual punishment in violation of the 8 th and 14th Amendments? • Holding: o The imposition and carrying out of the DP in these cases constitute cruel and unusual punishment in violation of the 8th and 14th Amendments. • Facts: o Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death. o Other cases decided with this one are Jackson v. GA, where ∆ convicted of rape in GA and sentenced to death, and Branch v. TX, where petitioner convicted of rape in TX and sentenced to death. • Douglas (concurring): o Would approve of rewriting the DP statutes. DP is not per se violation of 8 th Amendment, but as applied it’s the arbitrariness that bothers him. o DP inflicted on one ∆ is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or if it is imposed under a procedure that gives room for the play of such prejudices. o 8th Amendment requires legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. o These discretionary statutes are unconstitutional in their operation. Pregnant with discrimination and discrimination is an ingredient not compatible with idea of equal protection of laws that is implicit in ban on “cruel and unusual” punishments. • Brennan (concurring): o 1) Death is unique in its extremity; only punishment that may involve the conscious infliction of physical pain. Unusually severe in its finality and enormity. An executed person has lost the right to have rights. Uniquely degrading to human dignity.  Would not hesitate to hold, on that ground alone, that death is “cruel and unusual” punishment, were it not that death is punishment of longstanding usage and acceptance in this country. o 2) State may not arbitrarily inflict an unusually severe punishment.  Death is not ordinary punishment for any crime. When punishment of death inflicted in trivial # of cases in which it is legally available, conclusion is that it is inflicted arbitrarily.


 Highly implausible only the worst criminals or criminals who commit
worst crimes are selected for this punishment.

 Procedures are not constructed to guard against the totally
capricious selection of criminals for punishment of death.

o 3) Examination of the history and present operation of the American
practice of punishing criminals by death reveals that this punishment has been almost totally rejected by contemporary society. o 4) Unusually severe and degrading punishment may not be excessive in view of the purposes for which it is inflicted.  Punishment can’t be shown to be serving any penal purpose that couldn’t be served with less severe punishment.  Many and most capital crimes cannot be deterred by threat of punishment. Applies only to those who think rationally about crime. o Punishment of death is inconsistent with all 4 principles:  1) death is unusually severe and degrading punishment;  2) strong probability that it is inflicted arbitrarily;  3) its rejection by contemporary society is virtually total;  4) there is no reason to believe it serves any penal purpose more effectively than the less severe punishment of imprisonment. Stewart (concurring): o As applied argument – the only thing satisfactory would be a mandatory statute, since all others are arbitrary. o Death is different from all other criminal punishment; unique in irrevocability. Unique in rejection of rehabilitation of convict; unique in absolute renunciation of all embodied in humanity. o Death sentences now before us are the product of a legal system that brings them, I believe, within the very core of the Eighth Amendment's guarantee against cruel and unusual punishments, a guarantee applicable against the States through the Fourteenth Amendment. In the first place, it is clear that these sentences are "cruel" in the sense that they excessively go beyond, not in degree but in kind, the punishments that the state legislatures have determined to be necessary. In the second place, it is equally clear that these sentences are "unusual" in the sense that the penalty of death is infrequently imposed for murder, and that its imposition for rape is extraordinarily rare. o These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. o I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. White (concurring): o In joining the Court's judgments, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment.


o The death penalty could so seldom be imposed that it would cease to be a
credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system. o A major goal of the criminal law -- to deter others by punishing the convicted criminal -- would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others. o Whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. o I cannot avoid the conclusion that as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice. Marshall (concurring): o Perhaps the most important principle in analyzing "cruel and unusual" punishment questions is one that is reiterated again and again in the prior opinions of the Court: i. e., the cruel and unusual language "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Thus, a penalty that was permissible at one time in our Nation's history is not necessarily permissible today.  The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us. o It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or unnecessary, or because it is abhorrent to currently existing moral values. o Marshall traces the history of the DP, concluding that since it came to America its use has been tempered greatly. o There are six purposes conceivably served by capital punishment: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions, eugenics, and economy.  Can’t be justified on retributive or deterrent effects… o The death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive. o In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history. Burger (with Blackmun, Powell, Rehnquist dissenting): o If we were possessed of legislative power, I would either join with MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty,


and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment. o Constitution prohibits all punishments of extreme and barbarous cruelty, regardless of how frequently or infrequently imposed. o In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly "cruel" in the constitutional sense. o 8th Amendment cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Blackmun (dissenting): o Believes the Court has overstepped… o I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. o Were I a legislator, I would vote against the death penalty. o I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. Powell (with Chief, Blackmun and Rehnquist dissenting): o Debates about how truly arbitrary the DP is. Between 10-20% of those charged with death-qualifying murder face DP. o Only if you commit a crime and don’t know your punishment is it unusual. o Believes court’s decision shatters the principles of stare decisis, federalism, judicial restraint and separation of powers.  Capital punishment laws of 39 states nullified… o Indicators most likely to reflect public’s view – legislative bodies, state referenda, and juries which have actual responsibility – do not support contention that evolving standards of decency require total abolition of capital punishment. o Argues for judicial restraint – impatience with the slowness and unresponsiveness of legislatures is no justification for judicial intrusion upon their historic powers… o “Of course, the specific prohibitions within the BoR are limitations on the ex. of power; they are not an affirmative grant of power to Govt. I, therefore, do not read several references to cap punishment as foreclosing


this Court from considering whether DP in particular case offends 8 th and 14th Amendments. Nor are ‘cruel and unusual punishments’ and ‘due process of law’ static concepts whose meaning and scope were sealed at the time of their writing. They were designed to be dynamic and to gain meaning through application to specific circumstances, many of which were not contemplated by their authors.” Rehnquist (with Chief, Blackmun and Powell dissenting): o Court’s judgment strikes down penalty Nation’s legislators have thought necessary since country was founded. o Invalidating laws enacted by Congress and 40 of 50 state legislatures. o Argues that notion of checks and balances should prevail – judicial selfrestraint necessary. Court’s holding in these cases in complete disregard of that condition… Note (p.75) Impact of Furman – o Furman decision had enormous effect, invalidating approximately 40 DP statutes and overturning approximately 600 death sentences. o Rivaled only by Roe v. Wade in publicity. Like Roe, didn’t resolve basic issue only galvanized opposition, with political and judicial consequences to this day. o After this decision, substantial majority of states immediately passed new DP statutes, and juries began imposing death sentences again.

Jan. 25: CA and GA capital punishment statutes. pp. 896-904 and pp.913-15. California Penal Code (pp.896-904) • Statute includes definition of first degree murder: o Murder which is perpetrated in the commission of burglary. o § 190.1(a): Question of guilt determined first. If found guilty of first-degree murder, determine at the SAME time all special circumstances charged. o (b): If found guilty of first degree AND one of special circumstances, THEN move on to question of sentencing… • Trial is bifurcated; determine BOTH guilt of degree murder AND special circumstances – prosecution must prove both. • § 190.2 lists special circumstance factors. o Once a special circumstance has been found (and proven), go to § 190.3 to weigh aggravating and mitigating circumstances. o P. 901 – list of factors. o If aggravating factors outweigh mitigating, impose DP (p.901 (k). If mitigating outweigh aggravating, impose life. • Judge has ability to order new jury in the penalty phase if jury is hung on this. Can summon new jury and begin again OR impose life without parole. • CA statute seems exceedingly broad because so many circumstances listed seem to capture all murders. o Similar in some ways to GA, but listing of special circumstances is different. In GA, just aggravating circumstances listed. Once past that, nothing statutory regarding mitigating exists. GA is also NOT a weighing state!


Georgia Penal Code (pp.913-915) • Developed by legislature following Furman. o Murder statute didn’t change. § 16-5-1 is Murder; felony murder. Language for this dates to mid-1800s. • GA doesn’t have definition of capital murder, just murder that can receive the DP. GA does list aggravating circumstances in § 17-10-30. o Includes for offenses of aircraft hijacking or treason.  These are cases where no one dies, haven’t been tested under GA laws or Coker… o Lists aggravating circumstances; including “depravity of mind.”  Gabriel wonders if this is “catch-all” agg. circumstance. Could potentially be void for vagueness. o There is pattern of courts giving expansive reading to criminal statutes.  Ex. “aggravated battery = causing another person to lose limb/use of part of their body.” Courts have interpreted this to mean even temporary loss of use, such as broken jaw that heals. • GA doesn’t specifically list mitigating factors. o Defense in penalty side humanizes defendant. Talking about life as child, military service, etc. • In response to Furman, GA has established bifurcated trial. Set of statutory aggravating circumstances given to jury during sentencing phase. Jury must decide whether prosecution has proven any of those, decide which circumstances exist. o Standard for aggravating circumstances is BEYOND A REASONABLE DOUBT. o If found, jury deliberates on DP. From group that’s thus eligible, selection process occurs. Difference between eligibility and selection  • If all murders put in one circle, some subset of those murders are death eligible (based on something about the murder that makes it elevated from other murders). o Something makes death-eligible murders more heightened. Only out of that pool are some selected, meaning that unless you have the automatic DP, only some of the eligible will be selected for DP. o Channeling = helping decide whether someone who gets the DP ought to get the DP… • Even smaller circle of those selected for DP are EXECUTED. • 100% of murders > eligible > selected > actually executed. Jan. 27: Gregg v. GA, pp.76-92 Gregg v. Georgia (1976)  • Issue:


o Whether the imposition of the sentence of death for the crime of murder
under the law of GA violates the 8th and 14th Amendments? o More broadly – Whether the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the 8 th and 14th Amendments? Holding: o Punishment of death does not invariably violate the Constitution. DP is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it. o It is possible to construct capital-sentencing systems capable of meeting Furman’s constitutional concerns. Facts: o In bifurcated trial, at penalty stage jury found 2 aggravating circumstances. o GA retains the DP in its post-Furman statute for 6 categories of crime: murder, kidnapping for ransom or where victim harmed, armed robbery, rape, treason and aircraft hijacking. ∆’s guilt/innocence determined in traditional manner, either by trial judge or jury, in first stage of bifurcated trial. o In sentencing procedure, judge or jury hears additional evidence in extenuation, mitigation, and aggravation of punishment.  Only such evidence in aggravation as has been made known to ∆ prior to his trial shall be admissible.  Judge/jury shall hear argument of ∆ and prosecutor regarding punishment to be imposed. o In assessment of appropriate sentence to be imposed, judge required to consider or include in instructions to jury “any mitigating or aggravating circumstance otherwise authorized by law and any of 10 statutory aggravating circumstances which may be supported by the evidence.  Judge/jury must find beyond reasonable doubt one of the 10 aggravating circumstances specified in statute.  Must specify which one found… o Provision for special expedited direct review by SC of GA.  Determine whether sentence of death imposed under influence prejudice or arbitrary factor; whether evidence support judge/jury’s finding of agg circ; whether sentence of death excessive/disproportionate to penalty in similar crimes… o If court affirms DP, required to include in decision reference to similar cases. o In transcript, trial judge must test for arbitrariness and disproportionality of sentence. Possibility of executive clemency remains… Rules: o 8th Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.  Assessment of contemporary values concerning infliction of challenged sanction relevant to application of 8th Amendment.


o Look to objective indicia that reflect public attitude toward a given
sanction.  1) Punishment must not involve unnecessary and wanton infliction of pain.  2) Punishment must not be grossly out of proportion to severity of crime. o Furman – DP cold not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.  Discretion must be suitably directed and limited so as to minimize risk of wholly arbitrary and capricious action. Reasoning: o History and precedent strongly support that DP for murder is not per se violation of 8th and 14th Amendments.  Long history of acceptance in US and England.  Existence of DP accepted by Framers.  5th Amendment contemplated continued existence of DP…  For nearly 2 centuries, Court has expressly recognized DP is not invalid per se.  Large proportion of American society continues to regard it as appropriate and necessary criminal sanction.  Legislatures of at least 35 states have enacted new Statutes that provide for DP for at least some crimes that result in death of another person.  Congress enacted fed statute.  Capital punishment itself has not been rejected by elected representatives of people… o Relative infrequency of jury verdicts imposing DP doesn’t indicate rejection of capital punishment per se.  Reflects human feeling that it should be reserved for most extreme cases. o DP is said to serve 2 functions: retribution and deterrence of capital crimes by prospective offenders.  Expression of society’s moral outrage at particularly offensive conduct. Expression of society’s belief that certain crimes so grievous affront to humanity that only adequate response is death.  For some, DP undoubtedly deterrent. Value of it as deterrent should rest with legislatures. o Infliction of DP for murder not without justification and thus not unconstitutionally severe.  Can’t say disproportionate to crime of murder. o Concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.


 Best met by system that provides for bifurcated proceeding at
which sentencing authority is apprised of information relevant to imposition of sentence and provided with standards to guide its use of that information. o Problems alleviated if jury given guidance regarding factors about crime and ∆ that State deems particularly relevant to sentencing decision.  Each distinct system must be examined on an individual basis… o In GA, discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.  Plus GA provides for automatic appeal of all death sentences to state SC.  SC of GA compares all death sentences with sentences imposed in similar ∆s. o GA sentencing procedures focus the jury’s attention on the particularized nature of the crime and the particular characteristics of the individual ∆.  Jury’s discretion is channeled... Jan. 28: Proffitt v. Florida, pp.92-93; Jurek v. Texas, pp.103-108 + Florida and TX Capital Punishment Statutes pp.904-912 and 916-919

Notes (p.92-93)  o Proffitt v. Florida (1976)   Court upheld Florida DP scheme, which like GA scheme, provided for separate evidentiary hearing on aggravating and mitigating circumstances after a ∆ was convicted of capital murder and provided for automatic review in state SC of any death sentence, but which differed in other respects…  Florida = weighing state. • At conclusion of hearing jury directed to consider whether sufficient mitigating circumstances exist which outweigh aggravating circumstances found to exist. Jury’s verdict determined by majority vote. Only advisory, actual sentence determined by trial judge. • Facts suggesting a sentence of death must be so clear and convincing that no reasonable person could differ.  Trial judge also directed to weigh. Shall set forth decision and findings in writing upon which decision based and that there are insufficient mitigating circumstances to outweigh aggravating. “Death-Qualified”  o To sit on a capital punishment jury, jurors must be willing to impose the DP. If you’re opposed, you can’t sit on a jury considering death. Judge removes prospective jurors with beliefs like this. o Question whether capital juries are truly representative…

Jurek v. Texas (1976)  • Issue:


o Whether the imposition of the sentence of death for the crime of murder
under the law of TX violates the 8th and 14th Amendments? o TX statute doesn’t explicitly speak of mitigating circumstances. Directs only that jury answer 3 questions. Constitutionality of TX procedure turns on whether the enumerated questions allow consideration of particularized mitigating factors? Holding: o TX’s capital-sentencing procedures, like those of GA and FL, do not violate the 8th and 14th Amendments.  By narrowing the definition of capital murder, TX has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered.  By authorizing ∆ to bring before jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual ∆ can be adduced, TX has ensured that sentencing jury will have adequate guidance to enable it to perform its sentencing function.  By providing prompt judicial review of the jury’s decision in court with statewide jurisdiction, TX has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. o Because this system serves to assure that sentences of death will not be “wantonly,” or “freakishly” imposed, it does not violate the Constitution. Facts: o ∆ raped and drowned a 10 year old girl. Sentenced under new TX DP statute. o In new TX DP procedure, jury required to answer 3 questions in proceeding that takes place subsequent to return of verdict finding person guilty of murder:  1) whether conduct of ∆ that caused death of deceased was committed deliberately and with reasonable expectation that death of deceased or another would result;  2) whether there is probability that ∆ would commit criminal acts of violence that would constitute a continuing threat to society; and  3) if raised by evidence, whether conduct of ∆ in killing deceased was unreasonable in response to provocation, if any, of deceased. o Jury here considered 1 and 2. Answered unanimously yes to both.  In essence, TX requires that jury find existence of statutory aggravating circumstance before DP may be imposed. o 2nd question interpreted by TX Courts to allow ∆ to bring to jury’s attention whatever mitigating circumstances he’s able to show. Rules: o Sentencing system that allowed jury to consider only aggravating circumstances would fall short of providing individualized sentencing determination required by 8th and 14th as seen in Woodson.


o Jury must be allowed to consider on basis of all relevant evidence why DP
should be imposed and why it should NOT be imposed.

o In order to meet requirements of 8th and 14th Amendments, a capital•
sentencing system must allow the sentencing authority to consider mitigating circumstances. Reasoning: o TX law essentially requires that 1/5 aggravating circ be found before ∆ can be found guilty of capital murder, and that in considering whether to impose death sentence jury may be asked to consider whatever evidence of mitigating circumstances the ∆ can bring before it. o Like FL and GA, TX capital-sentencing procedure guides and focuses jury’s objective consideration of particularized circumstances of individual offense and individual offender before it can impose sentence of death.

Florida Capital Punishment Statute (pp.904-912)  • Majority vote by jury. Jury’s decision advisory, actual sentence done by trial judge. Trial judge can trump jury’s decision. Texas Capital Punishment Statute (pp.916-919)  • A lot of litigation occurred after Jurek. TX changed its statute again… • Other Notes  o Furman concerns are best met by a system that provides for bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of the sentence and provided with standards to guide its use of the information.  *Limit jury discretion. o Doesn’t suggest that only above-described procedure sufficient to satify Furman.  System could have standards so vague it would fail to adequately channel sentencing decisions. Pattern of results with jury would show arbitrary and capricious sentencing like that found unconstitutional in Furman could occur… o Proportionality review, like that in GA, would substantially eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.  Would need facts of other cases for comparison.  Court that’s conducting proportionality review would look at murder cases with similar facts. o Discretion continues on prosecutorial level – decisions over which cases in which to seek DP… Feb. 1: Woodson v. North Carolina, plus notes after (Roberts v. Louisiana, Sumner v. Shuman). Pp. 92-103. Woodson v. North Carolina (1976)  • Issue:


o Whether the imposition of a death sentence for the crime of 1 st degree
murder under the law of NC violates the 8th and 14th Amendments? o Whether a death sentence returned pursuant to a law imposing a mandatory DP for a broad category of homicidal offenses constitutes cruel and unusual punishment within the meaning of the 8th and 14th Amendments? Holding: o Death sentences imposed upon petitioners under NC’s mandatory death sentence statute violated 8th and 14th Amendments and therefore must be set aside.  Failure to provide a constitutionally tolerable response to Furman’s rejection of unbridled jury discretion in imposition of capital sentences.  Failure to allow particularized consideration of relevant aspects of the character and record of each convicted ∆ before imposition upon him of sentence of death. Facts: o ∆ maintained his innocence throughout trial despite co-∆s pleading guilty. Found guilty on all charges, and as was required by statute, sentenced to death. o NC law provided that in cases of 1st degree murder, jury in its unbridled discretion could choose whether convicted ∆ should be sentenced to death or to life imprisonment. Statute survived Furman as “mandatory DP law…” Rules: o In Furman, Court found that death is a punishment different from all other sanctions in kind rather than degree. A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. o Justice requires consideration of more than the particular acts by which the crime was committed and that there must be taken into account the circumstances of the offense together with the character and propensities of the offender. o 8th Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death. Reasoning: o Court again looks to history of mandatory DP statutes in US.  Colonies at time of Revolution imposed death sentences on all persons convicted of any number of crimes.  Led to “jury nullification,” where juries refused to convict murderers rather than subject them to automatic DP.


 Rise in mid-19th century of giving juries discretion in capital cases.
Remedied harshness of mandatory statutes by permitting juries to respond to mitigating factors by withholding DP.  * Practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. Also look to legislative measures adopted by peoples’ representatives.  Looking to contemporary standards of decency. Aversion of jurors to mandatory DP is shared by society at large.  Death is viewed as inappropriate punishment for substantial portion of convicted 1st degree murderers. Persistent and unswerving rejection of mandatory DP statutes beginning in 1938 and continuing until Furman.  Post-Furman enactments reflect attempts by States to retain DP in form consistent with Constitution, rather than renewed societal acceptance of mandatory DP. * NC legislators sought to remove all sentencing discretion so that there could be no successful Furman based attack on NC statute…  Mandatory statutes enacted in response to Furman have papered over problem of unguided and unchecked jury discretion. Mandatory DP treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.





Roberts v. Louisiana (1976)  • Issue: o Constitutionality of Louisiana’s mandatory DP statute which more narrowly defined 1st degree murder than did the NC statute at issue in Woodson? • Holding: o This narrower definition of capital murder was not “of controlling constitutional significance” and it held the statute unconstitutional. • Facts: o LA Statute limited 1st degree murder to killings where the killer had a specific intent to kill or to inflict great bodily harm and the killing fell within one of five categories:  1) the killing occurred in conjunction with the commission of the felonies of aggravated kidnapping, aggravated rape, or armed robbery;  2) the victim was a fireman or a policeman in the performance of his duties;  3) the killer had previously been convicted of murder or was serving a life sentence;  4) the killer had a specific intent to kill or to inflict great bodily harm on more than one person; and  5) the killer had been offered or had received anything of value for committing the murder.


Sumner v. Shuman (1987)  • Issue: o Court in Woodson left open - Whether a mandatory DP limited to “an extremely narrow category of homicide” would be constitutional? • Holding: o SC held 6-3 that the requirement of an individualized penalty determination applied in all cases and that a mandatory DP, no matter how narrow, was unconstitutional. • Facts: o ∆, a prisoner serving a life sentence without possibility of parole as a result of a murder conviction, was convicted of murdering a fellow inmate. Sentenced to death under a LA statute making DP mandatory for a murder by a prisoner serving a life sentence without possibility of parole. Chapter 3: Limiting the Risk of Arbitrariness  • Furman holding, as understood by Court in Gregg and subsequent cases, was that, to satisfy the 8th Amendment, a DP scheme has to limit the risk of arbitrary application. • In Gregg, Proffitt, and Jurek, the Court upheld, on their face, the GA, FL, and TX schemes, but did not explicitly determine which aspects of each scheme satisfied the Furman principle. o In subsequent cases, SC and other courts have attempted to define the limits placed by Furman on DP schemes. • Intersection of race and capital punishment has posed challenge to DP system. Studies have established that minorities, particularly blacks, have been sentenced to death in numbers disproportionate to their conviction of capital crimes. When the race of the victim is taken into account, the disparities in sentencing have been substantial. Feb. 3: pp. 109-119 (description of last hours and execution of John Spenkelink); Zant v. Stephens and notes following, pp.122-138. Zant v. Stephens (1983)  • Issue: o Whether respondent’s death penalty must be vacated because one of three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the SC of GA, although the other 2 aggravating circumstances were specifically upheld?  Answer depends on the function of the jury’s finding of an aggravating circumstance under GA’s capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid… • Holding: o Absence of legislative or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating


circumstances does not render the GA capital sentencing statute invalid as applied in this case. o Whether or not jury has concluded that ∆’s prior record of criminal convictions merited label “substantial” or label “assaultive,” jury plainly entitled to consider that record, together with all the other evidence before it, in making its sentencing decision (despite it no longer being a “statutory” aggravating circumstance). Facts: o ∆ escaped from jail. ∆ committed several robberies while on the loose; killed someone by shooting him point blank during robbery. o GA’s capital sentencing procedure required jury to find at least one statutory aggravating circumstance and to identify it in writing, and that the state SC reviewed the record of every DP proceeding to determine whether the sentence was arbitrary or disproportionate. o Aggravating circumstance rendered invalid – “a substantial history of serious assaultive criminal convictions.” Rules: o GA has a bifurcated procedure, and its statute also mandates meaningful appellate review of every death sentence. Statute doesn’t, however, follow Model Penal Code’s recommendation that the jury’s discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. Aggravating circumstance in GA performs function of narrowing the category of persons convicted of murder who are eligible for DP. o Aggravating circumstance must genuinely narrow the class of persons eligible for the DP and must reasonably justify the imposition of a more severe sentence on the ∆ compared to others found guilty of murder. o Death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances (Gregg). o Constitution doesn’t require State to adopt specific standards for instructing jury in its consideration of aggravating and mitigating circumstances, and GA hasn’t adopted such a system. Reasoning: o Elements of GA statute adequately protected against wanton and freakish imposition of DP. GA scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. Court remains convinced that structure of statute is constitutional. Narrowing function has been properly achieved in this case by 2 valid aggravating circumstances upheld by the GA SC. o Effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label “aggravating circumstance.” Instruction did not place particular emphasis on the role of statutory aggravating circumstances in the jury’s ultimate decision.  Any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process…


o Because of mandatory appellate review, subsequent invalidation of one of
several statutory aggravating circumstances does not automatically require reversal of the DP. o Whether or not jury has concluded that ∆’s prior record of criminal convictions merited label “substantial” or label “assaultive,” jury plainly entitled to consider that record, together with all the other evidence before it, in making its sentencing decision.  The unconstitutional factor was not found in this case. Mere fact that such evidence was improperly designated “statutory” had an inconsequential impact” on the jury’s DP decision. Dissent (Marshall, with Brennan): o Actual decision whether a ∆ lives or dies may still be left to the unfettered discretion of the jury. Under today’s decision all the State has to do is require the jury to make some threshold finding. Once that finding is made, the jurors can be left completely at large. Sentencing decision is to be the product of their discretion and of nothing else. o Here, all that’s done is narrow class of murderers. Once that’s established, jury has no guiding standards at all. o “Threshold theory” –  Only function of statutory aggravating circumstances in GA is to screen out at the threshold ∆s to whom none of the 10 circumstances applies. Once one of 10 found, they drop out of the picture entirely and play no part in jury’s decision.  Relying on this “threshold theory,” the Court concludes that the submission of the unconstitutional statutory factor did not prejudice respondent. o Threshold question really doesn’t satisfy Furman. If arbitrariness is lesson of Furman, then GA system doesn’t really change anything… Notes (pp.135-138)  o The GA Scheme –  Although GA SC describes system as pyramid with 3 planes, court described 4th narrowing plane created by court’s proportionality review of all death sentences.  Homicides > murders > murders with at least one aggravating circumstance > death sentences > death sentences affirmed (after proportionality review). o “Weighing” and “non-weighing” states –  In Zant, Court specifically left open question whether jury’s consideration of an invalid aggravating circumstance would violate the 8th Amendment in the case where “the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances,” i.e. in a “weighing” state.  Addressed issue in Clemons v. MS, where jury was required to weigh agg. v. mitigating and one of 2 agg. found – “especially heinous, atrocious, or cruel” – was subsequently determined by MS SC to be invalid.


Court found error in allowing jury to consider the invalid circumstance. Court held that nonetheless the MS SC could uphold the death sentence if it were to reweigh the agg and mitigating circumstances and find that death was appropriate sentence or if it were to find the error harmless beyond a reasonable doubt.  Brown v. Sanders (2006)  SC concluded that because jury’s consideration of circumstances of the crime had the effect of rendering all the death-eligibility factors nonexclusive, CA was a “non-weighing” state and Zant controlled. Court stated that distinction between weighing and non-weighing states was needlessly complex and incapable of providing for full range of possible variations in statutes and that an invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. • Lower courts have continued to apply Clemons in weighing states. Feb. 4: Lowenfield v. Phelps and notes following, pp. 138-146 Lowenfield v. Phelps (1988)  • Issue: o ∆ advances as a second ground for vacating his sentence of death that the sole aggravating circumstance found by the jury at the sentencing phase was identical to element of the capital crime of which he was convicted. ∆ urges that this overlap left the jury at the sentencing phase free merely to repeat one of its findings in the guilt phase, and thus not to narrow further in the sentencing phase the class of death-eligible murderers. • Holding: o Court rejects this argument. LA scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. Constitution requires no more. • Facts: o ∆ sentenced to death in LA for killing a woman with whom he lived, 3 members of her family, and one of her male friends. o Narrowing function occurs only in guilt/innocence phase. Sole aggravating factor here (risk of bodily harm to more than one person) corresponds with 3rd category of first degree murder. o Decision of DP eligibility made at guilt phase. At that state, ∆’s criticism of making the decision at this phase is that once the guilt is found, that’s automatically an aggravating factor. • Rules: o To pass constitutional muster, a capital sentencing scheme must “genuinely narrow the class of persons eligible for the DP and must


reasonably justify the imposition of a more severe sentence on the ∆ compared to others found guilty of murder.” (Zant v. Stephens). o Under capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. By doing so, jury narrows the class of persons eligible for the DP according to an objective legislative definition. Reasoning: o The use of aggravating circumstances is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury’s discretion. Court sees no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. o Narrowing function required for a regime of capital punishment may be provided in either of 2 ways:  Legislature may itself narrow the definition of capital offenses, as TX and LA have done, so that jury finding of guilt responds to this concern, or  legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. o Here, “narrowing function” was performed by jury at the guilt phase when it found ∆ guilty of 3 counts of murder under provision that “offender has a specific intent to kill or to inflict great bodily harm upon more than one person.” o Fact that sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so fact that aggravating circumstance duplicated one of the elements of the crime doesn’t make this sentence constitutionally infirm. Dissent (Marshall, with Brennan and Stevens): o Holding misunderstands the significance of the narrowing requirement. Court treats narrowing function as a merely technical requirement that the # of those eligible for the DP be smaller than number of those convicted of murder. o Narrowing requirement meant to channel discretion of sentencer. By permitting removal of narrowing function from sentencing process altogether, the Court reduces it to a mechanical formality entirely unrelated to the choice between life and death. o LA scheme violates constitutional principles in ways that will inevitably tilt the sentencing scales toward the imposition of the DP. State will have easier time convincing a jury beyond a reasonable doubt to find a necessary element of a capital offense at guilt phase of trial if jury unaware such finding will make ∆ eligible for DP at sentencing. o State will have easier time arguing for imposition of DP, because can remind jury at sentencing phase as it did in this case that necessary agg circ already established beyond reasonable doubt.


Notes pp. 143-145: o “No-narrowing” challenges in state courts:  TN SC held that the scheme failed to narrow sufficiently since the broad definition of felony-murder, coupled with duplicating language of agg circ, meant that an unacceptably large # of first degree murderers were automatically death-eligible.

Limiting the Risk of Arbitariness  Feb. 8: Godfrey v. GA, plus notes, and Arave v. Creech, pp.146-164 Godfrey v. Georgia (1980)  • Facts: o Jury imposed sentence of death for ∆ killing wife and mother-in-law. Aggravating circumstance found in both beyond a reasonable doubt was “that the offense of murder was outrageously or wantonly vile, horrible and inhuman.” o ∆ challenges this aggravating circumstance as being so vague as to create a substantial risk of arbitrariness. • Issue: o Whether, in affirming the imposition of the sentences of death in the present case, the GA SC has adopted such a broad and vague construction of the aggravating circumstance as to violate the 8th and 14th Amendments? • Rules: o Furman and Gregg–  A capital sentencing scheme must provide a “meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not.”  State has constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the DP. o State has responsibility to channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death. • Holding: o USSC reverses ∆’s DP sentence. Under Furman, a factor like this did not help sentencing judges or juries to avoid arbitrary and capricious infliction of the DP. ∆’s crimes cannot have reflected a consciousness materially more depraved than that of any other person convicted of murder. No way to distinguish this case, where DP imposed, from many cases in which it is not. o USSC doesn’t totally invalidate this aggravating factor. State of GA may still use it in next case… • Reasoning: o GA SC here has affirmed a sentence of death based upon no more than a finding that the offense was outrageously or wantonly vile, horrible and inhuman. Nothing in those words that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.


o Court won’t permit “outrageously wanton/vile” to become catchall for
cases not fitting in any other statutory aggravating circumstance. Arave v. Creech (1993)  • Facts: o ∆ beat and kicked to death fellow inmate. DP given based on statutory aggravating circumstance that “by the murder, or circumstances surrounding its commission, the ∆ exhibited utter disregard for human life.” • Issue: o Whether the “utter disregard” circumstance, as interpreted by the Idaho SC, adequately channels sentencing discretion as required by the 8 th and 14th Amendments? • Rules: o Walton v. Arizona –  Court considered AZ’s especially heinous, cruel or depraved circumstance. AZ SC held that a crime is committed in a depraved manner when perpetrator relishes the murder, evidencing debasement or perversion or shows an indifference to the suffering of the victim and evidences a sense of pleasure in the killing.  Court concluded this construction adequately guided sentencing discretion, even though “proper degree of definition of aggravating factor if this nature is not susceptible to mathematic precision.” o State’s capital sentencing scheme must genuinely narrow the class of persons eligible for the DP. When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve the DP from those who don’t, the circumstance must provide a principled basis for doing so. o Osborn (ID Ct’s construction)–  Cold-blooded, pitiless slayer = killer who kills without feeling or sympathy.  Phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, utmost, callous disregard for human life, i.e. the cold-blooded, pitiless slayer. • Holding: o In light of the consistent narrowing definition given the “utter disregard” circumstance by the ID SC, Court satisfied that the circumstance on its face meets constitutional standards. o Narrowing construction sufficiently channeled sentencing judge’s discretion and narrowed the class of persons eligible for DP, thus precluding arbitrary and capricious administration of DP. Judges are constitutionally capable of deciding whether a ∆ killed without feeling or sympathy… • Reasoning: o Believe that sentencing judge reasonably could find that not all ID capital ∆s are “cold-blooded.” Some exhibit feeling.


o Osborn construction satisfies the narrowing requirement. Narrowed in a
meaningful way the category of ∆s upon whom capital punishment may be imposed. o Court doesn’t think “all kinds of factors” may demonstrate this aggravating factor’s requisite state of mind. o This phrase is different from “wantonly vile,” since terms describe ∆’s state of mind, not his mens rea but his attitude toward the conduct and victim. ∆’s state of mind is not a subjective matter, but a fact inferred from the surrounding circumstances. Dissent (Blackmun, with Stevens): o Because the metaphor “cold-blooded” by which ID defines its “utter disregard” circumstance is both vague and unenlightening, and because majority’s recasting of that metaphor is not dictated by common usage, legal usage, or usage of ID courts, statute fails to provide meaningful guidance to sentencer as required by Constitution. o Without some rationalizing principle to connect them, the findings of “cold-bloodedness” stand as nothing more than fact-specific, gut-reaction conclusions that are unconstitutional. Can’t imagine any crime that wouldn’t fall within circumstances here, “every murder committed that is without conscientious scruples against killing.” Factor broad enough to cover every case… Notes (pp. 163-164): o Effects of broad death eligibility:  Principal concern with broad death-eligibility statutes is that they lead to arbitrary imposition of the DP. Under such schemes, no rational distinction between the few who are sent to death row and the many who are not.  Threat of DP used to encourage guilty pleas…

Chapter 10  Litigating the Capital Case: Guiding the Sentencer • Once the sentencer’s discretion to impose DP has been limited by statutory scheme which “genuinely narrows” the death-eligible class, what guidance must, or must not, be given to the sentencer in selecting from that class those to receive the DP? • Tuilaepa v. CA  Ct. explains the difference between the jury’s eligibility determination and its selection decision and considers a vagueness challenge to several factors given to the jury for its selection decision. Feb. 10: Tuilaepa v. CA, plus note, pp.605-615 Tuilaepa v. CA (1994)  • Facts: o In CA, to sentence ∆ to death for 1st-degree murder the trier of fact must find the ∆ guilty and also find one or more of 19 special circumstances listed. In penalty phase, trier of fact must consider # of specified factors in deciding whether to sentence ∆ to death.


o Petitioner contends that 3 of sentencing factors are unconstitutional and
that, as a consequence, it was error to instruct their juries to consider them. o Challenged factors:  1) requiring sentencer to consider “circumstances of crime of which ∆ was convicted in present proceeding and the existence of any special circumstances found to be true.”  2) requiring sentencer to consider “the presence or absence of criminal activity by the ∆ which involved the use or attempted use of force or violence or the express or implied threat to use force or violence; and  3) requiring sentencer to consider “the age of the defendant at the time of the crime.” Issue: o Whether 3 of the penalty phase sentencing specified factors are unconstitutionally vague under decisions of Court construing Cruel and Unusual Punishments Clause of 8th Amendment, made applicable to states by 14th? Rules: o Capital punishment cases under 8th Amendment addresses 2 different aspects of capital decisionmaking process: eligibility decision and selection decision.  To be eligible for the DP, the ∆ must be convicted of a crime for which the DP is a proportionate punishment (Coker).  To render ∆ eligible for DP in homicide case, trier of fact must convict ∆ of murder and find one “aggravating circumstance” at either guilt or penalty phase (Zant v. Stephens). o Aggravating circumstance must meet 2 requirements:  1) circumstance may not apply to every ∆ convicted of a murder; must apply only to subclass of ∆s convicted of murder (Arave).  2) Agg circumstance may not be unconstitutionally vague (Godfrey). o Selection decision requirements:  What is important is individualized determination on basis of character of individual and circumstances of crime. That requirement is met when jury can consider relevant mitigating evidence of character and record of ∆ and circumstances of crime. o A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision. Holding: o None of the 3 factors is defined in terms that violate the Constitution. Reasoning: o With (1), CA factor instructs jury to consider relevant subject matter and does so in understandable terms. Circumstances of crime are traditional subject for consideration by sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under 8th Amendment jurisprudence.

• •


o With (2), phrased in conventional and understandable terms. Asking jury to
consider matters of historical fact; not vague.

o With (3), factual inquiry is of most rudimentary sort and no suggestion
“age” is vague. Difficulty in application does not mean vagueness. o Discretion to weigh and evaluate the circumstances related to a particular ∆ and the crime he committed is not impermissible in capital sentencing process. A sentencer may be given unbridled discretion in determining whether the DP should be imposed after it has found that the ∆ is a member of the class made eligible for that penalty… Dissent (Blackmun): o Open-ended factors and a lack of guidance to regularize the jurors’ application of these factors create a system in which, as a practical matter, improper arguments can be made in the courtroom and credited in the jury room. At a loss to see how these challenged factors furnish the clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death. o Vague aggravating factors like these can exist in every case, letting prosecution make any story lean towards death if they want it to.

Limiting the Risk of Arbitrariness  Feb. 11: Barclay v. Florida, plus notes, and Pulley v. Harris, pp.164-180 Barclay v. Florida (1983)  • Facts: o ∆ with some other picked out a white victim. With co-∆ convicted of first degree murder by jury. Trial judge didn’t find any mitigating circumstances. Decided that ∆’s criminal record constituted an aggravating rather than mitigating circumstance. o ∆ argues trial judge improperly found that his criminal record was an “aggravating circumstance.”  Florida law provides that ∆’s prior criminal record is NOT a proper “aggravating circumstance.” o ∆ argues that trial judge improperly found the “under sentence of imprisonment” and “previously been convicted of violent felony” aggravating circumstances.  Florida SC construed trial judge’s opinion as finding that these agg circumstances essentially had no relevance here. No reason for Court to disturb that here… o Criminal record introduced here to show LACK of mitigating circumstance. • Issue: o Whether Florida may constitutionally impose the DP on petitioner Barclay when one of the “aggravating circumstances” relied upon by the trial judge to support the sentence was not among those established by the Florida DP statute?  Must ∆s be resentenced when trial courts erroneously consider improper aggravating factors?


o Whether trial judge’s consideration of improper agg circ so infects the •
balancing process created by the Florida statute that it is constitutionally impermissible for the Florida SC to let the sentence stand? Rules:

o Florida law prohibits the consideration of a ∆’s prior criminal record as a
statutory aggravating factor. However, nothing in the 8th Amendment prohibits admission of a ∆’s criminal record. Holding: o Don’t accept ∆’s premise that the balancing process was infected by the trial judge’s consideration of an improper agg factor. o While this does violate Florida law (requiring a “harmless error type analysis,” it doesn’t violate the constitution. Reasoning: o Trial judge’s consideration of ∆’s crim record as an aggravating circ was improper as matter of state law. That record didn’t fall within definition of any statutory agg circ and Florida law prohibits consideration of any nonstatutory agg circ. o However, no reason why Florida SC cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered agg circ could not possibly affect the balance. o Under Florida law, if there are no statutory mitigating circ, one valid statutory agg circ will generally suffice to uphold DP. Dissent (Marshall, with Brennan): o Failure of Florida SC to conduct any considered appellate review in this case requires that petitioner’s death sentence be vacated. o Trial judge in this case plainly misapplied aggravating circumstances enumerated in Florida law. Plurality proceeds on unfounded assumption that, although errors may have been made by the trial judge, the Florida SC concluded that errors were harmless. o Plurality’s reliance on harmless-error doctrine has no relation to Florida Supreme Court’s decision in this case.  Here, Florida SC didn’t identify single error in trial judge’s explanation. Perfunctory analysis focusing on co-∆… o Every ∆ sentenced to death is entitled to meaningful appellate review, and where it is clear Florida SC hasn’t provided such review, death sentence should be vacated. Notes (p.174-175): o State courts’ application of state law:  As a general rule, a state court’s interpretation of its own law or its denial of state-created rights, does not raise a federal question. o 2 places where a state court action may violate the 14th A DP Clause  If state appellate ct interprets state crim law in a novel manner thus denying D fair notice of elements of the crime.


 State laws which guarantee crim Ds certain rights beyond those rqd
by the fed const may give rise to liberty interests that are protected against arb deprivation under the dp clause Pulley v. Harris (1984)  • Facts: o ∆ claimed on appeal that CA capital punishment statute was invalid under US Constitution because it failed to require the CA SC to compare ∆’s sentence with the sentences imposed in similar capital cases and thereby to determine whether they were proportionate. • Issue: o Whether the 8th Amendment, applicable to the State through the 14 th Amendment, requires a state appellate court, before it affirms a death sentence, to compare the case before it with the penalties imposed in similar cases if requested to do so by the prisoner? • Rules: o While emphasizing the importance of mandatory appellate review under the GA statute in Jurek, Court didn’t hold that without comparative proportionality review the statute would be unconstitutional. o Proportionality review considered to be additional safeguard against arbitrarily imposed death sentences, but comparative review NOT held to be constitutionally required. • Holding: o Comparative proportionality review is NOT constitutionally required. • Reasoning: o No basis in cases for holding that comparative proportionality review by an appellate court is required in every case in which DP imposed and ∆ requests it. o By requiring jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases. o Jury’s discretion is suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. Decision reviewed by trial judge and State SC. o Post-Furman, all new state statutes provided for automatic appeal of DP. Most require reviewing court to some extent determine whether, considering the crime and the ∆, the sentence is disproportionate to that imposed in similar cases. Not every state has adopted this… Race and Jury Selection  Feb. 15: Barber v. U.S. (TWEN) and Turner v. Murray, pp.358-366 plus note 3 p.383 (what right to voir dire on racial bias?). Barber v. U.S.  • Facts:


o Interracial couple convicted on laundering charges. At start of trial, ∆’s •
requested that trial court ask whether any member of the venire would prejudge the ∆s because they were partners in interracial marriage. Issue:

o Problem of race and the DP in the context of the voir dire of the capital

o Are ∆’s entitled to question the jury on racial attitudes during voir dire?

o Absent special circumstances of a constitutional dimension – where racial
issues are “inextricably bound up with the conduct of a trial” – the conduct of voir dire is left to the trial court’s broad discretion, and we may find an abuse of discretion in a fed court’s refusal to ask prospective jurors about racial prejudice only when  1) such a request has been made and  2) there is a “reasonable possibility” that racial prejudice might influence the jury. Holding: o ∆s are NOT entitled to question jury on racial attitudes during voir dire.  Charges against the ∆s did NOT involve any element relating to race and race wasn’t part of the defense… o When racial issues are “inextricably bound up with the conduct of the trial,” the constitutional guarantee of a trial by an impartial jury requires that a court not refuse a request for voir dire directed to racial prejudice. Reasoning: o Even though generalized prejudices should not routinely be made a subject of inquiry during voir dire, it is also clear that when prejudice threatens the fairness of the process or the result, such an inquiry is required to eliminate that prejudice. When racial issues are “inextricably bound up with the conduct of the trial,” the constitutional guarantee of a trial by an impartial jury requires that a court not refuse a request for voir dire directed to racial prejudice.  This circumstance may occur when race is an issue to be tried either as an element of the offense or a defense or where racial issues are connected with the resolution of relevant facts. o BUT even if racial issues are NOT “inextricably bound up with the conduct of the trial” – the standard underpinning the constitutional mandate – a fed court may abuse its discretion in refusing to inquire into racial prejudice if there is a “reasonable possibility” that racial prejudice will influence the jury.  Under this non-constitutional standard, courts should exercise their discretion on a case-by-case basis, taking into account the totality of the circumstances. o Here, record presents no indication that the constitutional guarantee of a fair trial required voir dire into racial prejudice in this case, but we must still determine whether the district court abused its discretion under the non-constitutional. ∆ did make a request for voir dire into racial prejudice,


they failed to establish a “reasonable possibility” that racial prejudice might influence the jury.  Desire to “clear the air” on possibility of racial prejudice is not enough here. A line of questioning about interracial marriage would’ve created issue of greater risk of injustice, or its appearance, by suggesting that even in a case where race is not an issue, justice turns upon the “pigmentation of skin or the accident of birth….” Dissent (Powell): o We don’t live in a colorblind world, so it is reversible error to refuse to ask about prospective jurors’ feelings about mixed race marriages. o SC has held that where a ∆ is accused of a violent crime and where the ∆ and the victim are members of different racial or ethnic groups, a reasonable probability of racial prejudice exists (Rosales-Lopez case). o Similarly here, where the Barbers are co-∆s and participants in an interracial marriage that violates deep-seated sexual, social, and until recently legal, taboos, there is a reasonable possibility of prejudice against the Barbers. o Therefore feels that it was reversible error not to ask any sort of “proxy” question on voir dire specifically aimed at uncovering prejudice toward marriage between blacks and whites.

Turner v. Murray (1986)  • Facts: o ∆ is black man sentenced to death for murder of white storekeeper. Judge DID ask before trial that if they knew victim was white if any person had reason they couldn’t render fair and impartial verdict; they said no. • Issue: o Problem of race and the DP in the context of voir dire of the capital jury. o Whether the trial judge committed reversible error at voir dire by refusing ∆’s request to question prospective jurors on racial prejudice? • Rules: o Capital ∆ accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. o 2 sub rules –  Trial judge retains discretion as to form and # of questions on the subject including the decision whether to question the venire individually or collectively AND ∆ cannot complain about judge failing to ask the question unless ∆ specially requested it. o Peremptory strikes are at discretion of court, NOT guaranteed by the constitution. • Holding: o Plurality – NO, ∆s are NOT entitled to question jury on racial attitudes during voir dire. Grant relief as to penalty, but not as to guilt (no DP, but he is still guilty because at guilt phase of trial, the jury had no discretion than it would have had if the crime charged had been non-capital murder).


o Unacceptable risk of racial prejudice infected capital sentencing
proceeding because:  1) the fact that crime charged involved interracial violence,  2) the broad discretion given the jury at the DP hearing  3) the special seriousness of the risk of improper sentencing in a capital case. o Capital ∆ accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. Reasoning: o Idea that individual characteristics and circumstances of offense are relevant to sentencing, not to guilt/innocence. o Plurality opinion – broad inquiry in these cases must be whether under all circumstances presented, there was a constitutionally significant likelihood that absent questioning about racial prejudice, that jurors would not be indifferent as they stand unsworn.  Capital ∆ accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. o Jurors may be aware of ∆’s race by looking at him, but how informed are we about our own bias? o Trying to get jurors who can’t serve because so impaired by beliefs. Someone opposed to capital punishment is removed for cause, removal for race would be use of peremptory strikes rather than strikes for cause. Want ability to make intelligent assessment of jurors –  If want to get someone tossed out as racist, go about it in roundabout way. Where are kids in school? Any black friends? How often do you talk with someone of opposite race? Want open-ended questions… o Only problem is bringing race of ∆ to everyone’s attention. Do you really want jurors to think about race? Brennan (concurring in part and dissenting in part): o ∆ deserves new trial on issue of guilt. Distinction between the jury’s role at a guilt trial and its role at a sentencing hearing is a distinction without substance so far as jury bias is concerned. o Agrees that when those three factors are present, the trial court commits constitutional error by refusing a defense request to ask the jurors if the race of either the victim or the accused bears on the decision to be fair. o Cannot accept that the judge is released from this obligation to insure an impartial jury when a capital jury is hearing evidence about a crime involving interracial violence but passing only on the issue of guilt/innocence, rather than appropriate sentence.  Racial bias is also at guilt phase of bifurcated trial. Court never explains why they think prejudice has more impact at sentencing phase than guilt. To let a person be convicted by a prejudiced jury violates those same value in precisely the same way.


Powell (dissenting): o This will create more habeas petitions. Court today adopts per se rule applicable in capital cases, under which a capital ∆ accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. o There is nothing in the record that reflects racial overtones of any kind. Until today, a trial judge committed an unconstitutional abuse of discretion by refusing to inquire into racial prejudices ONLY when ∆ showed that racial issues were inextricably bound up with the conduct of the trial.  There are enough significant limits on the jury’s exercise of sentencing discretion, illustrating why the court’s per se rule is unfounded…

Feb. 17: McCleskey v. Kemp, excerpt on TWEN. McCleskey v. Kemp (1987)  • Issue: o Does GA DP statute racially discriminate against ∆ in violation of the EPC of the 14th Amendment? Does GA DP statute violate the 8th Amendment by giving juries so much discretion in reaching their decision on capital punishment that racial discrimination may be a potential factor in their deliberations? • Holding: o NO – statistical evidence showing that one racial group receives a disproportionate amount of death sentences, as opposed to other groups, is NOT sufficient to challenge a state DP statute under the EPC of the 14 th Am. A ∆ must prove the presence of racial discrimination in his OWN case.  Discretion allows a jury to be influenced by racial prejudice, but it does not violate the 8th Amendment since juror discretion frequently works to the ∆’s benefit.  Study doesn’t support an inference that this jury, in his OWN case, acted with purposeful racial discrimination (a threshold showing for proof of an EPC violation). th o With 8 Amendment claim, NO – discretion in the criminal justice system is not in and of itself an 8th Amendment violation, particularly in light of the fact that in many instances discretion works to the benefit of the criminal ∆.  Moreover, insomuch as the 8th Amendment applies to all punishments, if ∆ prevailed on these grounds, courts would soon be faced with similar claims for every other type of penalty…  The disproportionate sentencing alleged with respect to race could also be expanded to discrepancies in sentencing in relation to other minority groups, or gender, or facial characteristics. o The basis on which ∆ challenges his sentence, statistical comparisons, lacks any limiting principle. • Facts:


o ∆’s conviction of murder and 2 counts armed robbery and DP affirmed by
GA SC. ∆ petitioned for habeas relief. Black ∆ killed white cop during robbery. o One of ∆’s claims –That GA capital sentencing process is administered in a racially discriminatory manner in violation of the 8th and 14th Amendments to the US Constitution. In support of his claim, ∆ proffered a statistical study. o Statistical study – “The Baldus Study”  Purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.  Also, divided the cases according to the combination of the race of the ∆ and the race of the victim. Found that DP was assessed in 22% of cases involving black ∆s and white victims; 8% of cases involving white ∆s and white victims; 1 % of cases involving black ∆s and black victims; and 3% of cases involving white ∆s and black victims.  Baldus found that prosecutors sought the DP in 70% of cases involving black ∆s and white victims, 32% of cases involving white ∆s and white victims; 15% of cases involving black ∆s and black victims, and 19% of cases involving white ∆s and black victims.  NOTABLE PART – even after taking into account of 39 nonracial variables, ∆s charged with killing white victims were 4.3 times as likely to receive a death sentence as ∆s charged with killing blacks. According to this model, black ∆s were 1.1 times as likely to receive death sentence as other ∆s.  Only in mid-range cases where unsure to impose DP that racial factors start taking place in minds of jurors… Rules: o A ∆ challenging his sentence on the grounds of discrimination must show ACTUAL discrimination in his own case, statistical comparisons of sentencing among different racial groups is not sufficient to show EPC violation. Neither is mere fact that racial discrimination may potentially inform a juror’s decision as to ∆’s sentence enough to make the entire concept of discretion in the criminal justice system “cruel and unusual” punishment under the 8th Amendment. o To show 8th Amendment violation, ∆ has burden of proving existence of purposeful discrimination. Also must prove that purposeful discrimination had discriminatory impact on him. Reasoning:

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o Majority – A ∆ challenging his sentence on the grounds of discrimination
must show ACTUAL discrimination in his own case, statistical comparisons of sentencing among different racial groups is not sufficient to show EPC violation. Neither is mere fact that racial discrimination may potentially inform a juror’s decision as to ∆’s sentence enough to make the entire concept of discretion in the criminal justice system “cruel and unusual” punishment under the 8th Amendment.  Study fails because failed to establish that any of the decisionmakers in ∆’s case acted with discriminatory purpose in violation of the EPC and that at most it indicated discrepancy that appeared to correlate with race, not a constitutionally significant risk of racial bias affects GA DP process, so did NOT establish violation of 8 th Amendment. o SC rejects equal protection claim –  A D who alleges an EP violation has burden of proving existence of purposeful discrimination. Corollary to this principle is that a criminal D must prove that the purposeful discriminatory had a discriminatory effect on him. So that decision-maker in Ds case acted with discriminatory purpose. And D has no evidence specifically from own case. We can’t allow this study to show, because we need proof of discriminatory in specific case, or else study would allow blanket discriminatory claim. o Court has accepted statistics as proof of intent to discriminate in the past in certain limited contexts –  1) Court has accepted statistical disparities as proof of an EPC violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a “stark” pattern to be accepted as the sole proof of discriminatory intent under the Constitution, because of the nature of jury selection tasks, Court allows a finding of constitutional violation even when the statistical pattern doesn’t approach such extremes.  2) Court accepted stats in form of multiple regression analysis to prove statutory violations under Civil Rights Act. • In those cases, the statistics relate to fewer entity and fewer variables relevant to the challenged decisions. And in those 2 the decision-maker has the opportunity to explain the statistical disparity and here, state has no practical opportunity to rebut the Baldus study… o Because discretion is essential to the criminal justice system, Court would demand exceptionally clear proof before would infer that discretion has been abused. The unique nature of the decisions at issue in this case also counsel against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, court holds that Baldus study is clearly insufficient to support an inference that any of the decision-makers in ∆’s case acted with discriminatory purpose…  For this EPC claim to prevail, ∆ would have to prove GA Legislature enacted or maintained the DP statute BECAUSE of an anticipated racially discriminatory effect. In Gregg v. GA, this Court found that





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GA capital sentencing scheme could operate in a fair and neutral manner. There was no evidence then, and there is none now, that GA legislature enacted the capital punishment statute to further a racially discriminatory purpose. Court rejects 8th Amendment claim too –  Looking to historical interpretation of 8th Amendment – Court recognized that constitutional prohibition against cruel and unusual punishments is “not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice. Court identified a second principle inherent in the 8th Amendment that “punishment for crime should be graduated and proportioned to offense.” Penalty must accord with dignity of man. 2 decisions guided resolution of ∆’s 8th Amendment claim –  Furman  DP was exacted with much frequency even for the most atrocious crimes and there was no meaningful basis for distinguishing the few cases in which it was imposed from the many cases in which it was not.  Gregg  Where court addressed question left open in Furman – whether punishment of death for murder is “under all circumstances” cruel and unusual in violation of the 8th? The “actions of juries” were “fully compatible with the legislative judgments.” Court noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded “considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular state, the moral consensus concerning the DP and its social utility as a sanction, require Court to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus not unconstitutionally severe. Then Gregg questions arbitrariness and capriciousness, Woodson on narrowing, and detailed guidance of the sentence from Proffitt. Post-Furman jurisprudence has identified constitutionally permissible range of discretion in imposing the DP.  1st: there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decision-maker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense  2nd: States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant. WE DO NOT ACCEPT DS 8 TH A ARG. Court disagrees with ∆’s proportionality argument facially –

 Absent a showing that GA capital punishment system operates in an
arbitrary and capricious manner, ∆ cannot prove a constitutional violation by demonstrating that other ∆s who may be similarly situated did NOT receive the DP.  Because ∆’s sentence was imposed under GA sentencing procedures that focus discretion “on the particularized nature of the crime and the particularized characteristics of the individual ∆,” Court lawfully may presume that ∆’s death sentence was NOT “wantonly and freakishly” imposed, and thus that sentence was not disproportionate within any recognized meaning under the 8th. o Court disagrees with ∆’s proportionality argument as applied –  Court doesn’t find likelihood that certain factors entered into some decisions or that his sentence is excessive because racial considerations influence capital sentencing decisions in GA.  Court has made many efforts to erase racial prejudice. Jury is a good representative of criminal ∆’s community. The inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury’s function to make the difficult and uniquely human judgments that defy codification and that “build discretion, equity and flexibility into a legal system.”  Gregg -type statute imposes unprecedented safeguards in the special context of capital punishment. These include: o (i) a bifurcated sentencing proceeding; o (ii) the threshold requirement of one or more aggravating circumstances; and o (iii) mandatory State Supreme Court review. • Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution.  Claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups and to gender. Then any arbitrary variable could be argued like (tongue ring). No limiting principle in Ds arguments  Ds argument best presented to legislative bodies because they can do moral values of people and statistical stuff better than us.

 Even a sophisticated multiple-regression analysis such as the Baldus
study can only demonstrate a risk that the factor of race entered into some capital sentencing decisions and a necessarily lesser risk that race entered into any particular sentencing decision.

Dissent (Brennan): o ∆ need only demonstrate that there was a risk that his sentence was imposed as a result of racial prejudice. The Baldus Study adequately demonstrates that risk by showing that more likely than not a black ∆ will


receive a death sentence as compared to a white ∆ (mainly about the 8 th Amendment). o DP in ALL circumstances cruel and unusual punishment forbidden by 8 th. o McClesky’s claim does differ, however, in one respect from earlier cases:  It is the first time to base a challenge not on speculation on how a system might operate, but on empirical documentation of how it DOES operate. o ∆’s evidence cannot rest solely on #s themselves. Must ask whether the conclusion suggested by those #s is consonant with our understanding of history and human experience. GA’s legacy of a race-conscious criminal justice system, as well as this Court’s own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey’s claim is not a fanciful product of mere statistical artifice. Dissent (Blackmun): o Study demonstrates a clear pattern of differential treatment in imposing the DP on the basis of race. ∆ has met his burden of showing a prima facie case of purposeful discrimination, and the burden should have shifted to the state to disprove that allegation (mainly about EPC claim). Dissent (Stevens): o Majority’s concern, that allowing ∆’s claim to prevail would sound the death knell for any DP statute in GA is unfounded. o Baldus study indicates the existence of certain categories of extremely serious crimes, when death is imposed by juries regardless of the race of the ∆ or victim. Narrowing the class of death-eligible offenses to just those categories would allow GA to have a non-discriminatory capital punishment statute. Book Notes on McCleskey  The “inevitability” of racial disparities (p.196) o Focusing on Court’s suggestion that apparent racial disparities in sentencing is inevitable. Many people have challenged this and say 4 possible approaches to dealing with racial discrimination in capital punishment:  1) narrowing the class of death-eligible cases  2) requiring standards to limit the exercise of prosecutorial discretion  3) recognizing claims of racial discrimination in individual cases and evaluating those claims under burdens of proof comparable to those applied in other areas of law; or  4) abolishing the DP. o Inevitability is really unwillingness to make an effort…

Feb. 18: pp.217-229, handout. Plus textbook notes 1-6 pp.195-198. Notes pp.195-198  • “Underprotection of the African-American community” –


o McCleskey’s statistics established that, in application of DP in GA, although
some “overenforcement” against black ∆s, there was far more “underprotection” of black victims. o Historically, the consistent failure to criminal justice officials to treat crimes against blacks as seriously as crimes against white people. Findings in other states – o Every state studied appeared to have significant racial disparities in its capital system, particularly those associated with the race of the victim. The Racial Justice Act – o Shortly after McCleskey, Racial Justice Act introduced in Congress. RJA would’ve established as prima facie evidence of racial discrimination the type of statistical evidence presented in the Baldus study. o As of 2009, only KY and NC had enacted RJA. Non-racial arbitrariness – o Evidence application of DP does depend on gender. Generally reserved for men.  1973-2007, women accounted for about 10% of murder arrests, but only 2% of death sentences and 1% of executions. o Within particular state, substantial disparities in use of DP among various counties. o In gubernatorial election year, probability of execution increases more than 25%. Reconsideration by Justice Powell – o In 1991, after retirement, Powell said would’ve voted differently in McCleskey. Come to think DP should be abolished.

• •

Feb 22: pp.233-250, handout. Feb. 24: Miller El v. Dretke and notes following, pp.366-382 (limitations on racially biased peremptory strikes in jury selection). In particular description on p.368 and in note 2 p.382. Miller El v. Dretke (2005)  • Issue: o ∆ asked for review of district court’s rejection that prosecution in his capital murder trial made peremptory strikes of potential jurors based on race (did ∆ satisfy his burden of proof of discriminatory purpose at 3 rd stage of Batson challenge)? o Court addressing ∆’s claim that prosecutors engaged in racial discrimination in their use of peremptory challenges. • Holding: o ∆ prevails on his claim and needs habeas relief. Race was significant in determining which jurors were challenged and which were not. • Facts: o ∆ killed and robbed hotel employee. During jury selection, prosecution used peremptory strikes against 10 qualified black venire members. During


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his appeal, SC denied ∆’s request to pick new jury and trial ended with his death sentence for capital murder. o During his appeal, SC decided Batson v. Kentucky, which created the rule – discrimination by the prosecution in selecting the ∆’s jury sufficed to establish the constitutional violation of the 14th Amendment. o Out of 20 black members of 108 person venire panel, only 1 served. 10 were peremptorily struck by prosecution. Prosecution used their peremptory strikes to exclude 91% of the eligible black venire members… happenstance unlikely to produce this disparity. Rules: o Racial discrimination by State in jury selection offends the EPC.  ∆ could make out prima facie case of discriminatory jury selection by “totality of relevant facts” about prosecutor’s conduct during ∆’s own trial.  Once ∆ makes prima facie case, burden shifts to State to come forward with neutral explanation for challenging jurors within targeted class.  Prosecutor must give clear and reasonably specific explanation of legitimate reasons for exercising challenge.  Batson provides opportunity to prosecutor to give reason for striking juror, and requires judge to assess plausibility of that reason in light of all evidence with a bearing on it. o Batson v. Kentucky, which created the rule – discrimination by the prosecution in selecting the ∆’s jury sufficed to establish the constitutional violation of the 14th Amendment. o Court looks to black panelists struck compared to white panelists struck. If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise non-black similar juror allowed to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step. o Batson challenge doesn’t call for mere exercise in thinking up any rational basis. If stated reason doesn’t hold up, its pretextual significance doesn’t fade because a trial judge or an appeals court can imagine a reason that might not have been shown up as false. Reasoning: o Specific reasons Court thinks race an issue here –  Prosecutor resorts during voir dire to procedure called “jury shuffle” and no racially neutral reason has ever been offered.  Also, prosecutor posed contrasting voir dire questions posed respectively to black and nonblack panel members, on 2 different subjects. Gave gruesome depiction of DP to blacks, and bland to white, hoping to get blacks to reject DP. o State’s rationale doesn’t adequately explain why most white panel members opposed or ambivalent, all were asked trick question. State used trick questions to try and induce disqualifying answer… Concurring opinion (Breyer):

o Only way to end racial discrimination that peremptories inject into jury
selection process is to eliminate peremptory challenges totally.

o Sees many issues with Batson – litigants are free to misuse peremptory
challenges as long as the strikes fall below the PF threshold level. Prosecution need only tender a neutral reason, not even persuasive or even plausible one. Rule asks judges to engage in awkward tasks of second guessing a prosecutor’s instinctive judgment, underlying basis for which may be invisible even to Prosecutor exercising the challenge. Notes p.382  Establishing a prima facie case – • Johnson v. CA (2005)  SC addressed burden of proof at first stage of Baston challenge. In Johnson, ∆, a black man, was charged with 2nd degree murder and assault on child resulting in death in killing of 19 month old white child. During jury selection, objected after prosecutor struck all 3 blacks in jury pool. Trial judge rejected challenge, without requiring prosecutor to explain strikes, finding that ∆ had not make out prima facie case of discriminatory purpose. o On appeal after conviction, CA SC upheld trial court’s ruling on ground that ∆ failed to produce “strong evidence that makes discriminatory intent more likely than not if challenges are not explained.” • SC reversed, finding no support in Batson for a “more likely than not” standard for ∆’s prima facie case and holding that ∆ need do no more than proffer facts giving rise to inference of discrimination. Batson v. Kentucky (1986)  • Distribution of the burden of proof to establish a Batson claim – Batson’s proof as compared with burden of proof required under McCleskey: o Held: a Pros’s use of peremptory challenge, the dismissal of jurors w/o stating a valid cause for doing so, may not be used to exclude jurors based solely on their race. Ct ruled that this practice violated the EPC. How is this dif from older std? lower burden of proof D must show to make a PF case (which does not require proof of reasoning) on purposeful discrimination. o D could make a Pf case for purposeful racial discrimination in jury selection by relying on the record only in his case. The D first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire [jury pool] members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the venire men from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. o Once the D makes a PF case showing the burden shifts to the state to come fwd with a neutral explanation for challenging jurors w/in an arguably targeted class. Although there may be any number of bases on which a Pros reasonably might believe that it is desirable to strike a juror who is not excusable for cause.., the Pros must give a clear and reasonably specific


explanation of his legit reasons for exercising the challenge. The TC then will have the duty to determine if the D has establish purposeful discrimination . o Low threshold for PF case: statistical imbalance is enough. Proffer facts giving rise to an inference of discrimination. Need NOT meet the more likely than not std. o But Batson’s individualized focus came with a weakness: if any facially neutral reason sufficed to answer Batson challenge, then Batson would not amount to much more than old rule. Batson says a D may rely on all relevant circumstances to raise an inference of purposeful discrimination. Batson tries to help situation by 1) requiring Ds to establish PR case of discrimination, 2) asking Pros then to offer a race neutral explanation for their use of peremptory, and then 3) requiring Ds to prove that the neutral offered is pretextual, Batson is really a weak rule. Feb. 25: U.S. v. Bass cases on TWEN, Stephens v. State. US v. Bass (6th Circuit)  • Issue: o ∆ wants access to US’s documents pertaining to capital charging practices in order to show the DP was sought against him because of his race. • Holding: o Court affirms district court’s discovery order and US must submit documents pertaining to capital charging practices. o DC’s decision that stark discriminatory effect of federal DP protocol, when coupled with official statements of members of DOJ, was at least some evidence tending to show that race played role in deciding what ∆s to charge with death-eligible offenses, was not abuse of discretion and Court supported DC’s decision to order discovery on ∆’s selective prosecution claims. • Facts: o Black ∆ alleged that government had determined to seek DP against him because of his race. Moved to dismiss DP notice and in the alternative, for information relating to government’s capital charging practices. o Federal grand jury charged ∆ with intentional firearm killing of 2 people. US filed intent to seek DP. ∆ moved to dismiss DP notice and requested discovery pertaining to US’s capital charging practices. DC granted request, US won’t comply, DC dismisses DP notice. o Process being questioned –  Dept of Justice report: all death-eligible charge brought by US are subjected to the Departments DP decision-making procedures. When US charges death eligible crime they have to submit a bunch of shit. Bass requested this shit and US wouldn’t give it to him. After hearing on his motion, DC found that he had shown sufficient evidence of racial bias in the DP decision process to justify further discovery. US refuse to comply with discovery order. • Rules:


o Scope of discovery is w/in sound discretion of the TC. We review a DC
discovery order in a criminal case for abuse of discretion. Under this standard, "the relevant inquiry is not how the reviewing judges would have ruled if they had been considering the case in the first place, but rather, whether any reasonable person could agree with the district court. o Court uses Armstrong case – to make out a claim of selective prosecution, a ∆ must show both a discriminatory effect AND a discriminatory purpose or intent. o Armstrong - The Supreme Court noted that "in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Accordingly, "the showing necessary to obtain discovery [in a selective prosecution case] should itself be a significant barrier to the litigation of insubstantial claims." Armstrong 's plain language requires only that a defendant must present "some evidence tending to show the existence of the discriminatory effect element."  Nonetheless, we have read Armstrong to require some evidence of the discriminatory intent element as well.  To establish discriminatory effect, a defendant "must show that similarly situated individuals of a different race were not prosecuted." As an example of "some evidence" showing a "discriminatory effect on blacks as compared to similarly situated whites," Armstrong cited a statistic showing that blacks were "at least 1.7 times as likely as whites" to have a state's disenfranchisement law applied to them. To establish discriminatory intent, a defendant must show that the prosecutorial policy "was motivated by racial animus.  “Some” = less than clear and convincing, less than preponderance. Reasoning: o Here, Bass’ evidence shows the same type of statistical disparity the SC approved in Armstrong as indisputable evidence of law’s discriminatory effect. o Distinguished from McCleskey –  McCleskey held that statistics showing the discriminatory effect of a state's death penalty procedure do not, without more, constitute proof of a discriminatory intent. In McCleskey, however, the Supreme Court, sitting in federal habeas review, was addressing whether the defendant had carried his burden of proof on the merits of his selective prosecution claim. In contrast, we must determine only whether Bass has shown "some evidence tending to show the existence of ... discriminatory intent" sufficient to warrant discovery. McCleskey will certainly preclude Bass's selective prosecution claim if, at the end of discovery, he fails to show any additional evidence that the United States intentionally discriminates against blacks through the death penalty protocol. It does not, however, pose any bar to Bass at this preliminary stage.

US v. Bass (SCOTUS) 


• •

Holding: o Reversed the 6th Circuit’s holding. Reasoning: o Armstrong says that D must make a credible showing that similarly situated individuals of a different race were not prosecuted. 6 th said D did make this showing based on nationwide stats. Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decision-makers in respondent's case), raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants. And the statistics regarding plea bargains are even less relevant, since respondent was offered a plea bargain but declined it. See Pet. for Cert. 16. Under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery. o 6th Circuit decision is contrary to Armstrong and threatened the performance of a core executive constitutional function.

Stephens v. State (1995) • Issue: o Was the mandatory life sentence for 2nd conviction for sale or possession of controlled substance with intent to distribute constitutional as applied where 100% of persons serving sentence were black? • Holding: o Statute WAS constitutional as applied. Mandatory life sentence for second conviction for sale or possession of controlled substance with intent to distribute did not violate state or federal EPC as applied, even though African-Americans comprised 100% of persons from ∆’s county serving the sentence and represented 98.4% of persons serving those sentences statewide; ∆ conceded that he couldn’t prove discriminatory intent by legislature, and ∆ failed to present evidence by race concerning eligible persons against whom DA failed to seek the sentence. o Mandating life sentence for 2nd conviction for sale or possession of controlled substance with intent to distribute has rational basis and, therefore, does NOT deprive persons of due process or equal protection. • Facts: o Black ∆ convicted in SC of selling cocaine. ∆ appealed, alleging racial discrimination in application of mandatory life sentence for 2nd conviction for sale with intent. • Rules: o Because the district attorney in each judicial circuit exercises discretion in determining when to seek a sentence of life imprisonment, a defendant must present some evidence addressing whether the prosecutor handling a particular case engaged in selective prosecution to prove a state equal protection violation. • Reasoning:


o As trial court found, Stephens failed to present any evidence of selective •
prosecution in pursuing an enhanced sentence. Dissent: o McCleskey is NOT controlling precedent but Batson is. Statute DOES violate 14th Am. of constitution. o Would hold that prosecution required, when ∆ has made prima facie showing sufficient to raise an inference of unequal application of statute, to “demonstrate that permissibly racially neutral selection criteria and procedures have produced the monochromatic result.” Concurring opinion (Thompson): o Statistical information can inform, not explain. Can tell what has happened, but not why. However, only a true cynic can look at these stats and not be impressed that something is amiss. o The legislature enacted OCGA § 16-13-30(d) with expectation that unrepentant drug sellers would be imprisoned for life. That is not happening. o Statewide, approximately 15% of eligible offenders receive life sentence under OCGA § 16-13-30(d).

March 1: pp.328-348, Witherspoon v. Illinois (1968), Uttrecht v. Brown (2007) and notes, p.348. Witherspoon v. Illinois (1968)  • Issue: o Whether the ∆’s constitutional rights are violated when the court excuses for cause potential jurors who have expressed feelings against the DP? o State excluded jurors with conscientious scruples against the DP, and Court has to decide whether that exclusion violated the ∆’s rights and, if so, whether the exclusion affected only the penalty determination or the guilt determination as well? o Does the Constitution allow a state to execute a man pursuant to the verdict of a jury composed of people via this type of process (where eliminated for cause if they have scruples about the DP)? • Holding: o No and yes; will not create per se rule, but a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding venire persons for cause simply because they voiced a general objection to the DP or expressed scruples. o NOT prepared to create per se constitutional rule requiring the reversal of every conviction returned by jury selected as this one was. However, does NOT follow that ∆ entitled to no relief.  Jury had 2 responsibilities here – innocence or guilty AND imprisonment for life or death.  It has Not been shown that jury was biased with respect to guilt, but it is self-evident that in its role as arbiter of punishment to be imposed, this jury fell woefully short of that impartiality to which ∆


• •

entitled under 6th and 14th amendments. Jurors general views about capital punishment play inevitable role in this part. o State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.  Sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the DP or expressed conscientious or religious scruples against its infliction.  No ∆ can constitutionally be put to death at the hands of a tribunal so selected. Facts: o 47 people were eliminated under this statute in ∆’s trial. Only 5 of those that said under no circumstances would they give the DP. This eliminates those who oppose and those who have had conscientious scruples. o ∆ argues this type of jury is therefore biased in favor of conviction because kind of juror who would not be bothered by the prospect of sending a man to his death is the kin of juror would who too readily ignore the presumption of the ∆’s innocence, accept prosecution’s verdict of facts, and return guilty verdict. Rules: o Illinois arms the prosecution with unlimited challenges in order to exclude those jurors who “might hesitate to return a verdict inflicting death.” Reasoning: o A man who opposes the DP, no less than one who favors it, can make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. This jury cannot speak for the community where less than half the people in US believe in DP… o When it swept from the jury all who expressed conscientious or religious scruples against capital punishment, and all who oppose it in principle, the state crosses the line of neutrality. State produced a jury uncommonly willing to condemn a man to die. o Footnote 21 - fn 21: Just as venire men cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would, in fact, vote for the extreme penalty in the case before him.  The most that can be demanded of a venire man in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.  If the voir dire testimony in a given case indicates that venire men were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the


relevant jurisdiction would appear to support only a narrower ground of exclusion. • (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or • (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.  Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case. Separate opinion (Douglas) – o Right to a jury drawn from a fair cross-section of the community requires the inclusion of people who are so opposed to capital punishment that they would never inflict it in a ∆. Black, with Harlan and White (dissenting) – o Statute was designed to insure an impartial jury by excluding people who are biased as to one of critical issues in the case.

Uttecht v. Brown (2007)  • Issue: o Did the US Court of Appeals for the 9th Circuit fail to give proper deference to a trial judge’s dismissal of a juror on the grounds that he could not carry out the duties of a juror in a capital sentencing case? • Holding (5-4): o Yes, court did err. o Appellate courts “owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror.” Trial court is appropriate because it is in a position to assess the demeanor of the venire and the individuals who compose it.  The substance of the potential juror’s comments had indicated confusion over the proper application of the state’s DP, so the trial court had acted reasonably when it found the juror was substantially impaired and excused him.  The Court held that the trial judge was especially entitled to deference before the trial judge, unlike appellate judges, has access to contextual information that is not reflected in the transcript of the jury selection questioning…although the defense counsel vigorously objected to other juror dismissals, he originally made no objection to the dismissal of the juror at issue in the subsequent appeal. o Court limits its holding – the need to defer to the trial court’s ability to perceive juror’s demeanor does not foreclose the possibility that a reviewing court may reverse the trial court’s decision where the record discloses no basis for finding of substantial impairment.



o Court elaborating on Witherspoon. o State excluded for cause 47 of 96 jurors without significant examination of
the individual prospective jurors. Rules:

o Precedential cases discussed by Court. o Wainwright v. Witt (happened after Witherspoon in 85)  tried to
elaborate by saying it was important to look at it in context of those facts. Rejects strict standard of Witherspoon’s footnote 21 and recognized that the diminished discretion now given to capital jurors and the state’s interest in administering its capital punishment scheme called for a different standard.  Whether the jurors views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Also, accord deference to Trial Court. When ambiguity in jurors’ statements , the trial court is allowed to resolve it in favor of the state. Juror gives ambiguous answer and w/o further questioning can be struck. The Court further held that a federal habeas court reviewing the decision to remove must defer to the trial judge's ability to observe the juror's demeanor and credibility, and apply the statutory presumption of correctness to the judge's implicit factual determination of the juror's substantial impairment. o Wainwright’s 4 principles of relevance –  1) A criminal ∆ has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause.  2) The state has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes.  3) To balance these interests, a juror who is substantially impaired in his or her ability to impose the DP under the state-law framework, can be excused for cause. But if the juror is not substantially impaired, removal for cause is impermissible.  4) In determining whether the removal of a potential juror would vindicate the State’s interest without violating the ∆’s right, the trial court makes a judgment based in part on the demeanor the juror, a judgment owed deference by reviewing court. Reasoning: o Procedural matters –  To preserve a Witherspoon claim, for fed habeas review there is no independent federal requirement that a ∆ in state court object to the prosecution’s challenge, state procedural rules govern. But by failing to object, the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct error.  Deprived reviewing courts of further factual findings that could have explained trial court’s decision.


Notes – o Effect of improper exclusion –  SC has reaffirmed the principle that the improper exclusion of a prospective juror under Witherspoon/Witt is reversible per se even if the prosecution had unused peremptory challenges. Some justices argue for a reversal of Witherspoon (p.348).

Capital Punishment March 3 – March 31 Jury Selection Issues – March 3: Lockhart v. McCree, pp.348-358 Lockhart v. McCree (1986)  • Facts of the case: o McCree charged with capital felony murder. o During voir dire at trial, trial judge (over McCree’s objections) removed for cause three prospective jurors who stated that they could not under any circumstances vote for the imposition of the death penalty. 8 prospective jurors removed for this reason. • Issue (left open from Witherspoon): o Does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial? o ∆ claimed that “death qualification” violated his right under the 6 th and 14th Amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community.  Witherspoon-excludables = jurors with opposition to the death penalty who may be excused. o ∆ making “fair-cross section” claim and due process claim. • Holding (delivered by Rehnquist): o It does not. o Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. o Constitution does not prohibit the States from “death qualifying” juries in capital cases. • Important Reasoning: o No requirement that juries must actually mirror community and reflect various distinctive groups of population. o Exclusion of Witherspoon-excludables would not constitute exclusion of a “distinctive group” for fair-cross section purposes.


 Exclusion of women or African Americans is unconstitutional, but a
group defined by attitudes is not a protected group.

o An impartial jury consists of nothing more than “jurors who will conscientiously
apply the law and find the facts.  Idea that State may want death qualified jury for guilt/innocence phase because predisposed to finding guilt. o Removal of cause of Witherspoon-excludables serves State’s proper interest in obtaining a single jury that could impartially decide issues in this case. o Here, dealing with GUILT/INNOCENCE phase. Even if jurors in favor of DP, no sign that they couldn’t be impartial so within boundaries of impartiality and that’s all that’s required by constitution. Dissent (Marshall, with Brennan and Stevens): o ∆ presented overwhelming evidence that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve. o Court upholds practice which allows State special advantage in prosecutions. Gives prosecution license to empanel a jury especially likely to return guilty verdict. o Right to an impartial jury established in Witherspoon bars State from skewing composition of capital juries by excluding scrupled jurors who are able to find those facts without distortion or bias.

March 4: Mu’min v. Virginia & Textbook on “What do Jurors Understand?” (pp. 653658) Mu’min v. Virginia (1991)  • Facts: o Extensive pre-trial publicity. Guy convicted of murder, escaped work detail and kill someone. Stranger-on-stranger murder. o Inflammatory headlines on pre-trial articles. Also radio, television publicity… o ∆ made move to change venue, submitted 47 newspaper articles. These articles discussed:  prior criminal record, fact ∆ rejected for parole 6 times, accounts of prison infractions, his confession, that he was convicted for earlier murder, his sentence for this murder, the details about prior murder. o ∆ wanted to be able to ask potential jurors questions about what they’ve heard, though of this case. Judges allowed all these questions.  Court didn’t allow content-specific questions… • Issue: o Does ∆ have a right to have content-specific questions posed to potential jurors? • Rules: o Content-based questions not required by constitution. Trial court’s failure to ask questions must render trial fundamentally unfair. o Due process test – what’s fundamentally unfair? For whom? How?


Holding: o In a five to four decision, held that the Constitution does not require that potential jurors be asked questions regarding the content of pretrial publicity during the voir dire in every instance in which the potential jurors have indicated exposure to it. The Court acknowledged that content questioning is preferable in cases where pretrial publicity presents the risk of an unfair trial, but held that it is not constitutionally mandated in all circumstances. Reasoning: o Wouldn’t have been constitutional violation to allow content-based questions since no prohibition. This is in the realm of discretion, so deference to trial court’s findings of fact must be given. o Concern with fairness of process v. results. Trial must be fundamentally unfair in order for it to be an abuse of discretion…

“What do Jurors Understand?”  • Jury has historically served as voice of community in capital sentencing. Point of jury instructions is to explain the applicable law to these non-lawyers so they understand their task. • Study to evaluate how well jurors understand the instructions that are to guide them in their sentencing of a ∆ to death or life imprisonment. • Meaning of aggravation and mitigation: o Empirical research suggests that CA capital sentencing instructions do not adequately explain the basic concepts of aggravation and mitigation and there is confusion over whether a particular sentencing factor is to be considered aggravating or mitigating. o Least understood term was “extenuating.” Many jurors who served in capital trials between 1990 and 1994 didn’t understand scope of permissible aggravating and mitigating factors. • Procedural requirements and statutory formula for the penalty determination: o Jurors must understand procedural requirements for proving aggravating and mitigating factors as well as the statute’s formula for arriving at the appropriate sentence. o North Carolina study assessed jurors’ understanding of when, under the sentencing instruction, a ∆ was to be sentenced to life or death.  Roughly ¼ of jurors felt that death was mandatory when it was not and ½ failed to appreciate situations which mandated life. o South Carolina jurors confused about different burdens of proof applicable to aggravating factors and mitigating factors and requirement of unanimity. o Potential capital jurors in Illinois misunderstand the issue of unanimity and when the statute calls for a life sentence or death sentence. • Factors Contributing to Jurors’ Misunderstanding of Capital Sentencing Instructions. o 1) Instructions are long and boring. o 2) Instructions are not clearly and simply written but often use complex syntax, unfamiliar words, and multiple negatives.


o 3) Instructions do not highlight concepts that are new or unfamiliar, so jurors
are forced to rely on their own prior knowledge or assumptions which may not be accurate.  Capital sentencing instructions should be drafted so that legal terms and unfamiliar concepts are explained in clear, simple and accessible language. A Few Litigation Errors – Prosecution – March 8: Withholding Evidence of Innocence: pp.472-491, Kyles v. Whitley (1995) + notes following The Prosecutor – • Claims of denial of due process because of prosecutorial misconduct. Most prosecutorial misconduct claims concern either the prosecutor’s failure to disclose evidence to the defense prior to the trial or the prosecutor’s conduct during the trial. Brady v. Maryland (1963)  • State’s obligation to disclose evidence favorable to the defense. • The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Kyles v. Whitley (1995)  • Facts: o Evidence withheld concerning differences in witnesses’ identifications and descriptions of ∆. o Prosecution based a lot of its case on the statements of “Beanie,” an informant who assisted the government. • Issue: o Defendant’s claim is that prosecutor violated his obligation to disclose favorable evidence, and the Court has to decide whether the withheld evidence was material to the case. • Rules: o Established rule that state’s obligation under Brady to disclose evidence favorable to the defense turns on the cumulative effect of all such evidence suppressed by the government. o Defendant’s due process rights are violated where the prosecution fails to disclose favorable evidence which is material and that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” o Evaluating Materiality:  1) Materiality is evaluated as “reasonable probability of a different result.”


 2) One shows Brady violation by showing that the favorable
evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.  3) Once constitutional error has been found, no need for further harmless error review.  4) Materiality in terms of suppressed evidence considered collectively, not item by item. o Prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached.  Prosecutor has duty to learn of any favorable evidence known to others acting on government’s behalf, including the police. Holding: o Prosecutor remains responsible for gauging the effect of suppressed evidence regardless of any failure by the police to bring favorable evidence to the prosecutor’s attention. o The net effect of the evidence withheld by the State in this case raises reasonable probability that its disclosure would have produced a different result, so ∆ entitled to new trial. Reasoning: o Defense could’ve used the information about Beanie that wasn’t disclosed, namely the variations in his story in order to show his motive to implicate the ∆.  Disclosure of witness’ statements would’ve resulted in markedly weaker case for prosecution and markedly stronger one for defense. o Court takes a fact-specific backward look at the case. Looked at what actually happened at trial to determine whether the withheld evidence was exculpatory to the ∆ or impeaching of the witness.  Information about “Beanie” was impeaching, undermined the evidence given to the prosecution.  Defense could’ve called into question the entire investigation. o Confidence that the verdict would have been unaffected cannot survive when suppressed evidence would’ve entitled a jury to find that the eyewitnesses were not consistent in describing the killer, that 2/4 of the eyewitnesses testifying were unreliable, that the most damning physical evidence was subject to suspicion, that the investigation that produced it was insufficiently probing, and that the principal police witness was insufficiently informed or candid.  Significantly weaker case than the one heard by the jury. Dissent (Scalia): o Calls the majority’s test unprecedented. Argues that responsibility for factual accuracy doesn’t rest with the Supreme Court, but with the lower courts.  Seems to argue that finality is more important that reliability.


o When evaluating this case, finds that undisclosed evidence doesn’t create a
“reasonable probability of a different result.”  State presented massive core of evidence showing ∆ guilty of murder. o Rejects petitioner’s claim that Brady materials would have created a “residual doubt” sufficient to cause the sentencing jury to withhold capital punishment. March 10: Closing Argument: pp.491-501, Darden v. Wainwright (1986); Taking inconsistent positions against co-defendants, pp.501-505, Jacobs v. Scott (1995) Darden v. Wainwright (1986)  • Facts: o Habeas petition filed against Wainwright, the head of the Department of Corrections in Florida. o In closing argument, Prosecutor attempted to place some blame on Department of Corrections, because ∆ on furlough when crime occurred, some comments implied that DP would be only guarantee against similar future act, and others incorporated defense’s use of the word “animal.” Some other comments reflected emotional reaction to case. o Petitioner contends that the prosecution’s closing argument at the guiltinnocence stage of the trial rendered his conviction fundamentally unfair and deprived the sentencing determination of the reliability that the 8th Amendment requires. • Issue: o Whether prosecutors’ comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process?”  * Not enough that prosecutor’s remarks undesirable or even universally condemned • Rules: o In determining whether prosecutorial misconduct exists and if it is flagrant, look to factors including:  1) Likelihood remarks of the prosecution mislead the jury or prejudiced the jury toward the defendant;  2) Whether the remarks were isolated or extensive;  3) Whether the remarks were deliberately or accidentally made;  4) The total strength of the evidence against the defendant • Holding: o Prosecutor’s comments did not deprive petitioner of a fair trial. The prosecutors’ argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.  Much of the objectionable content was invited by or was responsive to the opening summation of the defense. • Reasoning:


o Trial court instructed jurors several times that decision to be based on
evidence alone. Weight of evidence against petitioner heavy. Defense counsel made tactical decision not to present any witness but ∆. Defense counsel able to use opportunity for rebuttal effectively. Dissent (Blackmun, with Brennan, Marshall, and Stevens): o 8th Amendment requires a heightened degree of reliability in case where State seeks DP. o Believes majority ignores standards governing professional responsibility of prosecutors in reaching conclusion that summations of prosecutors didn’t deprive ∆ of fair trial. o Scope of misconduct involved:  Lawyer shall not…state a personal opinion as the the credibility of a witness or the guilt or innocence of the accused.  Prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.  Prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury. o Cannot conclude prosecutor’s sustained assault on ∆’s very humanity didn’t affect jury’s ability to judge credibility question on the real evidence before it.

Jacobs v. Scott (1995)  • Holding: o Application for stay of execution of death sentence denied. • Dissent (Stevens, with Ginsburg): o Fundamentally unfair to go forward with execution of ∆. o At co-∆’s separate trial, State abandoned its theory that ∆ killed victim and used him as witness, vouching for his veracity.  Prosecutor stated that state had been wrong in taking position in ∆’s trial that ∆ had done actual killing. Now state believed co-∆ had done the killing. o If prosecutor’s statements at co-∆’s trial correct, then ∆ innocent of capital murder.  Prosecution has discretion and could’ve asked court to give new sentencing hearing based on “newly discovered evidence” from co∆’s case. o Fundamentally unfair to execute a person on the basis of a factual determination that the State has formally disavowed. o Due Process Violations:  Due process violation when a prosecutor fails to correct testimony he knows to be false.  To obtain a conviction by the use of testimony known by the prosecutor to be perjured offends due process.


o Stevens believes serious questions raised when sovereign takes
inconsistent positions in two separate criminal proceedings.  State itself has formally vouched for credibility of Jacobs’ recantation of his confession…

Notes (p.503-505): o Prosecutors’ use of inconsistent theories –  Prosecutors’ use of inconsistent factual theories in separate trials of co-∆s is not uncommon in capital cases.  Since Jacobs, a number of death-sentenced ∆s have sought to set aside their sentences on that basis, with mixed results: • Due process violation because prosecutor’s flip-flopping inherently unfair. • No due process violation because a prosecutor can make inconsistent arguments at the separate trials of codefendants without violating the due process clause. o Deterring prosecutorial misconduct –  Generally, prosecutor immune from civil suits for his or her misconduct.  Supreme Court has never suggested these governmental officials beyond the reach of criminal law. Even judges could be punished criminally for willful deprivation of constitutional rights. Prosecutor would fare no better for willful acts.

March 11: Chapter 4: The Requirement of an Individualized Penalty Determination pp. 199-213, Lockett v. Ohio and Eddings v. Oklahoma Chapter 4  The Requirement of an Individualized Penalty Determination

Woodson v. North Carolina and Roberts v. Louisiana: o Court held unconstitutional mandatory death penalty statutes because they failed “to allow the particularized consideration of relevant aspects of the character and records of each convicted defendants. o Defendant must be permitted to present mitigation evidence. “We believe in capital cases the fundamental respect for humanity underlying 8th Am. requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death.”

Lockett v. Ohio (1978)  • Facts: o ∆ was one of 4 defendants, didn’t fire shot that killed the victim. Lockett refused several plea deals from the government. o Ohio DP Statute: Judge must consider 3 mitigating circumstances, decide if they exist by preponderance of the evidence:  1) Victim induced or facilitated the offense


 2) Unlikely ∆ would’ve committed the offense but for the fact
she was under duress, coercion, or strong provocation

 3) Offense was “primarily product of psychosis or mental

o None of these mitigating circumstances applied here and ∆ got DP.

o Whether Ohio violated the 8th and 14th Amendments by sentencing
Lockett to death pursuant to a statute that narrowly limits the sentencer’s discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors? Rules:

o The Court had specifically rejected in McGautha v. California the
contention that discretion in imposing the DP violated the fundamental standards of fairness embodies in 14th Amendment due process. o To comply with Furman, sentencing procedures should not create a “substantial risk that the DP will be inflicted in an arbitrary and capricious manner.” o Woodson –  In capital cases the fundamental respect for humanity underlying the 8th Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death. • Rests of the predicate that the penalty of death is quantitatively different… Holding: o 8th and 14th Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. o Ohio death penalty statute does not permit the type of individualized consideration of mitigating factors held to be required by 8 th and 14th Amendments in capital cases. Reasoning: o Individualized decision is essential in capital cases. * Huge shift in DP practice and litigation. Now extensive use of investigative issues into ∆’s background…

• •

Eddings v. Oklahoma (1982)  • Facts: o ∆ shot and killed police officer. Juvenile when committed crime, but tried as an adult. o Oklahoma DP Statute:


 In the sentencing proceeding, evidence may be presented as to any
mitigating circumstances or as to any of the aggravating circumstances enumerated in this act.  Statute lists 7 separate aggravating circumstances; the statute nowhere defines what is meant by “any mitigating circumstances.” o Court, in following the law, stated that it could consider the ∆’s youth, but NOT his violent background as mitigating evidence. Issue: o Is the trial judge, as a matter of law, required to consider any mitigating factors put forth by the ∆, in particular the circumstances of the ∆’s unhappy upbringing and emotional disturbances? Rules: o Lockett – By requiring sentencer be permitted to focus on “characteristics of the person who committed the crime,” rule recognizes that “justice requires that there be taken into account the circumstances of the offense together with the character and propensity of the offender. o State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. Holding: o Because the sentence was imposed without “the type of individualized consideration of mitigating factors… required by the 8th and 14th Amendments in capital cases,” the Court reversed ∆’s sentence of death. Reasoning: o Trial judge didn’t evaluate evidence in mitigation by not considering ∆’s violent background (family history). Judge found that as matter of law, unable to even consider the evidence. o Appears that Court only considered evidence to be mitigating that would support a legal excuse from criminal liability. o Limitations placed by courts upon mitigating evidence they would consider violated the rule in Lockett. o Just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful ∆ be duly considered in sentencing. Dissent (Burger, with White, Blackmun and Rehnquist): o 1. Certiorari granted only to consider whether 8th and 14th amendments prohibit imposition of DP on offender who was 16 years old at time o 2. OK statute, in contrast to Ohio statute at issue in Lockett, expressly permitted consideration of ANY mitigating circumstance; and o 3. Record didn’t show trial court or app court failed to consider ∆’s mitigating evidence but suggested both courts may have concluded mitigating didn’t offset aggravating. Notes (p.212): o Subsequent cases in the Supreme Court:


 Skipper v. South Carolina  ∆ challenged Court’s exclusion of
testimony of 2 jailers and a visitor during pre-trial detention. Court ruled that although testimony wouldn’t relate to ∆’s culpability for crime he’d committed, evidence would be mitigating in sense that it might serve for basis for sentence less than death.  Hitchcock v. Dugger  Unanimous court held that Florida’s limitation of mitigating to statutory factors and the trial judge’s refusal to consider nonstatutory mitigating factors (such as possible damage to ∆ from habit as child of inhaling gas fumes, upbringing as one of 7 children in poor family, and fond and affectionate relationship with brother’s children) ran afoul of Lockett and Eddings. March 22: pp.213-220, Smith v. Texas and notes Smith v. Texas (2004)  • Facts: o Before the jury reached its sentence, trial judge issued “supplemental nullification instruction.” Instruction directed jury to give effect to mitigation evidence, but allowed jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness. o Supplemental nullification instruction:  In answering Special issues (deliberateness and future dangerousness), if juror believes State has proved beyond a reasonable doubt that answers to Special Issues are “yes” and believe from mitigating evidence, if any, that ∆ should not be sentenced to death, then juror shall answer at least one of Special Issues “NO” in order to give effect to belief that DP should not be imposed due to mitigating evidence presented. o At penalty phase, jury instructed on 2 special issues: 1) whether killing was deliberate and 2) whether defendant posed continuing danger to others. o Just as in Penry, ∆ sentenced pursuant to supplemental instruction provided to jury by trial judge. o Jury verdict form made no mention of nullification. Nor did it say anything about mitigation evidence. Instead, verdict form asked whether ∆ committed act deliberately and whether he would commit criminal acts of violence that would constitute continuing threat to society. Jury allowed to give “yes or no” answers only. Jury answered both yes and sentenced petitioner to death. • Issue: o Court looking at constitutionality of Texas DP statute for first time since Jurek, where the TX statute was upheld in 1976. o Court evaluating constitutional sufficiency of supplemental nullification instruction for jury to consider mitigation evidence. • Rules: o In Penry v. Johnson, Court held a similar nullification instruction constitutionally inadequate because it did not allow jury to give “full


consideration and full effect to mitigating circumstances” in choosing ∆’s appropriate sentence. o Key under Penry is that jury be able to consider and give effect to ∆’s mitigation evidence in imposing sentence. Supplemental instruction employed by TX courts didn’t provide jury with adequate vehicle for expressing a “reasoned moral response” to ALL the evidence relevant to ∆’s culpability. Holding: o Nullification instruction was constitutionally inadequate under Penry II. o Court rejects 5th Circuit’s “threshold test.” Mitigation evidence does NOT need to be tied to culpability of this particular criminal act. Mitigation evidence has a low threshold, since evidence must tend to logically prove or disprove some fact or circumstances which a fact-finder could reasonably deem to have mitigating value. Reasoning: o This case is sufficiently similar to Penry. It would’ve been logically and ethically impossible for juror to follow both sets of instructions. Jurors who want to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a “true verdict.”  With the instruction, if the jurors found mitigating evidence, juror should find one of the special issues to be ‘no’ even if otherwise would believe the answer to be yes. o Mechanism created by the supplemental instruction thus inserted element of capriciousness into sentencing decision. o Just as in Penry, ∆’s jury required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. o No principled distinction, for 8th Amendment purposes, between instruction given here to ∆’s jury and that given in Penry. Notes (p.219): New Texas Capital Sentencing Statute o In 1991 TX legislature revised capital sentencing statute to eliminate issue in Smith. Under amended law, after presentation of evidence, the jury must decide 2 special issues:  1) whether there is a probability that the ∆ would commit criminal acts of violence that would constitute a continuing threat to society; and  2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the ∆ guilty [as a principle or accomplice], whether the ∆ actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. o Court must inform jury that in deliberating these special issues, “it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the ∆’s background or character or the circumstances of the offense that militates for or mitigates against


the imposition of the DP.” If the jury returns a unanimous affirmative finding as to each of the special issues, then the jury is instructed to answer the following issue:  Whether, taking into consideration all of the evidence, including the circumstances of the offense, the ∆’s character and background, and the moral culpability of the ∆, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. March 24: pp.220-239, Kansas v. Marsh and the Scalia and Stevens discussion from Walton v. Arizona, in which Scalia pronounces that he will no longer follow the Woodson-Lockett line of cases. Kansas v. Marsh (2006)  • Facts: o Jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. o ∆ argues Kansas statute establishes an unconstitutional presumption in favor of death because it directs imposition of the DP when aggravating and mitigating circumstances are in equipoise. • Issue: o Whether the Kansas statute, which requires the imposition of the DP when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution? • Rules: o As a requirement of individualized sentencing, a jury must have the opportunity to consider all evidence relevant to mitigation, and that a state statute that permits a jury to consider any mitigating evidence comports with that requirement. o States are free to determine the manner in which a jury may consider mitigating evidence.  Court has never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceedings is constitutionally required.  States enjoy a “constitutionally permissible range of discretion in imposing the DP.” o State capital sentencing system must:  1) rationally narrow the class of death-eligible defendants; and  2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible ∆’s records, personal characteristics, and the circumstances of the crime. o So long as a state system satisfies these requirements, precedents establish that a State enjoys a range of discretion in imposing the DP, including the manner in which aggravating and mitigating circumstances are to be weighed. • Holding: o The Kansas statute is NOT facially unconstitutional.


Reasoning: o Kansas statute satisfies constitutional mandates of Furman and its progeny because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not interfere, in a constitutionally significant way, with a jury’s ability to give independent weight to evidence offered in mitigation. o Kansas’ weighing equation merely channels a jury’s discretion by providing it with criteria by which it may determine whether a sentence of life or death is appropriate. o Statute does not create a general presumption in favor of the DP in Kansas. System dominated by presumption that life imprisonment is appropriate sentence for capital conviction. o State has burden of demonstrating mitigating evidence doesn’t outweigh aggravating evidence, not vice versa. Determination that evidence is in equipoise is a decision FOR – not a presumption in favor of – death. Finding that factors are in balance is a decision that death is the appropriate sentence. Dissent (Souter, with Stevens, Ginsburg, and Breyer): o “In Kansas, when a jury applies the State’s own standards of relative culpability and cannot decide that a defendant is among the most culpable, the state law says that equivocal evidence is good enough and the defendant must die. A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the court’s holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States.” o State’s provision for a tie breaker in favor of death fails because the dispositive fact is not the details of the crime or the unique identity of the individual ∆. Determining fact is not directly linked to particular crime or particular criminal at all. Tie breaker doesn’t identify worst of the worst, even though DP should be reserved for those offenders. o Mandates death in what the court id’s as “doubtful cases.”

Walton v. Arizona (1990)  • Holding: o In 5-4 decision, Court upheld AZ’s capital sentencing scheme, which leaves to the judge the determination of the existence of aggravating or mitigating circumstances and the decision as to the penalty, and the Court rejected the defendant’s challenge to the “especially heinous, cruel or depraved” aggravating circumstance. • Scalia (concurring in part and concurring in judgment): o Would toss out Woodson and Lockett because of inconsistencies. Woodson and Lockett are rationally irreconcilable with Furman. o Believes Lockett rule represents a sheer “about-face” from Furman, an outright negation of the principle of guided discretion that brought the


Court down the path of regulating capital sentencing procedure in the first place. o Woodson-Lockett principle has prevented States from imposing all but the most minimal constraints on the sentencer’s discretion to decide that an offender eligible for the DP should nonetheless not receive it.  Repeatedly over past 20 years state legislatures and courts have adopted discretion-reducing procedures to satisfy Furman principle, only to be told years later that their measures have run afoul of Lockett principle. o Contradiction and tension between requiring the states “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance” (Godfrey v. GA) and saying that “the State cannot channel the sentencer’s discretion…to consider any relevant mitigating information offered by the defendant (McCleskey v. Kemp) that sentencer must enjoy unconstrained discretion to decide whether any sympathetic factors bearing on the defendant or the crime indicate that he does not “deserve to be sentenced to death” (Penry v. Lynaugh). Latter requirement destroys whatever rationality and predictability former requirement designed to achieve. o Willing to adhere to the precedent established by Furman line of cases, and to hold that when a State adopts capital punishment for a given crime but does not make it mandatory, the 8th Amendment bars it from giving the sentencer unfettered discretion to select the recipients, but requires it to establish in advance, and convey to the sentencer, a governing standard.  Sentence can’t be imposed arbitrarily or would violate 8th Amendment. Must be some rule/guide to prevent arbitrariness, perhaps including limits on sentencer’s discretion. Otherwise, Furman would have to be rejected entirely… Stevens (dissenting): o Rules that are required for purposes of narrowing eligibility (who is eligible for the DP at all) can be done rationally and are required constitutionally. These rules are NOT in conflict with the principle of individualized sentencing since that occurs at a different stage. o Scalia ignores the difference between the base of the pyramid and its apex. A rule that forbids unguided discretion at the base is completely consistent with one that requires discretion at the apex. After narrowing the class of cases to those at the tip of the pyramid, it is then appropriate to allow the sentencer discretion to show mercy based on individual mitigating circumstances in the cases that remain. Note (p.239): Justice Stevens’ understanding confirmed: o In Tuilaepa v. CA (1994), majority of court confirmed Stevens’ understanding that there are 2 steps involved in penalty determination – the eligibility determination and the selection determination – each serves different constitutional purpose.  The eligibility determination, where the prosecution typically must prove an aggravating circumstance, satisfied the Furman concern by narrowing the eligible class.


 The selection decision, where the sentencer may be given
“unbridled discretion” in making its penalty choice, satisfied the Woodson/Lockett concern for an individualized determination. March 25: Chapter 5: Proportionality; pp. 240-258, Coker v. Georgia, Tison v. Arizona and Notes. Chapter 5  The Requirement of Proportionality Intro – • After holding in Gregg v. Georgia that the DP was not, in all cases, a disproportionate punishment for murder, the Court has addressed a number of proportionality challenges to particular applications of the DP. • Coker v. Georgia: o Court decides he DP for rape of an adult woman violates the 8 th Amendment. • Enmund v. Florida: o Court held that execution of a “getaway driver” who had no direct involvement in the killing but was only guilty of murder on a felony-murder theory violated the 8th Amendment. • Tison v. Arizona: o The Court delineates when the DP constitutionally may be applied to a felon who has not intended to kill. • Atkins v. Virginia: o Court revisits Penry v. Lynaugh, where Court held that 8th Amendment didn’t prohibit execution of ∆ who was mentally retarded. • Roper v. Simmons: o Court revisited Stanford v. Kentucky, where Court held 8th Amendment didn’t prohibit execution of defendant who was juvenile at the time of the offense. • Kennedy v. Louisiana: o Concerns ∆ sentenced to death for rape of child under 12 and is Court’s most recent proportionality case. Coker v. Georgia (1977)  • Facts: o Georgia statute provided that “a person convicted of rape shall be punished by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years.” Punishment is determined by a jury in a separate sentencing proceeding in which at least one of the statutory aggravating circumstances must be found before the DP may be imposed. o ∆ convicted of rape and sentenced to death. Both upheld by GA Supreme Court. • Issue:


o Does the punishment of death for rape violate the 8th Amendment, which •
proscribes “cruel and unusual punishments” and which must be observed by the States as well as the Federal Government? Rules:

o For rapist to be executed in GA, it must therefore be found that not only
did he commit rape but also one or more of the aggravating circumstances were present:  1) that rape was committed by person with prior record of conviction for capital felony;  2) that rape was committed while offender was engaged in commission of another capital felony, or aggravated battery; or  3) the rape was outrageously or wantonly vile, horrible or inhuman that it involved torture, depravity of mind, or aggravated battery to the victim. Holding: o Sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the 8 th Amendment as cruel and unusual punishment. o Death sentence imposed on Coker is disproportionate punishment for rape. Reasoning: o 1) Evolving Standards of Decency  Court looks to history and objective evidence of country’s present judgment concerning acceptability of death as penalty for rape of an adult woman in making their decision.  Court wants “reliable objective index of contemporary values.” Take temperature of society, what states have done/are doing.  At no time in last 50 years have majority of States authorized death as punishment for rape.  GA is sole jurisdiction in US at present time that authorizes a sentence of death when the rape victim is an adult woman, and only 2 other jurisdictions provide capital punishment when victim is child.  Current judgment with respect to DP for rape is not wholly unanimous among state legislatures, but obviously weighs heavily on side of rejecting capital punishment as a suitable penalty for raping an adult woman. o 2) Also observed in Gregg that jury is significant and reliable objective index of contemporary values because it is so directly involved and it is thus important to look to sentencing decisions juries have made in assessing whether capital punishment is an appropriate penalty for the crimes being tried.  In the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence.  5 convicted rapists now under sentence of death in GA. GA juries have thus sentenced rapists to death 6 times since 1973. o 3) Look to Court’s own judgment on acceptability of DP under 8th Amendment for rape of adult woman.


 Legislative rejection of capital punishment for rape confirms Court’s
own judgment.

 Court doesn’t discount seriousness of rape as crime, but in terms of
moral depravity and injury to person and public, it does not compare with murder.  Abiding conviction DP which is “unique in its severity and irrevocability” is an excessive penalty for the rapist who doesn’t take human life.

Notes (p.246): Rape and the DP o Court’s decision in Coker doesn’t mention race, yet decision issued against background of extreme racial discrimination in use of DP in rape cases. o From 1930 until Furman decision, 455 men were executed for rape in US, and almost 90% of those were black.

Tison v. Arizona (1987)  • Facts: o 3 Tison brothers helped their father and another inmate escape jail. During escape, father and inmate murdered 4 captives. o State individually tried each of the ∆s for capital murder of 4 victims as well as for associated crimes of armed robbery, kidnapping, and car theft. o AZ felony-murder law provided that a killing occurring during the perpetration of robbery or kidnapping is capital murder and that each participant is legally responsible for acts of accomplices. AZ law provided for capital sentencing proceeding; 3 aggravating and 3 non-statutory mitigating factors found. o 2 of the petitioners sentenced to death… • Issue: o Whether the petitioner’s participation in the events leading up to and following the murder of four members of a family makes the sentences of death imposed by the AZ courts constitutionally permissible although neither petitioner specifically intended to kill the victims and neither inflicted the fatal gunshot wounds? o Bigger issue - Whether the 8th Amendment prohibits the DP in the case of a ∆ whose participation is major and whose mental state is one of reckless indifference to the value of human life?  Whether the 8th Amendment proportionality requirement bars the DP under these circumstances? • Rules: o Enmund v. Florida  Court reversed death sentence of ∆ convicted under Florida’s felony-murder rule. Court, citing the weight of legislative and community opinion, found a broad societal consensus, with which it agreed, that the DP was disproportional to the crime of robbery-felony murder “in these circumstances.” o Court surveyed States’ felony-murder statutes, the behavior of juries in cases like Enmund’s to assess American attitudes toward capital


punishment in felony-murder cases, and conducted its own proportionality analysis. o Court found Enmund’s degree of participation in murders so tangential it couldn’t justify a sentence of death. Neither the deterrent or retributive purposes of the DP were further by imposing it on Enmund.  Since Enmund’s participation in felony murder was so attenuated and since there was no proof that Enmund had any culpable mental state, the DP was excessive retribution for his crimes. Holding: o AZ Supreme Court applied an erroneous standard in making the findings required by Enmund v. Florida. o Only a small minority of jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and Court doesn’t find that minority position constitutionally required. o Hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. o AZ courts found major participation, so Court remands for it to determine whether there was reckless indifference to human life. Reasoning: o Clear that petitioners fall outside the category of felony murderers for whom Enmund explicitly held the DP disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life. o Evaluate like Enmund court:  State legislatures’ judgment as to proportionality in these circumstances. Substantial and recent legislative authorization of the DP for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the DP as grossly excessive under these circumstances. o A narrow focus on the question of whether or not a given ∆ intended to kill is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Dissent (Brennan, with Marshall and Blackmun and Stevens): o Argue that facts were not sufficient to support Court’s conclusion that petitioners acted with reckless disregard to human life. o Basic flaw in Court’s decision is Court’s failure to conduct the sort of proportionality analysis that Constitution and past cases require.  Court must demonstrate that major participation in a felony with a state of mind of reckless indifference to human life deserves the same punishment as intending to commit a murder or actually committing a murder. o Because a ∆ that acts with reckless indifference to human life has not chosen to kill, his moral and criminal culpability is of a different degree than that of one who killed or intended to kill.


o Disputes Court’s finding that majority of American jurisdictions have
authorized capital punishment in cases like this.  Court excludes jurisdictions that have abolished DP and those that authorize it in circumstances different from these.  Believes Court’s view actually in minority position… o Court’s objective evidence that statutes of roughly 20 states appear to authorize DP for ∆s in the Court’s new category is inadequate substitute for proper proportionality analysis, and is not persuasive evidence that punishment that was unconstitutional for Enmund is constitutional for Tisons. March 29: Proportionality: Defendant characteristics. pp. 258-291, Atkins v. Virginia (mental retardation), Roper v. Simmons (youths age 17 and under). Atkins v. Virginia (2002)  • Facts: o Mentally retarded man sentenced to death. Challenges his sentence on 8 th Amendment grounds. • Issue: o Whether the execution of mentally retarded criminals is “cruel and unusual punishment” prohibited by the 8th Amendment? • Rules: o Court’s review of claims that a punishment is excessive under the 8 th Amendment – 8th Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. o Evolving standards of decency must be informed by objective factors to the maximum possible extent. o Clearest and most reliable objective evidence of contemporary values is the legislation. Court’s own judgment will also be brought to bear. • Holding: o Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, mentally retarded individuals do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. o Such punishment is excessive and the Constitution places a “substantive restriction on the State’s power to take the life of a mentally retarded offender.” • Reasoning: o Judgment of legislatures that have addressed the suitability of imposing the DP on the mentally retarded:  It is not so much the number of states that is significant, but the consistency of the direction of change.  Powerful evidence that today society views mentally retarded offenders as categorically less culpable than the average criminal.


 Legislatures that have addressed the issue have voted
overwhelmingly in favor of prohibition. Even in states that allow it, practice is uncommon. o Serious question as to whether either justification for DP, deterrence and retribution, can serve as basis for DP applied to mentally retarded offenders.  Pursuant to narrowing jurisprudence, which seeks to ensure that only the most deserving of executions are put to death, an exclusion for mentally retarded is appropriate. o Risk that DP will be imposed in spite of factors which may call for less severe penalty enhanced. Lesser ability of mentally retarded to make persuasive showing of mitigation. Less able to give meaningful assistance to counsel. Special risk of wrongful execution… Dissent (Rehnquist and Scalia and Thomas): o Reject majority’s reliance on “foreign laws, the views of professional and religious organizations, and opinion polls” to determine “contemporary values.” o In my view, these 2 sources- the work product of legislatures and sentencing jury determinations- ought to be the sole indicators by which courts ascertain the contemporary American conceptions of decency for purposes of the 8th Amendment. They are the only objective indicia of contemporary values firmly supported by our precedents. More importantly, however, they can be reconciled with the undeniable precepts that the democratic branches of government and individual sentencing juries are, by design, better suited than courts to evaluating and giving effect to the complex societal and moral considerations that inform the selection of publicly acceptable criminal punishments. Dissent (Scalia, with Chief Justice and Thomas): o No support in text or history of 8th Amendment for Court’s decision; does not even have support in current social attitudes regarding conditions that render an otherwise just DP inappropriate.  Believes Court’s decision rests solely on personal views of justices… o Only 18 states with DP have legislation preventing ALL executions of mentally retarded – Scalia doesn’t think this is sufficient consensus on standards of decency. Doesn’t think agreements among 47% of DP jurisdictions amounts to “consensus.” o Court ignores that legislation in 18 states it looks to are still in infancy. Don’t know whether laws sensible in long term. o In what direction can change occur than in this one? Court’s reliance on “direction of change, not so much number of states” is feeble.  Reliance upon trends is perilous basis for constitutional adjudication. o Court’s most feeble effort is reliance on professional and religious organizations, members of “world community” and respondents to opinion polls. o Dealing with deterrence and retribution:  Culpability, and deservedness of retribution, depends not merely upon mental capacity of ∆, but also on depravity of crime.


 “The fact that juries continue to sentence mentally retarded
offenders to death for extreme crimes shows that society’s moral outrage sometimes demands execution of retarded offenders.” Roper v. Simmons (2005)  • Facts: o At age of 17, Simmons committed murder. After he had turned 18, tried and sentenced to death. o Simmons planned the murder, proposing that they tie up victim and throw him off bridge, thinking he’d get away with it because “minor.” Later bragged about killing… o Trial judge directed jurors that they could consider ∆’s age as mitigating factor. • Issue: o Whether it is permissible, under the 8th and 14th Amendments to the Constitution to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime. o In Stanford v. Kentucky (1989), Court rejected proposition that Constitution bars capital punishment for juvenile offenders in this age group. Court now reconsiders the question… • Rules: o After proceedings in Simmons’ case had run their course, Court held that 8th and 14th Amendments prohibit the execution of a mentally retarded person (Atkins v. Virginia). • Holding: o By a vote of 5-4, the U.S. Supreme Court on March 1, 2005 held that the Eighth and Fourteenth Amendments forbid the execution of offenders who were under the age of 18 when their crimes were committed. • Reasoning: o The Court reaffirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. The Court reasoned that the rejection of the juvenile death penalty in the majority of states, the infrequent use of the punishment even where it remains on the books, and the consistent trend toward abolition of the juvenile death penalty demonstrated a national consensus against the practice. The Court determined that today our society views juveniles as categorically less culpable than the average criminal. o The Court outlined the similarities between its analysis of the constitutionality of executing juvenile offenders and the constitutionality of executing the mentally retarded. o Before this historic ruling, the Court concluded in 1989 in Stanford v. Kentucky, 492 U.S. 361 (1989), that the execution of 16- and 17-year-old offenders was not constitutionally barred. The Court now concludes that since Stanford, a national consensus has formed against the execution of juvenile offenders, and the practice violates society’s “evolving standards


• 70

of decency.” The Court overruled its decision in Stanford, thereby setting the minimum age for eligibility for the death penalty at 18. o The Court explained that the primary criterion for determining whether a particular punishment violates society’s evolving standards of decency is objective evidence of a national consensus as expressed by legislative enactments and jury practices. The majority opinion found significant that 30 states prohibit the juvenile death penalty, including 12 that have rejected the death penalty altogether.  The Court further noted that juries sentenced juvenile offenders to death only in rare cases and the execution of juveniles is infrequent. The Court found a consistent trend toward abolition of the practice of executing juveniles and ruled that the impropriety of executing juveniles has gained wide recognition. o In addition to considering evidence of a national consensus as expressed by legislative enactments and jury practices, the court recognized that it must also apply its own independent judgment in determining whether a particular punishment is disproportionately severe. When ruling that juvenile offenders cannot with reliability be classified as among the worst offenders, the Court found significant that juveniles are vulnerable to influence, and susceptible to immature and irresponsible behavior. In light of juveniles’ diminished culpability, neither retribution nor deterrence provides adequate justification for imposing the death penalty. o The Court further noted that that the execution of juvenile offenders violated several international treaties. Concurring Opinion (Stevens and Ginsburg): o Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court’s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. o The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. Dissent (O’Connor): o O’Connor agreed that objective evidence presented in Simmons was similar to that presented in Atkins, but while there was no support for the practice of executing the mentally retarded, at least eight states had considered and adopted legislation permitting the execution of 16- and 17year-old offenders. O’Connor argued that the difference in maturity between adults and juveniles was neither universal nor significant enough to justify a rule excluding juveniles from the death penalty. Justice O’Connor did recognize the relevance of international law, and expressly rejected Justice Scalia’s contention that international law has no place in evaluating Eighth Amendment claims. Dissent (Scalia, with Thomas and Rehnquist):

o Arguing that the Court improperly substituted its own judgment for that of
the people in outlawing executions of juvenile offenders. He criticized the majority for counting non-death penalty states toward a national consensus against juvenile executions. Scalia also rejected the Court’s use of international law to confirm its finding of a national consensus March 31: Proportionality: Nature of the Offense. pp.291-313, Kennedy v. Louisiana (2008) (victim did not die – the DP for crimes other than murder, here – child molestation). Kennedy v. Louisana (2008) 



o Aggravated rape by ∆ of his 8-year old stepdaughter. Convicted and
sentenced to death under state statute authorizing capital punishment for rape of child under 12 years of age. Issue:

o Whether the Constitution bars respondent from imposing the DP for the
rape of a child where the crime did not result, and was not intended to result, in death of the victim? Rules:

o 8th Amendment provides that cruel and unusual punishments shall not be
inflicted. Flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. o Punishment is justified under one of 3 principal rationales: rehabilitation, deterrence, and retribution. Capital punishment must thus be limited to those offenders who commit a narrow category of the most serious crimes, and whose extreme culpability makes them the most deserving of execution. o Executions of juveniles and mentally retarded persons are punishments violative of the 8th Amendment because the offender had a diminished personal responsibility for the crime. DP cannot be disproportionate to the crime itself (Tison v. Arizona). o Court has been guided by objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions. Holding: o 8th Amendment prohibits the DP for this offense. The Louisiana statute is unconstitutional. o Death sentence for one who raped but did not kill a child and who did not intend to assist another in killing the child is unconstitutional under the 8 th and 14th Amendments. Reasoning: o Court looks to history of DP for crime of rape. Only 6 states have similar statute as Louisiana. Evidence of a national consensus with respect to the DP for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. o No individual has been executed for the rape of an adult or child since 1964.  After reviewing contemporary norms, including the history of the DP for this and other nonhomicide crimes, current state statutes and new enactments, and number of excutions since 1964, conclude there is a national consensus against capital punishment for crime of child rape. o Court employs own moral grounds. Acknowledges seriousness and moral outrage over sexual assault on child. Still believe capital punishment is disproportionate penalty for crimes.


 DP should not be expanded to instances where victim’s life not

 Incongruity between crime of child rape and harshness of DP poses
risk of overpunishment.  Goal of retribution doesn’t justify harshness of DP. o Reliability in guilt/innocence determination problems:  Evidentiary and trial problems – moral choice forced on child on whether to seek DP. Also problems of unreliable, induced and imagined child testimony = special risk of wrongful execution.  Similar criticism pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed.  And the question in a capital case is not just the fact of the crime, including, say, proof of rape as distinct from abuse short of rape, but details bearing upon brutality… o Deterrence not met, since where punishment death, may remove incentive for rapist not to kill victim. o Serious negative consequences of making child rape a capital offense… o There are higher numbers of child rape than murder, so the potential for the DP to be opened up to an increased number of impositions.  Would be inverted relationship in the seriousness of the crime v. frequency of executions. Dissent (Alito, with Chief, Scalia and Thomas): o Court holds that 8th Amendment categorically rules out DP in even most extreme cases of child rape even though:  1) holding not supported by original meaning of 8th amendment  2) neither Coker nor any prior precedent commands this result  3) there are no reliable “objective indicia” of a national consensus  4) sustaining the constitutionality of the state law before us would not “extend” or “expand” the DP  5) the Court has previously rejected the proposition that the 8 th Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems  6) the worst child rapists exhibit the epitome of moral depravity; and  7) child rape inflicts grievous injury on victims and on society in general. o Party attacking the constitutionality of a state statute bears the “heavy burden” of establishing that the law is unconstitutional. Burden has not been discharged here… would affirm the decision of Lousiana… Notes (p.313): Federal Death Penalty o Federal DP restored post-Furman with enactment of Anti-Drug Act of 1988 and the Violent Crime Control and Law Enforcement Act of 1994.


o Fed law now authorizes the DP for a wide range of homicides, including a
number of categories of unintentional killings.

o Fed law authorizes DP for 4 categories of non-homicidal crimes:  Treason, espionage, drug trafficking in large amounts, and
attempted murder of a public officer, juror or witness by a major drug trafficker. Capital Punishment Part IV Chapter 9  The Penalty Hearing A. Procedural Rights a. Bullington v. MO  specific issue is whether double jeopardy principles apply to the penalty determination. b. Spaziano v. FL  Trial judge imposed a death sentence after the jury had recommended a life sentence, and issue is whether ∆ had a right to a jury determination as to penalty. c. Ring v. AZ  Court must decide whether the ∆ has a right to a jury determination of the facts making him death-eligible. d. Gardner v. FL  Court considers a due process (fair notice) challenge to the penalty determination B. Evidentiary Limits a. Green v. GA  ∆ challenges state’s hearsay rule that barred him from introducing evidence that he was only an accomplice rather than the actual killer. b. Barefoot v. Estelle  ∆ challenges the prosecution’s use of psychiatric testimony to prove “future dangerousness.” April 1: Additional Process Issues: pp.506-526, Bullington v. MO (1981) (double jeopardy in sentencing?); note: Sattazahn v. Pennsylvania (2003); Spaziano v. Florida (1984) and notes (judicial override of jury recommendation). Bullington v. MO (1981)  • Issue: o Whether the reasoning of Stroud is also to apply under a system where a jury’s sentencing decision is made at a bifurcated proceeding’s second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the DP may be imposed? • Holding: o Jury’s decision at petitioner’s first trial to sentence him to life imprisonment precludes MO from asking jury at petitioner’s second trial to sentence him to death.  Having received “one fair opportunity to offer whatever proof it could assemble,” State is not entitled to another. o Unacceptably high risk that prosecution would wear down a ∆ with another capital trial, thereby leading to an erroneously imposed death sentence, would exist if State were to have further opportunity to convince a jury to impose the ultimate punishment.



o MO statute has substantive standards to guide discretion of sentencer.
Procedural safeguards for ∆.  Trial court shall conduct separate presentence hearing for ∆ who is convicted by jury of capital murder. Hearing must be held before same jury that found ∆ guilty, and “additional evidence in extenuation, mitigation and aggravation of punishment” shall be heard.  Jury not compelled to impose DP even if decides sufficient agg circ exist or are not outweighed by mitigating. Jury’s decision to impose DP must be unanimous. If jury unable to agree, ∆ receives alternative sentence of life imprisonment.  By operation of law, judge required to impose life sentence if jury cannot agree. o Jury fixed punishment for ∆ at imprisonment for life. Based on a SC case Duren v. MO, trial judge granted ∆ new trial. Prosecution filed notice intended to seek DP again, would rely on same agg circ. o ∆ moved, on double jeopardy grounds, to bar prosecution from seeking DP… Rules: o Stroud v. US  ∆ convicted 1st degree and sentenced to life. Obtained, upon confession of error by Solicitor General, a reversal of his conviction and a new trial. Court held that Double Jeopardy Clause of 5 th Amendment did not bar imposition of DP when Stroud at new trial was again convicted. o Double Jeopardy Clause – forbids the retrial of a ∆ who has been acquitted of crime charged. Imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a ∆ has succeeded in having his original conviction set aside. o No double jeopardy bar to retrying a ∆ who has succeeded in overturning his conviction.  ∆ may not be retried if obtains a reversal of his conviction on the ground that evidence was insufficient to convict… Reasoning: o Procedure that resulted in imposition of life sentence upon petitioner Bullington at his first trial, however, differs significantly from those employed in any of the Court’s cases where the DJ Clause has been held inapplicable to sentencing.  Jury in this case not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute.  Nor did prosecution simply recommend what it felt to be appropriate punishment. Undertook burden of establishing certain facts beyond a reasonable doubt in its quest to obtain harsher of 2 alternative verdicts.  Presentence hearing resembled and in all relevant respects was like immediately preceding trial on issue of guilt/innocence. It was itself a trial on issue of punishment…


o Sentence of life imprisonment which ∆ received at his first trial meant that
“jury had already acquitted ∆ of whatever was necessary to impose death sentence.”  Verdict of acquittal on issue of guilt/innocence is absolutely final. Values that underly that principle equally applicable when jury has rejected state’s claim that ∆ deserves to die. Dissent (Powell, with Chief, White and Rehnquist): o Finds wholly unpersuasive the Court’s justification for applying the implicitacquittal principle to sentencing.  Court’s opinion irreconcilable in principle with precedents. o Imposition of sentence does not operate as an implied acquittal of any greater sentence.  No objective measure by which the sentencer’s decision can be deemed correct or erroneous if it is duly made within the authority conferred by the legislature. o Fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal. o Possibility of a higher sentence is acceptable under the DJC, whereas the possibility of error as to guilt or innocence is not, because second jury’s sentencing decision is as “correct” as the first jury’s.  When ∆ found guilty, must bear ordeal of being sentenced just as he does ordeal of serving sentence.

Spaziano v. FL (1984)  • Issue: o Trial judge imposed a death sentence after the jury had recommended a life sentence, and issue is whether ∆ had a right to a jury determination as to penalty. o ∆ urges that allowing a judge to override a jury’s recommendation of life violates the 8th Amendment’s proscription against “cruel and unusual punishments.” Because the jury’s verdict of life should be final, ∆ argues, the practice also violates the 5th Amendment’s DJC. ∆ urges that practice violates 6th Amendment and DPC of 14th by drawing on Court’s recognition of value of jury’s role… o Whether, given a verdict of life, the judge may override that verdict and impose death? • Holding: o In light of the facts that the 6th Amendment doesn’t require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the DP requires jury sentencing, Court cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.  Unwilling to say there is any right way for State to set up its capital sentencing scheme.


 Not persuaded that placing responsibility on trial judge to impose
sentence so fundamentally at odds with contemporary standards of fairness and decency that FL must be required to alter its scheme. o With double jeopardy claim, if judge may be vested with sole responsibility for imposing penalty, then nothing constitutionally wrong with judge’s exercising that responsibility after receiving the advice of the jury.  Advice not a judgment simply because comes from jury…  Nothing that suggests application of jury-override procedure has resulted in arbitrary or discriminatory application of the DP, either in general or this particular case… Facts: o Majority of jury recommended life imprisonment at sentencing hearing. However, trial judge found 2 agg circ outweighed mitigating and sentenced petitioner to death. Rules: o Because embarrassment, expense and ordeal…faced by a ∆ at the penalty phase of a…capital murder trial…are at least equivalent to that faced by any ∆ at the guilt phase of a criminal trial,” Court has concluded that DJC bars State from making repeated efforts to persuade a sentencer to impose the DP (Bullington). o Sentencer, whether judge or jury, has constitutional obligation to evaluate unique circumstances of individual ∆ and sentencer’s decision for life is final. o 6th Amendment never has been thought to guarantee right to a jury determination of that issue. Reasoning: o Retributive function of the sentence can be imposed by a judge and not just by the jury. Discretion of the sentencing authority, whether judge or jury, must be limited and reviewable. o Purpose of the DP is not frustrated by, or inconsistent with, a scheme in which the imposition of the DP in individual cases is determined by judge. o Fact that majority of other jxns have adopted a different practice does not establish that contemporary standards of decency are offended by the jury override.  30 out of 37 jxn with capital sentencing statute give life-or-death decision to the jury, with only 3 of remaining 7 allowing judge to override jury’s recommendation of life. Stevens, with Brennan and Marshall (concurring in part and dissenting in part): o Danger of an excessive response can only be avoided if decision to impose DP is made by jury rather than by single government official. Conviction is consistent with judgment of history and current consensus of opinion that juries are better equipped than judges to make capital sentencing decisions. o American jurisprudence has considered the use of the jury to be important to the fairness and legitimacy of capital punishment.


o Because DP unique, the normal presumption that a judge is the
appropriate sentencing authority doesn’t apply in capital context.  Jury serves to ensure that criminal process is not subject to unchecked assertion of arbitrary governmental power; community participation is critical to public confidence in fairness of criminal justice system. o History, tradition and basic structure and purpose of jury system persuade him that jury sentencing is essential if admin of capital punishment is to be governed by the community’s evolving standards of decency. Constitutional legitimacy of capital punishment depends upon the extent to which the process is able to produce results which reflect the community’s moral sensibilities. Judges simply cannot acceptably mirror those sensibilities.  Judicial sentencing in capital cases cannot provide the type of community participation in the process upon which its legitimacy depends. o In this case FL has authorized the imposition of disproportionate punishment in violation of the 8th and 14th Amendments…

Notes (pp.525-526): o Elected judges and the DP –  39 states provide that some or all of their judges must be voted on, in competitive or retention elections, at some time in their careers. In 30 of 35 DP states, trial court judges must stand for election, and in all but 4 of those, same is true of appellate judges.  Stevens noted there were substantially different results when judges, rather than juries, made penalty decision in a capital case. AL judges vetoed only 5 jury recs of death, but overrode jury recs of life in order to impose DP on 47 ∆s. In FL, judges overrode jury recds 134 times to impose DP, but only 51 for life. In IN, overrides to impose 8 DP, only 4 life sentences. • Stevens attributed differences to fact that jurors, even those who support candidates who are tough on crime, are not subject to same political pressures as elected judges.

April 5: pp.526-545, Ring v. AZ, Gardner v. FL and notes Ring v. AZ (2002)  • Issue: o 6th Amendment right to a jury trial in capital prosecutions. o Whether that aggravating factor required to be found to impose death may be found by the judge, as AZ law specifies, or whether the 6 th Amendment’s jury trial guarantee, made applicable to the states by the 14th Amendment, requires that the agg factor determination be entrusted to the jury? • Holding: o Court overrules Walton in relevant part. Capital defendants, no less than non-capital defendants, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.


o Hold that Walton and Apprendi are irreconcilable; 6th Amendment
jurisprudence cannot be home to both. Accordingly, Court overrules Walton to extent that it allows sentencing judge, sitting without jury, to find an agg circ necessary for imposition of DP. o Because AZ’s enumerated agg factors operate as “functional equivalent of an element of a greater offense,” 6th Amendment requires they be found by the jury. Facts: o In AZ, following jury adjudication of ∆’s guilt of 1st degree murder, the trial judge, sitting alone, determines the presence or absence of the agg factors required by AZ law for imposition of DP.  Under AZ law, Ring couldn’t be sentenced to death unless further findings made after guilt/innocence phase.  Law directs judge to conduct separate sentencing hearing to determine existence of certain circumstances for purpose of determining sentence to be imposed. Hearing conducted by court alone; court alone makes all factual determinations required by this section. o At conclusion of sentencing hearing, judge determines presence or absence of agg and mitigating circumstances.  here, judge found 2 agg factors. Mitigating circ found didn’t call for leniency so judge sentenced Ring to death. o Walton v. AZ  Court held AZ’s sentencing scheme compatible with 6th Amendment because additional facts found by judge qualified as sentencing considerations, not as elements of offense of capital murder.  10 years later, Apprendi v. NJ  held that 6th Amendment does not permit ∆ to be exposed to penalty exceeding max he would receive if punished according to facts reflected in jury verdict alone. o Reasoning of Apprendi irreconcilable with Walton. Court overrules Walton. Rules: o After overruling Walton, capital ∆s, no less than non-capital ∆s, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. o Appendi  If a State makes an increase in a ∆’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt. A ∆ may not be exposed…to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone. Reasoning: o In effect, the required finding of an aggravated circumstance exposed Ring to a greater punishment than that authorized by the jury’s guilty verdict. o Apart from 8th Amendment provenance of agg factors, AZ presents no specific reason for excepting capital ∆s from constitutional protections… extended to ∆s generally, and none is readily apparent. o Superiority of judicial factfinding in capital cases is far from evident. Unlike AZ, great majority of States responded to Court’s 8th Amendment decisions


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requiring presence of agg circ in capital cases by entrusting those determinations to the jury. Scalia, with Thomas (concurring): o What compelled AZ and many other states to specify particular agg factors that must be found before DP imposed was Court’s cases beginning with Furman.  In his view, that line of decisions had no proper foundation in Constitution.  Reluctant to magnify the burdens that Furman jurisprudence imposes on States. o Believe fundamental meaning of jury-trial guarantee of 6 th Am. is that all facts essential to imposition of level of punishment ∆ receives must be found by jury beyond reasonable doubt. o Since Walton, 2 realizations:  1) impossible to id with certainty those agg factors whose adoption has been wrongfully coerced by Furman, as opposed to those that State would have adopted in any event.  2) Accelerating propensity of both state and fed legislatures to adopt sentencing factors determined by judges that increase punishment beyond what’s authorized by jury’s verdict, and witnessing belief by Court that that’s ok, causes him to believe people’s traditional belief in right of trial by jury is in decline. o What today’s decision says is that jury must find the existence of the FACT that agg factor existed. Those States that leave ultimate life or death decision to judge may continue to do so – by requiring prior jury finding of agg factor in sentencing phase or by placing agg factor determination in guilt phase. Kennedy (concurring): o No principled reading of Apprendi will allow Walton to stand. During penalty phase of 1st degree murder prosecution in AZ, finding of agg circ exposes ∆ to greater punishment than that authorized by jury’s guilty verdict. When finding has this effect, Apprendi makes clear it cannot be reserved for judge. o Apprendi and Walton can’t stand together as law… Breyer (concurring): o Believes jury sentencing in capital cases mandated by 8th Amendment. o 8th Amendment requires that jury, not judge, make decision to sentence ∆ to death.  1) belief that retribution provides main justification for capital punishment; and  2) assessment of jury’s comparative advantage in determining in particular case whether capital punishment will serve that end. o In respect to retribution, jurors possess important comparative advantage over judges. Reflect composition and experiences of community as a whole. O’Connor, with Chief (Dissenting):

Would choose to overrule Apprendi, not Walton. Believes Apprendi decision serious mistake. Apprendi’s rule that any fact that increases max penalty must be treated as element of crime is not required by Constitution, by history, or by prior cases. Rule contradicts several prior cases. Ignores significant history in this country of discretionary sentencing by judges. o Severely destabilizing effect on criminal justice system. Would unleash floods of petitions by convicted ∆s seeking to invalidate their sentences in whole or in part on Apprendi.  Apprendi threw countless sentences into doubt and caused enormous increase in workload of overburdened judiciary. o Decision today will add to these effects. Court effectively declares 5 states’ capital sentencing schemes unconstitutional. o Would overrule Apprendi instead of Walton…


Gardner v. FL (1977)  • Issue: o ∆ argued sentencing court erred in considering the presentence investigation report, including the confidential portion, in making the decision to impose the DP. • Holding: o This procedure doesn’t satisfy the constitutional command that no person shall be deprived of life without due process of law. o Even if it were permissible to withhold a portion of the report from ∆, and even from ∆ counsel, pursuant to an express finding of good cause for nondisclosure, it would nevertheless be necessary to make the full report a part of the record to be reviewed on appeal. o Petitioner was denied due process of law when death sentence was imposed, at least in part, on basis of information which he had no opportunity to deny or explain. • Facts: o ∆ convicted of first-degree murder and sentenced to death. When trial judge imposed death sentence stated was relying in part on information in a presentence investigation report. Portions of the report were not disclosed to counsel for the parties. Without reviewing the confidential portion of the presentence report, the SC of FL affirmed the death sentence. o Jury had recommended life sentence, finding mitigating outweighed aggravating. Judge imposed death based on evidence presented at both stages of bifurcated proceeding, the arguments of counsel and his review of the factual information contained in the presentence investigation. o Record on appeal did NOT include confidential portion of the presentence report. • Rules: o Death is a different kind of punishment from any other. Different in severity and finality. Differs dramatically from any other legit state action.


o Vital importance to ∆ and to community that any decision to impose DP be
and appear to be based on reason rather than caprice or emotion.

o Sentencing process as well as trial must satisfy requirements of DPC. •
Entitled to effective assistance of counsel. Reasoning: o Florida argues trial judges can be trusted to exercise discretion in responsible manner, even though they may base their decisions on secret information. However acceptable that argument might have been before Furman, it is now clearly foreclosed. o Argument rests on erroneous premise that the participation of counsel is superfluous to process of evaluating relevance and significance of aggravating and mitigating facts. Our belief that debate between adversaries is often essential to the truth-seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases. o Even if permissible to withhold portion of report from defendant, and from defense counsel, pursuant to express finding of good cause for nondisclosure, it would nevertheless be necessary to make full report part of record to be reviwed on appeal. o Consideration must be given to quality of information on which judge relies. Risk that some of the information accepted in confidence may be erroneous, or misinterpreted, by investigator or sentencing judge is manifest. o In some cases report will be decisive in judge’s choice between life sentence and death. o Interest in reliability outweighs State’s interest in preserving availability of comparable information in other cases. o Likelihood of delay because of disclosure overstated by State. Trial judge can avoid delay by disregarding disputed material. o Full disclosure won’t disrupt rehabilitation process, since irrelevant in death sentence. o Trial judges can’t be trusted to exercise discretion in responsible manner… Dissent (Rehnquist): o Argues that sentencing procedures of the kind used by FL had never been found to violate due process and the prohibition of the 8th Amendment relates to the character of the punishment, and not to the process by which it is imposed. o If capital punishment is not cruel and unusual under 8th and 14th Am., as Court held in that case, the use of particular sentencing procedures… cannot convert the sentence into a cruel and unusual punishment.

April 7: pp.545-564, Green v. GA, Barefoot v. Estelle and notes Green v. GA (1979)  • Issue:


o ∆ challenges state’s hearsay rule that barred him from introducing •
evidence that he was only an accomplice rather than the actual killer. Holding: o Exclusion of the proffered testimony constituted a violation of the DPC of the 14th Amendment. Excluded testimony was highly relevant to critical issue in punishment phase of trial, and substantial reasons existed to assume its reliability. o Exclusion of testimony denied ∆ a fair trial on issue of punishment. Facts: o ∆ and Moore were indicted together for rape and murder of woman. Moore tried separately, convicted of both crimes, and has been sentenced to death. Petitioner subsequently convicted of murder, and also received a capital sentence. o At punishment proceeding, ∆ sought to show he was not present and didn’t participate in death. Attempted to introduce testimony of Pasby, who testified for State at Moore’s trial. According to Pasby, Moore confided to him that he had killed woman.  Trial court refused to allow introduction of this evidence, ruling it constituted inadmissible hearsay. Dissent (Rehnquist): o Impossible to find justification in Constitution for today’s ruling. Nothing in Constitution gives Court any authority to supersede State’s code of evidence.  GA evidence rules are such that certain items of evidence may be introduced by one party, but not another. o US Constitution must be strained to or beyond breaking point to conclude that all capital ∆s who are unable to introduce all of the evidence which they seek to admit are denied fair trial…

Barefoot v. Estelle (1983)  • Issue: o ∆ argues death sentence must be set aside because Constitution barred testimony of 2 psychiatrists who testified against him at punishment hearing.  1) urged that psychiatrists, individually and as group, are incompetent to predict with acceptable degree of reliability that a particular criminal will commit other crimes in future and so represent a danger to community.  2) said that in any event, psychiatrists should not be permitted to testify about future dangerousness in response to hypothetical questions and without having examined ∆ personally.  3) Argued that in particular circumstances of case, testimony of psychiatrists so unreliable that sentence should be set aside. • Holding: o Court rejects each of these arguments… o Psychiatric testimony about a ∆’s future dangerousness is admissible.


o No doubt that psychiatric testimony increased likelihood ∆ would be
sentenced to death, but this fact doesn’t make that evidence inadmissible any more than it would with respect to other relevant evidence against any ∆ in criminal case. o To agree with petitioner’s basic position would seriously undermine and in effect overrule Jurek. Court not inclined to overturn the decision in that case… o Court also rejects petitioner’s arguments against use of hypothetical questions. Facts: o During sentencing, State introduced into evidence ∆’s two prior convictions and reputation for lawlessness. Also called 2 psychiatrists, who, in response to hypothetical questions, testified that petitioner would probably commit further acts of violence and represent a continuing threat to society. o Jury answered required questions on future dangerousness and deliberateness of crime affirmatively, imposing death. Rules: o Prediction of future criminal conduct is an essential element in many of the decisions rendered in criminal justice system. o Expert testimony, whether in form of opinion based on hypothetical questions or otherwise, is commonly admitted as evidence where it might help the factfinder do its assigned job. o From Jurek, no suggestion by Court that testimony of doctors would be inadmissible when lay testimony with respect to dangerousness allowed. Court said jury should be presented with all relevant information. o Whether individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on meaning of facts which must be interpreted by expert psychiatrists and psychologists. Reasoning: o Suggestion that no psychiatrist’s testimony may be presented with respect to a ∆’s future dangerousness is somewhat like asking Court to disinvent the wheel. Contrary to cases.  Acceptance of ∆’s position that expert testimony about future dangerousness is far too unreliable to be admissible would immediately call into question those other contexts in which predictions of future behavior are constantly made. o If the jury may make up its mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State’s psychiatrists along with opposing views of the ∆’s doctors. o Court not persuaded that such testimony is almost entirely unreliable and that the factfinder and the adversary system will not be competent to uncover, recognize and take due account of its shortcomings.  Adversary system can sort out unreliable from unreliable evidence and opinion about future dangerousness. Dissent (Blackmun, with Brennan and Marshall):

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o o





In present state of psychiatric knowledge, this is too much. When person’s life is at stake, greater requirement of reliability should prevail. Despite psychiatrist’s claims that they were able to predict ∆’s future behavior “within reasonable psychiatric certainty,” or to a “one hundred percent and absolute” certainty, there was in fact no more than 1 in 3 chance they were correct. Impossible to square admission of this purportedly scientific but actually baseless testimony with the Constitution’s paramount concern for reliability in capital sentencing.  Admission of unreliable psychiatric predictions of future violence, offered with unabashed claims of “reasonable medical certainty” or “absolute professional reliability, creates an intolerable danger that death sentences will be imposed erroneously.” Psychiatric predictions of future dangerousness are not accurate.  Court’s commitment to ensuring that death sentences are imposed reliably and reasonably requires that nonprobative and highly prejudicial testimony on the ultimate question of life or death be excluded from a capital sentencing hearing. Evidence suggests that juries are not effective at assessing the validity of scientific evidence.  Psychiatric predictions of future violence will have an undue effect on the ultimate verdict.  Risk that jury will be incapable of separating “scientific” myth from reality is deemed unacceptably high. Even at best, presentation of defense psychiatrists will convert the death sentence hearing into a battle of experts.

Notes (pp.561-563): • Estelle v. Smith (1981)  o SC found ∆’s constitutional rights violated by introduction of Dr.’s testimony at penalty phase of trial, and affirmed grant of habeas corpus relief. o At sentencing hearing, Dr. who’d examined ∆ for competency to stand trial testified that he’d be danger to society. o SC held ∆’s 5th Amendment rights had been violated because he hadn’t been warned before competency exam that statements could be used against him. Found 6th Am. rights violated since competency exam was “critical stage” of prosecution and Smith’s counsel had not been notified in advance that exam would encompass future dangerousness. • Statutory challenges to the reliability of psychiatric testimony  o Daubert rule (1993) – SC held that to be admissible under Fed Evid 702, scientific, technical, or specialized evidence must be shown to be relevant and reliable. • “Future dangerousness” as an aggravator  o TX is one of few states that makes future dangerousness an aggravating factor for purposes of death eligibility.


o 2 arguments by critics against using it:  1) as studies since Barefoot have confirmed, even using newer
methodologies for predicting future violence, error rate in such predictions is extraordinarily high, around 50%.  2) Purpose served by imposing DP on ∆ based on finding of future dangerousness is incapacitation, but DP is clearly excessive for that purpose since life imprisonment, especially without possibility of parole and perhaps with isolation, would do as well. Race and Dangerousness  o At penalty hearing, former chief psychologist testified ∆ would be future danger to society in part because he was Hispanic and Hispanics have higher crime rate than other people. ∆ sentenced to death. o SC vacated judgment and remanded the case… Expert’s testimony violated 8th Amendment.

Capital Punishment April 8 – April 12, including make-up class. Chapter 10  Guiding the Sentencer April 8: pp. 615-638, California v. Ramos, Caldwell v. Mississippi, Simmons v. South Carolina California v. Ramos (1983)  • Facts: o ∆ challenges the “Briggs Instruction” mandated under CA law. Contends that 1) capital sentencing jury may not constitutionally consider possible commutation, and 2) that the Briggs instruction unconstitutionally misleads the jury by selectively informing it of the Governor’s power to commute one of its sentencing choices but not the other. • Issue: o Constitutionality under the 8th and 14th Amendments of instructing a capital sentencing jury regarding the Governor’s power to commute a sentence of life without possibility of parole? • Rules: o In addition to requiring jury instructions on aggravating and mitigating circumstances, CA law requires that the trial judge inform the jury that a sentence of life imprisonment without the possibility of parole may be commuted by the Governor to a sentence that includes the possibility of parole. o Future dangerousness is a relevant consideration in EVERY sentencing hearing. • Holding: o Capital sentencing jury’s consideration of the Governor’s power to commute a life sentence is not prohibited by the Federal Constitution. o The “Briggs Instruction” does not violate any of the substantive limitations this Court’s precedents have imposed on the capital sentencing process. It does not preclude individualized sentencing determinations or


consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jury’s deliberation. Finally, its failure to inform the jury also of the Governor’s power to commute a death sentence does not render it constitutionally infirm. Therefore, Court defers to the State’s identification of the Governor’s power to commute a life sentence as a substantive factor to be presented for the sentencing jury’s consideration. Reasoning: o By bringing to the jury’s attention the possibility that ∆ may be returned to society, the Briggs Instruction invites the jury to assess whether ∆ is someone whose probable future behavior makes it undesirable that he be permitted to return to society. Briggs Instruction focuses jury on ∆’s probable future dangerousness (approved as factor in Jurek). o Briggs Instruction gives jury accurate information of which ∆ and his counsel are aware. Doesn’t preclude ∆ from offering any evidence or argument regarding Governor’s power to commute a life sentence. o Jury’s deliberation is still individualized. Instruction invites jury to consider what ∆ might do, not what Governor might do. o Unconvinced Briggs Instruction constrains the jury’s sentencing choice. Just places before the jury an additional element to be considered.

Caldwell v. Mississippi (1985)  • Facts: o Prosecutor urged the jury not to view itself as determining whether the ∆ would die, because a death sentence would be reviewed for correctness by the State Supreme Court.  Prosecutor sought to minimize the jury’s sense of the importance of its role. o Petitioner’s contention that the prosecutor’s argument rendered the capital sentencing proceeding inconsistent with the 8th Amendment’s heightened “need for reliability in the determination that that death is the appropriate punishment in a specific case” (Woodson v. North Carolina). • Issue: o Whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case? • Rules: o 8th Amendment jurisprudence has taken as a given that capital sentencers would view their task as a serious one of determining whether a specific human being should die at hands of State. • Holding: o Constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the ∆’s death rests elsewhere…


o State sought to minimize the jury’s sense of responsibility for determining
the appropriateness of death. Court cannot say this effort had no effect on the sentencing decision so that decision doesn’t meet standard of reliability that 8th Amendment requires. Reasoning: o Specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court. o 1) “Delegation” of sentencing responsibility that the prosecutor here encouraged would thus not simply postpone the ∆’s right to a fair determination of the appropriateness of his death; rather would deprive him of that right, for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance.  Most appellate courts review sentencing determinations with a presumption of correctness. o 2) Even when a sentencing jury is unconvinced death is appropriate punishment, it might nevertheless wish to “send a message” of extreme disapproval for ∆’s acts. This desire might make jury very receptive to prosecutor’s assurance that it can more freely “err” because error may be corrected on appeal. o 3) Bias could stem from fact that some jurors may correctly assume that a sentence of life in prison could not be increased to a death sentence on appeal.  If jury understands that only death sentence will be reviewed, it will also understand that any decision to “delegate” responsibility for sentencing can only be effectuated by returning that sentence. o 4) Argument offers jurors a view of their role which might be highly attractive.  Many jurors will be tempted to view these legal authorities as having more of a “right” to make decision than jury.

Simmons v. South Carolina (1994)  • Facts: o Petitioner was parole ineligible due to earlier offenses when capital murder trial began. o Over defense counsel’s objection, trial court granted prosecution’s motion for an order barring the defense from asking during voir dire any question regarding parole. Forbidden even to mention subject of parole, despite prosecution arguing that ∆’s future dangerousness was factor for jury to consider when fixing appropriate punishment. o Petitioner argued that, in view of public’s apparent misunderstanding about meaning of “life imprisonment” in South Carolina, there was a reasonable likelihood that jurors would vote for death simply because they believed, mistakenly, that petitioner would eventually be released on parole.


o Trial court refused any such instruction where the court would tell jurors •
that sentence to life imprisonment means sentenced to imprisonment in state penitentiary for balance of natural life… Issue:

o Whether the Due Process Clause of the 14th Amendment was violated by
the refusal of a state trial court to instruct the jury in the penalty phase that under state law the defendant was ineligible for parole? Rules:

o Due Process Clause does not allow the execution of a person “on the basis
of information which he had no opportunity to deny or explain.”

o Defendant’s future dangerousness bears on all sentencing determinations
made in criminal justice system. o Where prosecution relies on a prediction of future dangerousness in requesting the death penalty, elemental due process principles operate to require admission of the ∆’s relevant evidence in rebuttal. Holding: o Hold that where ∆’s future dangerousness is at issue, and state law prohibits the ∆’s release on parole, due process requires that the sentencing jury be informed that ∆ is parole ineligible. o Because truthful information of parole ineligibility allows the ∆ to “deny or explain” the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury’s attention by way of argument by defense counsel or an instruction from the court. Reasoning: o Jury reasonably may have believed that petitioner could be released on parole if he were not executed. Effect of creating a false choice between sentencing ∆ to death and sentencing him to a limited period of incarceration. o Petitioner prevented from rebutting information that sentencing authority considered, and upon which it may have relied, in imposing the sentence of death. o In assessing future dangerousness, the actual duration of the ∆’s prison sentence is indisputably relevant. Entirely reasonable for jury to view ∆ who is eligible for parole as greater threat to society than ∆ who is not. Concurring Opinion (O’Connor, with Chief and Kennedy): o When State seeks to show ∆’s future dangerousness, the fact that he will never be released from prison will often be the only way that a violent criminal can successfully rebut the State’s case. o ∆ should be allowed to bring his parole ineligibility to the jury’s attention as a means of responding to State’s showing of future dangerousness. o Due process requires that ∆ be allowed to do so in cases in which only available alternative sentence to death is life imprisonment without possibility of parole and prosecution argues ∆ will pose a threat to society in future.


April 12: pp. 638-658, notes following Simmons, Weeks v. Angelone, and another look at Essay: What do Jurors Understand?” (653-658, previously assigned). Notes (p.639) – Ramdass v. Angelone  • 3-strikes rule in VA. Under this law, ∆ convicted and sentenced for murder and 2 robberies would be ineligible for parole. • ∆ convicted but not yet sentenced. Court refused to give Simmons instruction. Because convicted and has 3rd strike, not eligible for parole. Prosecution argues he hasn’t yet been sentenced for earlier strike, so technically he is still eligible for parole so not entitled to Simmons instruction… o Theory being something might happen so that prior conviction not going to stick. • Court – Procedural. o 5-4 for prosecution. No constitutional right to have jury hear it… o Doesn’t mean trial court couldn’t have done it and prosecution couldn’t have objected. • Kennedy - habeas relief was not warranted because defendant's third conviction under Virginia's three-strike rule was not final under Virginia law at time jury considered sentence in murder case. Weeks v. Angelone (2000)  • Facts: o During sentencing, jury asked question “does sentence of life imprisonment in VA have the possibility of parole, and if so, under what conditions must be met to receive parole?”  Judge responded “You should impose such punishment as you feel is just under the evidence, and within the instructions of the Court. You are not to concern yourself with what may happen afterward.” o Jury asked second question, “If we believe that ∆ is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the DP? Or must we decide (even though he is guilty of one of the alternatives) whether or not to issue the DP, or one of the life sentences? What is the rule? Please clarify?  Judge responded by pointing to second paragraph of instructions. o Prosecution stated that judge’s solution was appropriate. ∆ counsel argued that jury should be instructed that even if they find one or both mitigating factors, they still may impose a life sentence. • Issue: o Question whether the Constitution is violated when a trial judge directs a capital jury’s attention to a specific paragraph of a constitutionally sufficient instruction in response to a question regarding the proper consideration of mitigating circumstances? • Rules: o Buchanan v. Angelone  Court considered whether the 8th Amendment required that a capital jury be instructed on particular mitigating factors. Buchanan’s jury was given precisely the same VA pattern capital instruction given to ∆’s jury here.


 Sentencer may not be precluded from considering, and may not
refuse to consider, any constitutionally relevant mitigating evidence, and that State may structure jury’s consideration of mitigating so long as does not preclude jury from giving effect to it. o VA pattern jury instruction there and here did not violate these principles. Holding: o Constitution is NOT violated and habeas relief is barred. Trial judge gave no erroneous instruction. Gave instruction Court upheld in Buchanan v. Angelone as being sufficient to allow the jury to consider mitigating evidence. In addition, gave specific instruction on mitigating evidence. Reasoning: o Jury is presumed to follow its instructions. Jury is presumed to understand judge’s answer to its question. This particular jury demonstrated it was not too shy to ask questions, suggesting it would have asked another if judge’s response unsatisfactory. o Once jury received judge’s response to its question, had not only text of instruction but also additional instruction on mitigation. o Petitioner has at best demonstrated only possibility that jury considered itself precluded from considering mitigating evidence.  Such a demonstration is insufficient to prove a constitutional violation under Boyde, which requires the showing of a reasonable likelihood that the jury felt so restrained. Dissent (Stevens, Ginsburg, Breyer, and Souter): o Boyde –  Proper inquiry where claim that an instruction, though not erroneous, is sufficiently ambiguous to be “subject to an erroneous interpretation,” is whether there is a reasonable likelihood that the jury has applied the challenged likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” o Record here establishes not just a reasonable likelihood of juror confusion, but a virtual certainty that the jury didn’t realize that there were 2 distinct legal bases for concluding that a death sentence was not “justified.” o 4 different aspect of records cumulatively provide compelling support for the conclusion that the jury didn’t understand the law authorized it “not to issue the DP” even though it found petitioner “guilty of at least 1” aggravating circumstance.  1) text of the instruction  2) judge’s responses to the jury’s inquiries  3) the verdict forms given to the jury; and  4) the court reporter’s transcription of the polling of the jury. o Reasonable likelihood that jury acted on basis of misunderstanding of duty, despite strong desire to spare life of ∆. Notes (p. 651-653) 

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o Question of juror confusion – under federal law, juror testimony regarding
the mental processes of jurors and their conduct during deliberations is inadmissible except insofar as the testimony relates to any extraneous prejudicial information brought to the jury’s attention or to any outside influence improperly brought to bear upon any juror. What do Jurors Understand  • Jury has historically served as voice of community in capital sentencing. Point of jury instructions is to explain the applicable law to these non-lawyers so they understand their task. • Study to evaluate how well jurors understand the instructions that are to guide them in their sentencing of a ∆ to death or life imprisonment. • Meaning of aggravation and mitigation: o Empirical research suggests that CA capital sentencing instructions do not adequately explain the basic concepts of aggravation and mitigation and there is confusion over whether a particular sentencing factor is to be considered aggravating or mitigating. o Least understood term was “extenuating.” Many jurors who served in capital trials between 1990 and 1994 didn’t understand scope of permissible aggravating and mitigating factors. • Procedural requirements and statutory formula for the penalty determination: o Jurors must understand procedural requirements for proving aggravating and mitigating factors as well as the statute’s formula for arriving at the appropriate sentence. o North Carolina study assessed jurors’ understanding of when, under the sentencing instruction, a ∆ was to be sentenced to life or death.  Roughly ¼ of jurors felt that death was mandatory when it was not and ½ failed to appreciate situations which mandated life. o South Carolina jurors confused about different burdens of proof applicable to aggravating factors and mitigating factors and requirement of unanimity. o Potential capital jurors in Illinois misunderstand the issue of unanimity and when the statute calls for a life sentence or death sentence. • Factors Contributing to Jurors’ Misunderstanding of Capital Sentencing Instructions. o 1) Instructions are long and boring. o 2) Instructions are not clearly and simply written but often use complex syntax, unfamiliar words, and multiple negatives. o 3) Instructions do not highlight concepts that are new or unfamiliar, so jurors are forced to rely on their own prior knowledge or assumptions which may not be accurate.  Capital sentencing instructions should be drafted so that legal terms and unfamiliar concepts are explained in clear, simple and accessible language. Make-Up Class, April 19: Victim Impact – pp. 586-601, Payne v. Tennessee and Notes; O.C.G.A. § 17-10-1.2, Livingston v. State (1994)(Section 1), Turner v. State (1997)


(Sections 1 and 2), Tollette v. State (2005)(Section 11), Bryant v. State (on TWEN), Kelly v. California (2008)(Stevens dissent, Breyer dissent). Payne v. Tennessee (1991)  • Facts: o ∆ sentenced to death for 2 counts first-degree murder. At trial, despite overwhelming evidence against him, ∆ testified he hadn’t harmed any of the victims. During sentencing, had 4 witnesses testify on his behalf. o State presented testimony of grandmother, who testified about how boy had been affected by murders of his mother and sister. In arguing for DP, prosecutor commented on the continuing effects of grandson’s experience.  “There is something [jury] can do for Nicholas…he is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer.” • Issue: o Court now reconsidering Booth and Gathers that 8th Amendment prohibits a capital sentencing jury from considering “victim impact” evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family. • Rules: o Previous holdings: Booth v. Maryland and South Carolina v. Gathers, which held that 8th Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial. o Booth –  Court held 5-4 that 8th Amendment prohibits jury from considering a victim impact statement at the sentencing phase of a capital trial. Admissibility of victim impact evidence NOT to be determined on case-by-case basis, but that such evidence was PER SE inadmissible in sentencing phase of capital case except to extent that it “related directly to circumstances of crime.” o Gathers –  Court extended Booth rule to statements made by a prosecutor to sentencing jury regarding personal qualities of victim. o Except to extent victim impact evidence relates directly to circumstances of crime, prosecution may not introduce such evidence at a capital sentencing hearing because it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner. o States remain free, in capital cases, to devise new procedures and new remedies to meet felt needs. • Holding: o State may properly conclude that for the jury to assess meaningfully the ∆’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the ∆.  State has a legitimate interest in counteracting the mitigating evidence which the ∆ is entitled to put on.


o If the State chooses to permit the admission of victim impact evidence and
prosecutorial argument on that subject, the 8th Amendment erects no per se bar. A State may legitimately consider the evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not DP should be imposed… Reasoning: o Assessment of harm caused by the ∆ as a result of the crime charged has understandably been an important concern of the criminal law. o Misreading of Woodson, which required that capital ∆ be treated as a “uniquely individual human being.” Language from Woodson as quoted in Booth not intended to describe a class of evidence that could NOT be received, but a class of evidence that MUST be received. o Evidence relating to victim often before jury during guilt phase. o Victim impact evidence not offered to encourage comparative judgments where juries permitted to find that defendants whose victims were assets to community more deserving of punishment than those whose victims more worthless (homeless man as victim scenario).  Designed instead to show victim’s “uniqueness as individual human being…” o Victim impact evidence simply another form or method of informing sentencing authority about specific harm from crime in question. Doesn’t lead to arbitrary imposition of the DP… Dissent (Stevens): o Court’s decision represents a dramatic departure from the principles that have governed capital sentencing jurisprudence for decades. Sharp break from past decisions. o Victim impact evidence serves no purpose other than to appeal to the sympathies or emotions of the juror’s and has never been considered admissible. o 2 flaws related to 8th amendment’s command DP not be handed out arbitrarily or capriciously:  1) aspects of character of victim unforeseeable to ∆ at time of crime are irrelevant to ∆’ “personal responsibility and moral guilt” and therefore can’t justify DP.  2) quantity and quality of victim impact evidence sufficient to turn life sentence into DP is not defined until after crime has been committed and therefore can’t be applied consistently in cases. o Allows a jury to hold ∆ responsible for whole array of harms he could not foresee and for which is not therefore blameworthy. o Only function is to divert jury’s attention away from ∆’s background and record, and circumstances of crime. Notes (pp.599-601): o Response to Payne –  Payne holds that victim impact evidence and argument does NOT violate 8th Amendment, but does NOT hold that victim impact evidence must be admitted, or even that it should.


 Although constitutional, victim impact evidence is not admissible
unless state or fed capital sentencing law provides for its use.

 Virtually all jurisdictions permit intro of some form of it… o Victim Impact Evidence –  In addition to or in lieu of victim impact testimony, prosecutors in
some jurisdictions have introduced victim impact videos at penalty phase. • Videos generally a narration of victim’s life with music and video clips/photos. May include interviews and scenes of grave.  Most courts to rule on question have approved use of such videos. o Kelly case (video watched in class) –  Prosecution played 20 minute video of montage of birth -19. 3 justices dissented from denial of certiorari. Stevens said that videos’ “moving portrayal of lives of victims added nothing relevant to jury’s deliberations and invited a verdict based on sentiment, rather than reasoned judgment.”  Argues it’s irrelevant because doesn’t go to ∆’s character OR circumstances of the crime. In some senses quantifying the harm.

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GA Victims’ Rights Statute § 17-10-1.2 Admissibility of certain evidence subsequent to adjudication of guilt: o Has section dealing with DP trials. Court has let in evidence about emotional impact. o “Court shall allow evidence from family of victim, or such other witness having personal knowledge of victim’s personal characteristics and emotional impact of crime on victim, victim’s family, or community.” Such evidence shall be given in presence of ∆ and of jury and shall be subject to cross-examination.” o Evidence may be in form of, but not limited to, written statement or prerecorded audio or video statement, provided witness subject to crossexam and evidence not available to jury during deliberations. Livingston v. State (1994) – o Uphold constitutionality of § 17-10-1.2. Do so because legislature has employed sufficient safeguards within the state to ensure that victim impact evidence will not be admitted which reflects factors which this court has found constitutionally irrelevant to DP sentencing, and which could result in the arbitrary and unconstitutional imposition of the DP. o Trial court must hear and rule prior to trial on the admissibility of victim impact evidence sought to be offered. o State gives trial court discretion to exclude victim impact evidence altogether, limits evidence related to impact of offense upon victim’s family or community, and states it will be permitted only in such a manner and to a degree such as not to inflame or unduly prejudice the jury. Turner v. State (1997) –

o Procedure used by state and trial court in this case has much to commend
it. Enable jury to hear evidence allowable under § 17-10-1.2 but also ensures evidence that might be unduly prejudicial is not admitted. o By providing copy of statement to defense and court before sentencing phase, trial court may ensure statement doesn’t contain highly inflammatory statements. Because witness reading prepared statement, witness is less likely to lose control and inadvertently offer highly emotional and potentially prejudicial testimony. Tollette v. State (2005) – o In pretrial hearing, prosecutor presented victim impact evidence it intended to present at trial, including short videotape of victim alive. o OCGA § 17-10-1.2 permits evidence from family of victim, or such other witness having personal knowledge of victim’s personal characteristics. o Court holds that such evidence encompasses a silent videotape of victim in life. Language in OCGA § 17-10-1.2 providing that such evidence shall be subject to cross-examination is satisfied when person identifying a videotape of victim is subject to cross-exam. Kelly v. California (2005) – Stevens dissenting from denial of certiorari o Dealing with aforementioned video with montage of victim’s life. Remains convicted that views expressed in Payne dissent are sound, and per se rule announced in Booth is wiser and more faithful to rule of law than recent jurisprudence… o These videos are far cry from written victim impact evidence at issue in Booth and brief oral testimony of Payne. They exceed the “quick glimpse” Court’s majority contemplated when they overruled Booth in 1991. o Here, victim impact evidence enhanced with music, photographs, video footage. Risk of unfair prejudice overwhelming. Videos added nothing to jury’s deliberations and invited verdict based on sentiment, rather than reasoned judgment. Kelly v. California (2005) – Breyer dissenting with denial of certiorari o Film’s personal, emotional and artistic attributes create legal problem. Render film’s purely emotional impact strong, perhaps unusually so. Those aspects of film (music, artistic images) tell jury little or nothing about crime’s circumstances. o Minimal probity coupled with video’s purely emotional impact that may call due process protections into play.

Capital Punishment Part 6 April 14- April 21 Chapter 7 – The Defendant and Defense Counsel  April 14: pp. 384-408, the Role of Defense Counsel: Godinez v. Moran and Strickland v. Washington Godinez v. Moran (1993)  • Facts:


o ∆ killed 3. After plead not guilty, trial court ordered him to be examined by
pair of psychiatrists, both of whom concluded he was competent to stand trial. o 2 ½ months later, informed court wished to plead guilty and discharge attorneys in order to prevent presentation of mitigation evidence at his sentencing. o Trial court found that respondent “knowingly and intelligently waived his right to assistance of counsel, and his guilty pleas were freely and voluntarily given.” o ∆ filed petition for post-conviction relief in state court. Claimed that he was mentally incompetent to represent himself and change his pleas… Issue: o Whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial? Rules: o Criminal ∆ may not be tried unless he is competent. May not waive his right to counsel or plead guilty unless he does so “competently and intelligently.” o Standard for competence to stand trial is whether the ∆ has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and has a “rational as well as factual understanding of the proceedings against him.” o ∆ choosing self-representation must do so “competently and intelligently, but technical legal knowledge is not relevant” to determination whether he is competent to waive his right to counsel. Holding: o It is not higher. The standard is the same… Reasoning: o Court can conceive of no basis for demanding a higher level of competence for those ∆s who choose to plead guilty or waive right to counsel. No reason to believe it requires a higher level of mental functioning than decision to waive other constitutional rights. o A finding that ∆ is competent to stand trial is not all that’s necessary before he may be permitted to plead guilty or waive right to counsel. Trial court must satisfy that the waiver of his constitutional rights is knowing and voluntary. “Heightened standard” for pleading guilty and for waiving right to counsel, but not a heightened standard for competence. Dissent (Blackmun and Stevens): o ∆ clearly under influence of drug given to him. Finding that ∆ is competent to stand trial establishes only that he is capable of aiding his attorney in making the critical decisions at trial or in plea negotiations. Reliability or even relevance of such a finding vanishes when its basic premise, that counsel will be present, ceases to exist. o Question no longer whether he can proceed with an attorney, but whether he can proceed alone and uncounseled…

• •

• •


o Competency for one purpose doesn’t necessarily translate to competency
for another purpose.

Notes p.393: o Competence to represent oneself –  In Indiana v. Edwards: the Ct considered whether a ∆ found competent to stand trial could be found incompetent to represent himself. Trial court, in a non-capital case, held that the ∆ was competent to stand trial, but denied his request to rep himself on the ground that he was not competent to defend himself. USSC found that there was no const violation, distinguishing Godinez on 2 grounds, 1) Godinez concerned the competence of a D who wanted to plead guilty, not, as in the case at bar, a D who wanted to go to trial, AND 2) Godienz held only that a state may permit a mentally ill D to plead guilty, but did not decide the converse, whether a state may deny a mentally ill D the right to rep himself. o Burden of Proof on Incompetence –  In 2 cases, USSC has set forth constitutional rules regarding the burden of proof for incompetence. Burden of proof often of paramount importance since party bearing burden of proof bears risk of erroneous decision.  Medina v. CA – • Court held that state may presume ∆ is competent and require him to shoulder burden of proving his incompetence by preponderance of evidence.  Cooper v. OK – • Court held that although state may presume ∆ is competent, it may not require that ∆ prove his incompetence by clear and convincing evidence. Court held that because rule allowed state to try a ∆ who was more likely than not incompetent, it threatened the basic fairness of the trial itself in violation of due process clause.

Strickland v. Washington (1984)  • Facts: o ∆ waived right to jury even though counsel advised him not to. Plead guilty to all charges. Attorney felt hopeless about overcoming evidentiary effect of respondent’s confessions to the crimes. o ∆ attorney at sentencing argued ∆’s remorse and acceptance of responsibility should justify sparing him from DP. Also argued lack of criminal activity and extreme mental and emotional disturbance. DIdn’t cross-exam med experts. o Trial judge found numerous aggravating circumstances and no or single mitigating circumstance. o ∆ challenged • Issue:


o What are the proper standards for judging a criminal defendant’s
contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective?


o 6th Amendment right to counsel exists and is needed in order to protect
the fundamental right to a fair trial. Constitution guarantees fair trial through the DP clauses, but it defines the basic elements of a fair trial largely through the several provisions of the 6th Amendment, including the Counsel Clause. Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. o Court has held that with certain exceptions, person accused of fed or state crime has right to counsel appointed if retained counsel cannot be obtained. That a person who happens to be an attorney is present at trial is NOT enough to satisfy constitution’s 6th Amendment right to counsel because it sees attorneys playing a role that is critical to the ability of the adversarial system to produce just results.  An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. o Standard of attorney performance – right to counsel is right to EFFECTIVE assistance of counsel.  Representation of a criminal ∆ entails certain duties, but list is not exhaustive (p.402). The performance inquiry must be whether the attorneys’ assistance was reasonable considering all the circumstances.  No particular set of rules can be used to define appropriate attorney conduct. Holding: o SC held that: a convicted ∆’s claim that attorney’s assistance was so defective as to require reversal of DP has 2 parts (need both) –  1) counsel’s performance must be so deficient (∆ must show this, that attorney made errors so serious that counsel was not functioning as the counsel guaranteed the ∆ by the 6th); and  2) the deficient performance must have prejudiced the defense so as to deprive the ∆ of a fair trial (a fair trial is a trial whose result is reliable). o In making a showing of deficient performance, the ∆ must demonstrate that counsel’s representation fell below an “objective standard of reasonableness” (reasonableness of prevailing professional norms). The Court also noted that to show prejudice, the ∆ must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.”  Here, Court reasoned that Mr. Washington’s counsel was not unreasonable. Moreover, the Court stated that even if counsel was


unreasonable, counsel’s conduct did not cause sufficient prejudice to Mr. Washington to warrant setting aside his DP.

Reasoning: o How judges may assess claims of ineffective assistance of counsel –  Highly deferential: every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of attorney’s challenged conduct, and to evaluate the conduct from counsel’s view at the time. Ct must have strong presumption that counsel’s conduct falls w/in wide range of reasonable professional assistance, that the D must overcome the presumption that, under the circumstances the challenged action might be considered sound trial strategy.  A ct deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted D making a claim of ineffective assistance must id the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Ct must then determine whether, in light of all circumstances, the id-ed a/o were outside the wide range of professionally competent assistance. In making determination, ct should keep I mind that attorneys’ function is to make the adversarial testing process work in the particular case. At the same time, the ct should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.  Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.  Reasonableness of attorney’s actions may be determined or substantially influenced by Ds own statements or actions.  An error by attorney, even if professionally unreasonable does NOT warrant a setting aside the judgment of criminal proceeding if the error had no effect on the judgment. In making determination whether errors resulted in required prejudice, ct should presume that judge/jury acted according to law. So actual process of decision, if not part of record of the proceeding under review should not be considered in prejudice determination.

April 15: pp. 408-432, Wiggins v. Smith and Rompilla v. Beard and notes Wiggins v. Smith (2003)  • Issue: o Did the US Ct of Appeals err in upholding MD Ct of Appeals’ rejection of ∆’s claim that his attorneys’ failure to investigate his background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings violated his 6th Amendment rights?


Holding: o Yes, case thus remanded. o Available mitigating evidence, taken as a whole, might well have influenced the jury’s appraisal of ∆’s moral culpability, so court reverses. Facts: o Opening statement mentioned his clean record, but no other introduction of ∆’s history/family background for the rest of trial. ∆ was sexually abused, starved (paint chip case). Judge said that he couldn’t remember a capital case where counsel had not compiled a social history of the ∆, but this court ended up denying ∆’s petition for post-conviction relief. o MD Ct. of App affirmed denial… Rules: o Under Antiterrorism and Effective DP Act of 1996 (AEDPA), ∆ would be entitled to relief only if he showed that the state court decision was contrary to, or involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts. o Under Strickland, a ∆ must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a ∆ must show that attorney’s representation fell below an objective standard of reasonableness. o Test here –  Whether the investigation supporting counsel’s decision not to introduce mitigating evidence of ∆’s background was itself reasonable (NOT whether attorney should have presented a mitigation case). o Rule: in assessing the rzbness of an atty’s investigation, a ct must consider not only the quantum of evd already known to counsel, but also whether the known evd would lead a rzb atty to investigate further. Even assuming that attys ltd the scope of their investigation for strategic reasons, Strickland does NOT estb that a cursory investigation automatically justifies a tactical decision w/ respect to sentencing strategy. RATHER: a reviewing ct must consider the rzbness of the investigation said to support that strategy. o Strickland rule: strategic choices made after less than complete investigation are rzb precisely to the extent that rzb prof judgments support the limitations on investigation. Reasoning: o Here, ∆’s decision to limit the scope of their investigation into potential mitigation evidence was deficient performance. o Record shows attorney’s investigation came from 3 sources –  shrink (test said nothing about life history)  presentence investigation report with 1 page summary of miserable life,  and department of social services (∆’s many placements). o Attorneys’ decision NOT to expand investigation beyond PSI and DSS fell short of the professional standards that were in MD at the time.


 Professional standards in practice at that time in MD for capital
cases included prep of social history report. Funds were available for this but attorney didn’t use them.  Scope of search also unreasonable in light of what DSS said. Attoreny should’ve concluded that it WOULD be productive to search mitigating… o Also fell short of ABA (which we have long referred to as guides to determine what is rzb): that investigations into mitigating evd should comprise efforts to discover all rzbly available mitigating evd and evd to rebut any agg evd that may be introduced by Pros.  Until the ct denied motion to bifurcate, atty should have been making most powerful mitigation case possible. o State ct erred bc didn’t conduct assessment of whether the decision to cease all investigation upon getting PSI and DSS records actually showed rzb prof judgment. So ct also erred in giving deference to atty strategic decision not to present every conceivable mitigation defense since atty decision based on unrzb investigation. o If state court had found that atty’s investigation extended beyond the PSI/DSS then AEDPA would require that we defer to that finding. But investigation was ONLY psi/dss docs. Rqs for habeas relief under AEDPA are satisfied. o Strickland claim here – YES  For attys inadequate perf to constitue a 6th A violation, D must show hat atty’s failures prejudiced his defense. In Strickland: to estb prejudice, a D must show that there is a rzb probability that, but for counsel’s unprof errors, the result of the proceeding would have been dif. A rzb probability is a probability suff to undermine confidence in the outsome. In assessing prejudice, we reweigh the evd in aggravation against the totality of available mitigating evd. Dissent (Scalia, with Thomas): o MD ct of A DID decide that counsel looked beyond PSI/DSS and we must defer to that finding. Maj’s holding on the issue of deficient pref is not alone enough to entitle D to habeas relief on his 6th A claim. D still must estb that he was prejudicded by his atty’s error. D must show that, if his attys had retained a licensed social worker to assemble his social history, there is a rzb prob that 1) his attys would have chosen to present the social history evd to jury AND 2) upon hearing that evd the jury would have spared his life. And WE don’t find that rzb prob.

Rompilla v. Beard (2005)  • Issue: o Is attorney bound to make reasonable efforts to obtain and review material counsel knows prosecution will rely on as evidence of aggravation at the sentencing phase of trial? • Holding: o Held: even when a capital D’s family members and the D himself have suggested that no mitigating evd is available, his atty is bound to make rzb efforts to obtain and review material that counsel knows the pros


will probably rely on as evd of aggravation at the sentencing phase of trial.


o Atty did talk to family and D, but didn’t follow other avenues: specifically
Ds prior conviction. D atty knew Pros was going to use this, the rape VS testimony and such, but atty never looked at the file until warned by Pros. Similar crime too, so very convincing evd presented by state and D had no plan to rebut. Rules:

o Use of Strickland again: in judging defense’s investigation, hindsight is
discounted by pegging adequacy to counsel’s perspective at the time investigative decisions are made, and by giving a heavy measure of deference to counsel’s judgments. “in counsel’s shoes.” Reasoning: o Obviously, attorney was not in line with ABA standard.  “It’s duty of atty to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure info in the possession of the Pros and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the atty of facts constituting guilt or the accused’s stated desire to plead guilty. o Unrzbness of not reading file was heightened by fact that is was so easily attainable at trial courthouse. o Bc state ct found representation fine, they never reached prejudice prong (whether there is a rzb probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been dif). So we examine this element of Stickland claim de novo. And HOLD: D has shown beyond a rzb doubt that counsel’s lapse was prejudicial. Mitigating evd, taken as a whole, might well ahev influenced the jury’s appraisal of Ds culp (Wiggins)and the likelihood of a dif result if the evd had gone in is suff to undermine confidence in the outceom actually reached at sentencing. O’Connor (concurring): o Majority holding reaffirms Strickland case-by-case approach to deciding if attorney performance was unconstitutionally deficient under Strickland. o Here, ∆’s attorneys fall short of that standard because behavior is not reasonable considering all the circumstances. Notes after – o Ake v. OK –  What resources must the govt provide to the indigent D in addition to counsel? SC HELD: the denial of a shrink evaluation violated the Ds DP rights in 2 ways 1) he was deprived of his opp to present an insanity defense at the guilt phase, and he was prevented from rebutting the state shrinks’ testimony at the penalty phase.


o Bell v. Cone –  Issue of presumed ineffectiveness – when counsel entirely failed
to subject the prosecution’s case to meaningful adversarial testing. April 19: pp. 432-457, Schriro v. Landrigan, Mickens v. Taylor Schriro v. Landrigan (2007)  • Issue: o Was ∆’s counsel inefficient because should’ve investigated the “biological component” of his violent behavior by interviewing his biological father and other relatives? o Did this inadequate investigation prejudice the outcome of sentencing? • Holding: o Held: DC did NOT abuse its discretion in refusing to grant evidentiary hearing. (in cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing, the decision to grant such a hearing rests in the discretion of the DC) • Facts: o Facts: D instructed his atty to NOT bring up any mitigating circumstances. D said he’d be fine with dp in ct. judge, still, found two nonstatutory mitigating. Ct sentenced D to death. Later D filed habeas petition alleging atty failure to explore additional grounds for arguing mitigation evd. That atty should’ve talked with biological father who could confirm that his mom drank during pregnancy. • Rules: o Under AEDPA, the DC has the discretion to grant an evidentiary hearing if, giving deference to the state ct decision, the D has alleged a colorable claim, if an evidentiary hearing could enable the D to prove factual allegations which if true would entitle D to fed habeas relief. WE HOLD that Dc was WELL w/in discretion to find that even w/ the benefit of an evidentiary hearing, D could not develop a factual record that would entitle him to habeas. • Reasoning: o D plainly told atty not to present mitigating and this statement did NOT only apply to ones atty was considering (mom and ex) bc mom would offer evd overlapping with that which D wants to bring in new AND D interrupted anytime atty tried to intro mitigating. D would have undermined ANY presentation of mitigating evd that atty would uncover. o Bc of all this D couldn’t show prejudice even if got evidentiary hearing. • Dissent (Stevens/Souter/Ginsburg/Breyer): o Significant mitigating evd was unknown at time of sentencing, years later D learned that he had serious mental issues that could shed light on his past actions. rzb this mitigation evd was unavailable was bc atty failed to do const adequate investigation. Angry with maj “would have” language = guess work.


o List of evd that atty failed to investigate is long: no family history, no shrink
eval. This fell below an objective std of rzbness. So only issue left is whether attys inadequate investigation prejudiced outcome of sentencing? o Maj arg of: DC finding that D waived his right to present any and all mitigating evd, has no supporting the Const  Long held: Ds waiver of his trial rights cannot be given effect unless it is knowing and intelligent and voluntary.  And D’s statements did not constitute a knowing and intelligent waiver under the ct’s precedents. If waiver, then waiver is product of atty bad investigation. o Even if D knew all shit about childhood/alcoholic mom, we cannot assume that he could understand their consequences in the way an expert shrink would. And bc atty didn’t do proper investigation, D didn’t know this impt evd was available to him. Unless D knew of the most significant mitigation evd available to him, he could not have made a knowing and intelligent waiver of his const rights o Ds bad behavior and listed convo with judge deos NOT estb that D would have waived right to present other mitigating evd if his counsel had made it available to him. Discussion only about birth mom and ex, nothing about “mitigating evd” in general. Mickens v. Taylor (2002)  • Issue: o What ∆ must show in order to show a 6th Amendment where trial court fails to inquire into potential conflict of interest about which it knew or reasonably should’ve known? o ONLY question presented today was the effect of a tc’s failure to inquire into a potential conflict upon the Sullivan rule that deficient perf of counsel must be shown. • Holding: o It was necessary, for ∆ to avoid conviction, to establish that the conflict of interest adversely affected his counsel’s performance.  Court of App found no such effect, so denial of habeas relief affirmed. • Facts: o ∆’s claim – That he was denied effective assistance of counsel bc one of his ct appointed attys had a conflict of interest at trial. That atty was representing the victim on assault and weapon charges at time of murder. 2 days after that atty excused from V’s case bc V was dead, he was assigned Ds case for Vs murder.atty didn’t tell court he had previously represented the V. D learned about atty prior rep when clerk gave wrong file, bc juvie files supposed to be confidential. C of A affirmed the DC’s denial of habeas relief. WE AFFIRM C oF A, no habeas relief granted. • Rules: o General rule: D alleging 6th A violation must show a rzb prb that, but for counsel’s unprof errors, the result of proceeding would have been dif.


 Exception to general rule: spare the D the need of showing
probable effect upon the outcome, and have presumed effect, where assistance of atty has been denied entirely or during a critical stage of proceedings. Circumstances of this magnitude may arise when Ds atty actively represented conflicting interests.  Holloway: automatic reversal rule only where defense counsel is forced to rep cods over his timely objection unless the Tc has determined that there is no conflict. Std: requires proof of effect upon rep but (once such effect is shown) presumes prejudice, already creates incentive to inquire into potential conflict.  Sullivan: absent an objection, a D must demonstrate that a conflict of interest actually affected the adequacy of his rep. tc must look into multiple rep only when the tc knows or rzbly should know that a certain conflict exists.  Wood: tc grant new revocation hearing if ti determined that “an actual conflict of interest existed”, w/o requiring further determination that conflict adversely affects attys performance. BUT we think this quote meant a conflict that affected attys performance Reasoning: o Case argued on assumption that sullivan would be applicable, requiring showing of defective perf, but NOT requiring in addition (as Strickland does in other ineffectiveness of counsel cases) a showing of probable effect upon the outcome of trial. That assumption was not unrzb in light of the holdings of ct of a, which have applied sullivan to many atty ethical conflicts (book deal, obligation to former clients, fear of angering judge)  BUT language of Sullivan dos NOT support such broad reading. o Important to distinguish Sullivan/Holloway from Strickland.  Breach of ethical std does not necessarily make out a denial of the 6th A guarantee of assistance of counsel. Dissent (Stevens): o Atty duty to disclose his rep of a client related to the instant charge is obvious but old as profession, too. o Fiduciary rship btw atty and client survives clients death so atty labored under conflicting obligations. o It is solemn duty of the judge before whom a D appears w/o counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of this const right at every stage of the proceedings. Duty with respect to indigent Ds is far more important than judges duty to investigate the possibility that a conflict arises when retained atty reps either multiple or successive Ds. This duty is on judge even when request is not made. Dissent (Breyer): o This case isn’t governed by Holloway/Sullivan shit. This is kind of representation incompatibility that is egregious on its face. And exacerbated by fact that this was cap murder case where Vs character evd may easily tip the scale of jury choice btw life or death.


April 21: pp. 457-472, Murray v. Giarratano, right to counsel in collateral Murray v. Giarratano (1989)  Right to Counsel in collateral (habeas proceedings) • Issue: o Prisoners claimed, based on several theories, that the Constitution required that they be provided with counsel at the Commonwealth’s expense for the purpose of pursuing collateral proceedings related to their convictions and sentences. o Whether VA’s procedure for collateral review of capital convictions and sentences assures its indigent death row inmates an adequate opportunity to present their claims fairly? • Holding: o Appointment of counsel upon request is NOT necessary for the prisoners to enjoy their const right to access to the cts in pursuit of state habeas relief. o No inconsistency between holding of Bounds and Finley; the holding of neither squares with present case. o Now hold that Finley applies to those inmates under sentence of death as well as to other inmates, and that holding necessarily imposes limits on Bounds. o Rule of Finley should apply no different to capital cases than noncapital. Additional safeguards imposed by 8th Amendment at the trial stage of a capital case are sufficient to assure the reliability of the process by which the DP is imposed. • Facts: o D prisoner complaint against Director of VA Dept. of Corrections. Death row prisoners bringing claim. o Cts below went contrary to recent decision in Finley and misread bounds.  Finley held: DPC or EP guarantee of meaningful access did NOT require state to appoint counsel for indigent prisoners seeking state postconviction relief. 6th and 14th A right of indigent D to counsel at trial stage of criminal proceeding and for initial appeal of judgment and sentence of tc. BUT right to counsel at these early stages does not carry over to discretionary appeal (trial: atty is the Ds shield, appeal: atty is sword to upset prior deterimination of guilt). So held in Finley that there was no fed const right to counsel for indigent prisoners seeking postconviction relief. finley NOT about dp though, so ppl argue the reasoning that death should be dealt w/ specialy (locket: requires a greater degree of reliability when it is imposed) BUT these holdings dealth with trial stage of capital murder.  Smith v murray : held that fact that dp has been imposed requires a dif std of review on fed habeas. Direct appeal is primary avenue for review of a conviction or sentence, and dp cases are no exception. So non capital finley rule should apply to capital cases, and finley rule imposes limits on Bounds case holding.


 The additional safeguards imposed by the 8thA at the trial stage of
a cap case are suff to assure reliability ot the process by which the dp is imposed.

Reasoning: o VA may sensibly decide to concentrate the resources it devotes to providing attorneys for capital ∆s at the trial and appellate stages of a capital proceeding. Capable lawyering there would mean fewer colorable claims of ineffective assistance of counsel to be litigated on collateral attack. Concurring in judgment (Kennedy, with O’Connor): o Unlike Congress, Court lacks capacity to undertake searching and comprehensive review called for in this area. o While VA has not adopted procedures for securing representation that are as far reaching and effective as those available in other States, no prisoner on death row in VA has been unable to obtain counsel to represent him in postconviction proceedings, and VA’s prison system is staffed with institutional lawyers to assist in preparing petitions for postconviction relief. o No prepared to say this scheme violates Constitution. Dissent (Stevens, with Brennan, Marshall and Blackmun): o Right question in this case is not whether there is an absolute “right to counsel” in collateral proceedings, but whether due process requires that these respondents be appointed to counsel in order to pursue legal remedies. 3 difs btw this case and Finley show that even if it is permissible to leave an ordinary prisoner to his own resources in collateral proceedings, it is fundamentally unfair to require an ingident death row inmate to initiate collateral review w/o counsel’s guiding hand. 1) in these case, ppl condemned to die. Unique thing about dp requires more legal counsel, 2) VA law shit, 3) plight of death row inmate constrains his ability to wage collateral attacks far more than does the lot of the ordinary inmate considered in Finley. o To obtain an adequate opportunity to present their postconviction claims fairly, death row inmates need greater assistance of counsel than VA affords them. o Meaningful access, and meaningful judicial review, would be effected in this case only if counsel were appointed, on request, in time to enable examination of the case record, factual investigation, and preparation of a petition containing all meritorious claims, which the same attorney could then litigate to its conclusion. Notes  o Access to counsel in state post-conviction proceedings:  w/o fed const right to appointed counsel in state post conviction proceedings, the right to counsel is determined by state law. states differ greatly. Issue with it though in money with state funding. o ABA guidelines for appointment and performance of ∆ counsel in DP cases:


 Appointment: that each dp jxn develop a plan to provide high
quality legal rep in dp cases. Defense team of 4 professionals: 2 attys, investigator, mitigation specialist. One certified to screen D for mental issues.etc. capital defense must be adequately funded. (help economy of state to rid of dp then!)  Performance: prompt and regular contact with client. Always explore settlement of case and pleas.


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