GREGG v. GEORGIA

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Argument of G. Hughel Harrison

Chief Justice Warren E. Burger: We will hear arguments next in 74-6257, Gregg against Georgia.

Mr. Harrison you may precede when you are ready.

Mr. G. Hughel Harrison: Mr. Chief Justice and may it please the Court.

I am Hughel Harrison from Lawrenceville, Georgia and I represent Troy Leon Gregg who is now under two death sentences for murder.

Originally he was tried on two murder charges plus two armed robbery cases.

The Georgia Supreme Court on its review of the case, set aside the death penalties as to armed robbery and that the -- for two grounds.

That the armed robbery had been used as a aggravating circumstance on the murder cases and that the death penalty was disproportionate for the punishment of this crime.

Gregg was tried under a 1973 Law in Georgia that made some changes in our death penalty.

It is interesting to note that only one offense and that of perjury was deleted.

The general assembly provided for a bifurcated trial under which at the first phase, you would determine guilt or innocence and that only.

Then that same jury was to consider the punishment that would be imposed and we submit that in this area, we still have some of the arbitrariness and the discretion and that we do not meet the Furman standard.

In the 1973 law, there were ten enumerated statutory aggravating circumstances.

Those are set out and I believe they are set out in the brief for the respondent in that the appendix was not printed on the appellant's -- petitioner's brief.

Those are specified and referred to as the statutory aggravating circumstances.

At this phase of the trial, the trial judge must determine which of those he will submit and in addition the jury, as I understand the law, can consider other aggravating circumstances to use the language as authorized by law.

Nowhere does the statute make any definition of a mitigating circumstance.

It is completely silent.

Now, in this case when we proceed, with the senates in phase and after instructions and these instructions are required to be carried out with the jury and the jury make its finding and indicate what the aggravating circumstances are.

This record reveals that, if I recall correctly, some three were submitted.

The jury returned its verdict and made its recommendation of death which was binding upon the court when that recommendation is made, so the substantive change in our law.

Before that the jury made its finding.

If it made a recommendation of mercy then only life sentence could be imposed, and if it returned the verdict of guilty in these cases then it was the automatic death sentence.

Now, then 73 law provide for an appeal.

This is in addition to our review, a statutory review.

This was in addition to the usual and normal appeal which was done in this case and it is submitted that, while this is desirable, it does not cure some of the discrepancies and arbitrariness of Furman.

In this, the trial court is required to submit to the appellate court, his evaluation, shown on appendix B of the brief for the respondent.

I would direct the Court's attention to this because it illustrates the effect of action in the trial court level on the appellate court.

One of the issues in this case was, in this report says -- number seven on page 3B on the end, was an evidence of mitigating circumstances.

The trial court says no.

This removes from consideration, the evidence that was adduced in this case and where there was a written statement, exculpatory in nature taken at the time of the arrest.

This removed and I submit removed it in the appellate level.

It must be remembered that in this case and I think, I would apologize for going into the evidence to this point, but upon arrest in North Carolina, Gregg made a statement to the Georgia authorities when they questioned him about what had happened.

It was exculpatory in nature and that he said there was a fight and he did it in self defense.

There was evidence in the record, including the lip of one Sam Allan and some evidence as to some abrasions on the hands of one of the victims, but Gregg was carried from Asheville down Inter State 85, past the most direct route to Lawrenceville.

Sometime before daybreak early in the morning in the presence of and after having been transported from Asheville to this area, with the District Attorney, the prosecuting officer in the back seat with and Gregg under handcuffs, the other passenger in that car being the Chief of the County Police of Rennet County and one of the detectives that, that in two hours turned around and proceeded back north to the scene and it is supposed to be that detective Barnett said that there was a restatement or reenactment of what happened.

They also testified that the Chief of Police told Gregg that this is the way it happened, (Inaudible).

Gregg is supposed to have said yes, but this record reveals that Gregg refused to sign a statement.

Gregg denied it on the trial of the case, but this removes entirely we submit, any consideration of the mitigation -- mitigating circumstances.

Now, where does that leave us?

I objected strenuously, tied to keep this evidence out, notwithstanding this, on the trial of this case when it was charged, the effect of the charge in this case is to submit to this jury the question you either acquit him or you convict him.

The lesser included defenses of manslaughter or even the statutory right of a jury to find and attempt, even if a crime was committed, affectively deprived the jury of any discretion, except you either find it as a murder or justifiable homicide, that is what the charge is in this case.

Chief Justice Warren E. Burger: So, it deprived him of an opportunity to find him not guilty to acquit him totally?

Mr. G. Hughel Harrison: No sir, certainly I think there is a --

Chief Justice Warren E. Burger: (Inaudible) factor is always there, is it not?

Mr. G. Hughel Harrison: Yes sir, Mr. Chief Justice, but also as a matter of right, I think a jury, at least in Georgia, has a right to convict of a lesser included offense, particularly in a capital case.

That is true in most other felonies, but in the capital cases --

Chief Justice Warren E. Burger: You are (Inaudible) for another separate area apart from the Eighth Amendment argument, I take it?

Mr. G. Hughel Harrison: Not on necessity Your Honor, I think it comes back down to show that whether we use equal protection in this sense of what happened to Allen.

There were two people who were involved in an incidence.

Two people, one suffering the death sentence and one going away with ten years, for no reason, no explainable reason.

Gregg, no prior record, he admitted he killed the people, but he said he did it in self defense.

Jury rejected it and that apparently is in now it is still suffering the death penalty and he is under today, two of them.

Your Honor, we submit that the 1973 law was an attempt to meet firmly and it has not done it.

It still leads that discretion both in the prosecution.

I submit to you, whether it is right or wrong and I would be the first to admit that some discretion must be vested in the prosecuting attorney, we must have it, but is that to be unlimited and is it to have the right to care with it, you live, you die.

Chief Justice Warren E. Burger: Do you take the position that the presence or existence of that discretion is fatal to the Eighth Amendment arguments, you go along with the arguments, in other words of Mr. Amsterdam and others?

Mr. G. Hughel Harrison: I would follow that argument Mr. Chief Justice and particularly to this point, that in the end result, whatever it might -- what process we might have to get to that, that here under this statute, the arbitrariness no guidelines.

Your Honor, there is nothing in the statute of Georgia.

A man can be indicted for murder and before that case is called for trial, the District Attorney can stand up with no reason and (Inaudible), that is the end of the case.

The only limitation is it once it is submitted to a jury then he must have the approval to do it.

Chief Justice Warren E. Burger: But has no power over a (Inaudible)?

Mr. G. Hughel Harrison: Except Your Honor when it becomes really effective in the breast of the court for trial.

Before that case is called for trial, the district attorney can just (Inaudible).

He can determine when he calls it and if he were called.

Now this is --

Chief Justice Warren E. Burger: Did the successor reinstate that to go ahead with the trial?

Mr. G. Hughel Harrison: Sir, I am sorry I did not understood you.

Chief Justice Warren E. Burger: The successor, suppose that county attorney and the prosecutor were removed then by the Governor or some of the process.

(Voice Overlap) and for reelection could they proceed?

Mr. G. Hughel Harrison: Of course, there is that remedy to the ballot box, but had to precede the re-indict and I am sure the argument might be made, well, he does not indict, but for all practical purposes he does, because he attends upon the grand jury, he prepares the indictments and submits them.

There is only Your Honor, only the individual discretion I submit to you.

It is the only limitation on whether or not a District Attorney of what he does.

Just as in this case and they could be no better illustration of it than in this case.

Sam Allan who was with him and under any theory of Georgia law, he is just as guilty as Troy Leon Gregg.

We have no excuse to use him as a state witness, no trade of --

Justice Potter Stewart: He had testified, did he?

Mr. G. Hughel Harrison: No sir, his only appearance in this case was to be brought, adjunct to the courtroom for the purpose of identification, that was all.

Justice Potter Stewart: Verifying him or his identifying your client?

Mr. G. Hughel Harrison: No sir, I believe it was for the purpose of an officer identifying Sam Allan if I recall it correctly on it.

Justice Potter Stewart: My understanding was Allan did not testify?

Mr. G. Hughel Harrison: He did not.

He was just brought to the edge of the courtroom for so he could be seen.

So it was not necessary in the usual thing of turning state evidence is not apparent here.

So this to me is a perfect illustration of it.

Two people, equally Guilty on any theory of law, one with ten, 20 years and the other with the death penalty with no prior record.

Now, Your Honors the 1973 Act has not intended at all and made no change in what happened beyond the appellate level, in the executive clemency.

It is in the area of being in the Court with the prosecutor, with the jury and the Trial Judge, even in his instruction and I do not think we can avoid that in this instance and the uncertainty of what the jury is given to find insofar as aggravating circumstances.

Mr. Justice Powell, you were asking about some of the broadness of the language that was contained in the North Carolina statute.

The code section enumerating this ten, flip on 8A of appendix A, you see we start enumerating these aggravating circumstances.

Justice Potter Stewart: The Appendix to the brief of respondent?

Mr. G. Hughel Harrison: Of respondent, yes.

Number two the offense of murder, rape, armed robbery and kidnapping was committed while the offender was engaged in the commission of another capital felony of aggravated battery, or the offense of murder while is committed while the offender was engaged in the commission of burglary or arson in the first degree.

This was given to this jury.

Three was not given an then four was purported to be given and a comparison of this with what was actually given at leaves much to be desired, but the offender committed the offense of murder for himself or another for the purpose of receiving money are the thing of monetary value.

Your Honors the only proof of the taking of the money, of any money was possibly that contained in the exculpatory statement taken in North Carolina and then they purported a transaction out in the early morning that Gregg denied.

Seven, the offense of murder, rape, armed robbery, kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

Aggravated battery under Georgia law that they could cover almost anything from the touching if it had intend to commit harm.

Justice Harry A. Blackmun: Was this one covered in the instruction?

Mr. G. Hughel Harrison: This was given in the instructions Your Honor.

Numbers two, four and seven were given and they were returned.

Your Honor, I think it is important that here this Georgia statute sets and enumerates these ten and some reference has made as to this being the statutory aggravating circumstances, but in the introduction, there is no limitation on the aggravating circumstances otherwise authorized by law, court law or jurisdiction.

Chief Justice Warren E. Burger: Where?

Mr. G. Hughel Harrison: This is at the top of the page Mr. Chief Justice on the along B27, 25, 34

Chief Justice Warren E. Burger: Is that something you cannot follow?

Mr. G. Hughel Harrison: I think it is -- it creates the confusion of what I have if you are going to enumerate the statutory condition.

Why go back and cover the whole code from A to Z as might be authorized by law and if we are going to do this, either we leave mitigating circumstances undefined anywhere.

Now, is this uncertainty that permeates and we submit that the statute cannot meet the firm indecision.

With that Your Honor, we submit that under this circumstances that in this case, we do not have to go to the ultimate question of the death penalty under Eight Amendment, even though we say that even there we question the sufficiency of proof to justify the taking of human life.

Two wrongs do not make a right.

Whatever a man has done, he pays his penalty and we submit the Court that there is a real Eight Amendment issue and that is not to be tested, but what a General Assembly thinks is to be tested by an interpretation of the constitution.

I would submit that a more proper test and I submit that this Court has consistently held it when you take away a right that the burden not necessarily be upon the person accused.

Traditionally the authority of an individual accused with a crime in this country to stand mute and be clothed with a protection of the constitution.

He does not have to say I am not guilty.

He does not have to say anything, but I am here and he does not have to say that.

That the cloak of the constitution protects it and when we loose sight if this that the state in order to come to remove any facet of and particularly the life, the most precious thing he has that the state must prove it.

I submit in conclusion Your Honor, that the Weems case and the Robinson case and really the Dulles case show that this Court can take and can consider any punishment imposable under the judicial system in this country today and you can place it in the ballots of does it meet the test of the Eight Amendment, without any apology to anyone, anywhere and that is where this comes down to.

The bottom line is, is it justified or had the government proving that it is such a punishment, has it proven that there is such a deterrent that in 1976 that we will continue to impose the death penalty under such conditions when we do not know for sure.

Justice Harry A. Blackmun: You cited among others that Dulles case, did you not?

Mr. G. Hughel Harrison: Yes sir.

Justice Harry A. Blackmun: Because that has some language in it that is not very favorable to your side?

Mr. G. Hughel Harrison: Yes sir, but I believe the theory or the idea there of looking into the punishment is present Your Honor, Mr. Justice.

With that your honors we would ask the Court to reverse this decision to follow the Furman line of cases and that these two death penalties on this young man be reversed.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Harrison.

Mr. Davis.

Argument of Thomas Davis

Mr. Thomas Davis: Mr. Chief Justice and may it please the Court.

I argue on behalf of the state of Georgia.

Briefly at the beginning, I was to address a few of the comments made by Mr. Harrison as to the facts of this case.

I do not wish to re-argue the case factually.

The jury determined beyond a reasonable doubt that Mr. Gregg was guilty of two murders with malice or in the commission of an armed robbery.

Mr. Harrison has intimated that another man involved in the crime for somehow arbitrarily and capriciously not sentenced to death, but given a sentence of ten years.

Mr. Harrison has failed to point out that the other man Mr. Allan involved was 16 years of age and could not have been punished by death in Georgia.

Additionally, there was no evidence to indicate that he had any prior knowledge of Mr. Greggs planning to kill this two men.

In response to this Court's decision in Furman, the General Assembly of Georgia in 1973 enacted a new procedure, a new death statute procedure.

In doing so they allowed controlled discretion.

In complying with this Courts decision in Furman, they eliminated arbitrariness and capriciousness on the imposition as this Court had held was present.

They eliminated that from the imposition of a death sentence.

They did that in several ways.

First, they set out ten aggravating circumstances by statute and as Mr. Harrison says, they are also provided any other aggravating circumstance allowed by law, otherwise allowed by law which simply means any other way in Georgia law, you could find an aggravating circumstance and that to my knowledge is only one other place and only one aggravating circumstance which would be a prior conviction, which is not included in the first statutory aggravating circumstance which provides for prior capital convictions and prior convictions of serious criminal assault brought.

In other words, the District Attorney could present an aggravation and say a prior burglar, however, before death sentence can may imposed, the jury must determine beyond a reasonable doubt, the presence of one of the statutory aggravating circumstances.

It is true that the general assembly did not define mitigating circumstances.

They said mitigating circumstances as otherwise provided by law.

Again, they are referring us back to the general Bifurcated Trial Act which allows that open to the defense counsel to permit him to present evidence of any factor which could legally be considered in mitigation not barred by the constitution rules of evidence and some other general rule.

They provided in a very important part of the procedure for swift and immediate appellate review.

This review was directed to include an examination of the record by the Supreme Court of Georgia, an examination of a trial report which is included, the trial report in this case by the trial judge is included in appendix B to respondent's brief, to determine the presence of any passion prejudice or any other arbitrary factor.

Second, they were mandated by the general assembly of Georgia to determine whether the evidence in fact supported the aggravating circumstance found and third, to examine other cases, to determine whether the senates imposed in that particular case under review was disproportionate, to the senates imposed in other similar cases considering both the crime and the defendant.

A third thing that the General Assembly did was to provide for a bifurcated trial procedure.

They did not do this under this Senate's Act, but it was done before.

Justice Potter Stewart: This was not a bifurcated preceding at the trial, was it?

Mr. Thomas Davis: Yes, Your Honor.

First there was determination of guilt and non-guilt, second was the punishment.

Justice Potter Stewart: With the judge instructing the jury at the second phase giving him for consideration three of the statutory aggravating circumstances and what if any mitigating circumstances and in his report to the appellate court, he said they were not

Mr. Thomas Davis: That is right.

He indicated the -- there was not evidence submitted at the second phase of the trial in mitigation and that I think that is what he had intended by the Court and he saw none in the trial and chief.

Justice Potter Stewart: Was anything proffered on behalf of the defendant?

Mr. Thomas Davis: There was nothing proffered, Your Honor.

His charge to the jury on that point is in respondent's brief at page 15.

He charged him so they could consider in a mitigating circumstances that they saw from the evidence.

Chief Justice Warren E. Burger: (Inaudible) said that there were two stages to, except the preceding that there are sometimes in Georgia which do not call for separate penalty preceding, is that true?

Mr. Thomas Davis: I am not aware of any Your Honor.

In all felony cases the law provides for bifurcated trial.

Justice Lewis F. Powell: What issue is submitted to the jury in Georgia at the second trial?

Mr. Thomas Davis: Punishment.

Justice Lewis F. Powell: Simply that -- I have not read that instruction, what does it say in substance?

Mr. Thomas Davis: The instruction as I pointed out to the Court was just what the court charged in the mitigating factor.

The statute requires that the trial court determine from the evidence presented what statutory aggravating circumstances are warranted.

He then gives those in charge to the jury and any mitigating is presented, warranted by the evidence.

They are also given to the jury in writing.

The jury and of course argument -- counsel before he does this of course is the opportunity for counsel to present additional evidence of aggravation or of mitigation.

Justice Lewis F. Powell: In this case as I understand it, no evidence of mitigating circumstances was offered by the defendant?

Mr. Thomas Davis: That is correct, Your Honor.

Justice Potter Stewart: The jury in bringing in a verdict of recommending death or for bringing in the verdict of the death sentence must include or at least one of the statutory aggravating circumstances --

Mr. Thomas Davis: That is correct, Your Honor.

Justice Potter Stewart: -- as found at least one in this sole state and identify which one --

Mr. Thomas Davis: In writing --

Justice Potter Stewart: -- in writing --

Mr. Thomas Davis: -- beyond a reasonable doubt.

I believe if I understood Mr. Harrison correctly stated that the jury returned or found three statutory aggravating circumstances in this case.

My recollection is they found two.

Three were submitted to them, they refused to find number 7.

A number looking specifically now at the ten statutory aggravating circumstances in Georgia, they are set out at pages 28 and 29 of respondent's brief, a number of these aggravating circumstances have been attacked either by petitioner or amicus on behalf of petitioner as being overly broad, as being meaningless and I want to look at the few of those now.

They attack number three, which says that the act of murder and armed robbery or kidnapping, knowingly creating a great risk of harm or death to anyone in a public place by means of a weapon and so on and endangering the lives of more than one person, that could fit many things, but to understand the Georgia of death statute, one must look at the bare wording of the statute in light of the refinements added by the Supreme Court of Georgia.

The case of Marcus Wayne Chenault versus State, this was the statutory aggravating circumstance was found.

What Mr. Chenault did was to avenues of bad discharge in Atlanta on a Sunday morning during a worship service.

He sprayed the congregation with gunfire, killing two members of that congregation and if I recall correctly wounding others.

Now, the jury had no difficulty in finding statutory aggravating circumstance number three.

On the other hand and the Supreme Court of course had no difficulty in affirming it as being supported by the evidence, however, on the other hand in the case of Joe versus State, it was a case in which the defendant abducted a woman at gunpoint in a shopping center parking lot.

The state sought aggravating circumstance number 3, the Supreme Court of Georgia said no.

The evidence did not support it.

Unknown Speaker: (Inaudible)

Mr. Thomas Davis: They submitted evidence, the jury returned it in the Supreme Court of Georgia.

Chief Justice Warren E. Burger: The Supreme Court can review the specific decision of the jury?

Mr. Thomas Davis: Very definitely.

That, and again the point I am attempting to make of course is that that the entire picture is not present when one looks at the bare wording of these aggravating circumstances.

Under Georgia’s procedure of the Supreme Court play such a major role that to understand them one must view, the refinements added by the Supreme Court of Georgia.

Another statutory aggravating circumstance, they attack as being meaningless and over broad is number seven which involves torture and depravity of mind.

In the case of McCorquodale versus State where McCorquodale tortured a young woman for several hours by use of acid, fire, surgical scissors, kept her alive, it is amazing the woman lived as long as she did, finally breaking her limbs and stuffing her into a trunk.

The jury found aggravating, statutory aggravating circumstance number seven.

There was no problem in affirming that, that would be torture to anyone.

Petitioner in brief or amicus, I may refer to petitioner, when I mean the legal defense fund submitted a brief in his behalf, cites the case of Floyd v. State as an obvious inappropriate use of statutory aggravating circumstance number seven, torture.

Again, the question is overly broad, what is torture?

In the case of Floyd, Floyd in of the home, forced the mother and the daughter who was present to march up and down stairs trying to force from them the location of money, separated them, threatened the mother with cutting fingers of the daughter, walked them together and knelt them down, put the gun to the daughter's head, kissed her goodbye and blew her brains out in her mother's presence and then turning to the mother, blew her brains out, laughing that she put up her hand to shield from the bullet, he thought that was humorous.

The jury filed torture, aggravating circumstance number seven.

They also attacked and interestingly so the aggravated battery.

They cite the case of Mitchell versus State to support the misuse of that and I think one of the law professors they quote, makes the remark that aggravated battery could apply to any one in -- any one murdered that displays simply a base misunderstanding of Georgia law.

Not so and it has never been used in the State, in that manner and again the misunderstanding is demonstrated by Mitchell v. State, they cited, to make the statement cited Mitchell v. State.

The facts in Mitchell, Mitchell entered the grocery store, took the proprietor who was a middle age lady and her young son back to the cooler.

He shoots the young son, he shoots the mother, he leaves.

This one is in the course of a robbery, he leaves he thinks, he better return and make sure that his work is done well, he returns shoots again the son, shoots again twice more the mother.

He killed the son, but he did not kill the mother, even though shot three times, once in the back, the shoulder and the head, she lived to testify against him at his trial.

That was the aggravated battery present in Mitchell, not to the dead son.

Justice Potter Stewart: This statute has been in effect since 1973, Mr. Davis?

Mr. Thomas Davis: Yes.

Your Honor.

Justice Potter Stewart: And that you happen to know how many death sentences have been imposed under it?

Mr. Thomas Davis: By our records 55.

Justice Potter Stewart: And how many of those, if any, have been set aside by Supreme Court of Georgia?

Mr. Thomas Davis: One has been completely set aside.

There have been a number of cases were there where a number of death sentences imposed and they have set various ones of those aside.

The case of Coley v. State is one of they completely vacated the death sentence on the grounds --

Justice Potter Stewart: What do you mean completely compared to what?

What do you mean by that?

Mr. Thomas Davis: For example compared to this case Gregg, Gregg was sentenced to four death sentences by the jury.

Justice Potter Stewart: And they were two sentence, two death sentences, but let us talk then about people not how many sentences imposed on it.

1 out of 55 people who were convicted to death have been sentenced to death, one of those 55, their death sentence was reversed by the Supreme Court of Georgia, is that it?

Mr. Thomas Davis: That is correct.

Justice Potter Stewart: And he got a new trial order or what happened to that case?

Mr. Thomas Davis: There would a new trial as to punishment.

There would be of course (Voice Overlap)

With no possibility of death sentence?

Mr. Thomas Davis: No possibility of the death sentence.

Let me point out for clarity.

When I used the figure 55, There had not been 55 cases in Supreme Court of Georgia.

I was answering the question of how many death sentences were imposed.

The Supreme Court of Georgia has decided 30, 30 or 31 cases.

Justice Potter Stewart: That will involve the co-defendants today or what?

Mr. Thomas Davis: It depends on what stage of the process they are.

Justice Potter Stewart: Some had not yet arrived at the Supreme Court, not been decided --

Mr. Thomas Davis: None have been decided.

Some have been docketed, not decided and some, this 55 figure includes up to two weeks ago.

Justice Potter Stewart: So there are as I understand your answer, 54 people now under sentence of death in Georgia, but some of whose convictions have not yet been reviewed on appeal.

Mr. Thomas Davis: That is correct, Your Honor.

Looking -- leaving the statutory aggravating circumstances and going to the appellant review, In responding to this Court's decision in Furman, the General Assembly of course was faced with the problem of -- with having to remove arbitrariness or capriciousness in fact from their procedure.

The General Assembly determined not to eliminate the Authority of the jury of the trial judge to bring to bare in a case, the community values and their first hand understanding of the facts in that particular case.

They wanted to allow the Judge, the jury, the fact finder to tailor make the punishment to the defendant in that particular case, keeping in mind and reiterating the principle set down by this Court in Witherspoon and in McGautha and at the same time eliminating arbitrariness and capriciousness from the procedure and of course they did that with the statutory aggravating circumstances, but very importantly with the appellant review which mandates as I have stated earlier, the specific review by the Supreme Court of Georgia, for the presence of any arbitrariness factor.

They enunciate passion, prejudice or any other according to statute arbitrary factor, the Court is to examine in detail the record, the trial report which is a number of pages law.

In the trial report there are six questions which deal with whether race was in any way an issue in that case.

Second of course the in-depth determination of whether the evidence supported the aggravating circumstance.

Both of those of course look to the case itself to ensure fairness and non arbitrariness in that particular case.

The third standard and the third thing mandated by the general assembly was to compare this case with the other cases and the statute says other similar cases considering defendant, considering crime and of course the Court has the power, if it finds any of that to vacate the death sentence.

This is in addition of course to normal appellate review.

That was the mechanism or at least a principle mechanism which was placed into the Georgia death penalty procedure to ensure non arbitrariness.

But what does petitioner say to that?

In brief, they point to two cases as being a prime example of arbitrariness on behalf of the Supreme Court of Georgia, they point to the case of Coley, Coley was a rape case, an escaped felon.

He was robbing a store, abducted a woman right there and was apprehended.

He was sentenced to death by the jury.

The Supreme Court of Georgia vacated, just proportion of it.

The case of Coker, an escaped felon, who goes out and enters a home, rapes a young woman who had given birth three before in the presence of her husband, abducts her and he is apprehended.

He has sentenced to death.

The Supreme Court of Georgia affirmed.

What petitioner does not point out to the Court that Coker, the second case had brought convictions for rape and kidnapping, one instance.

Another instance for rape, aggravated assault, another instance of rape and murder, a brutal murder of a young girl that he had raped, these factors were certified and submitted to the jury under statutory aggravating circumstance number one.

I submit there is no arbitrariness there, that there is no lack of reason, there is no lack of justification.

It would seem apparent to anyone of common human understanding, while Coker’s, death sentence was affirmed and Coley’s was vacated.

If I understand the arguments of petitioner and the arguments made yesterday and earlier, what is being complained out under the Eight Amendment is arbitrariness in fact.

Now, as I understand the case of Furman, it did not say that discretion was unconstitutional, but that arbitrariness or system which led to arbitrariness in fact are the wanton and freakish imposition of a death sentence was what was unconstitutional.

If so and if that is the way I understand and I was listening to the way he used the word arbitrary, or arbitrariness and he said spared for no meaningful basis without rhyme or reason, without justification, no rational basis.

If that is the standard, what has been shown about the of Georgia procedure?

Has arbitrariness in fact been demonstrated to any degree?

We maintain that what must be of avoided as is the wanton and freakish imposition, not that everyone who should get a death sentence under a system of justice or concept of justice, that a few escape or have they even shown any one escaping.

It is interesting to note some footnotes in their brief where they try to bracket and compare cases in Georgia and say and one prime one is Gregg, this case, two cold blooded murders and an armed robbery, Gregg sentenced to death.

They cite the case of Brandon v. State, two cold blooded murders and of course of an armed robbery, sentenced to life imprisonment by the jury, imprisonment by the jury.

What they failed to note is that Brandon was fourteen years of age and I seriously ask this Court in considering those cases, in those briefs to look below the surface facts shown.

In almost every case cited, you will see the circumstantial evidence appearing.

You will see the felony murder appearing, not the malice murder, felony murder, confused evidence as to who was the perpetrator, the youth, the question about middle capacity, they appear in every case cited.

The statutory aggravating circumstances in Georgia with the appellate review has led to a group of criminals who have committed horrible, veil, heinous crimes being sentenced to death.

Justice John Paul Stevens: Mr. Attorney General, might I ask what your judgment is on the comparison between this group of 55, who now have received the death sentence as to the pre Furman experience under the statute, would you say that there are more or less death penalties than there were before?

You have a judgment on it.

Mr. Thomas Davis: I really do not, Your Honor, I do not what to --

Justice John Paul Stevens: I do not want you to state if you do not have a thought already in line and secondly could you tell us how many of the 55 are for rape and how many for murder, if you know?

Mr. Thomas Davis: Of the total 55, I could not say.

Of those that have been docketed and have been decided by the court, there are three for rape, one of which is Coker I discussed with this prior, the other two was rape and kidnapping together, a woman who was staked out over five dead, they also had prior capital felony convictions, those are the only verdicts.

Justice Potter Stewart: Any for robbery, I know for these robberies death sentences were set aside as an comparability basis and that would imply that there are no death sentences for robbery, although the statute does provide for it.

Mr. Thomas Davis: The statute provides it.

Looking to fine line added by the Court, the Court had said that that a death sentence for armed robbery in Georgia, in other words, if you took the facts of Gregg, eliminated the two murders, that is disproportionate and a death sentence cannot be imposed, they are none in Georgia that are armed robbery without murder.

Justice Potter Stewart: Did not quite say that it would, that under Georgia law it could never be imposed, no reason why it should, it said that?

Mr. Thomas Davis: Of course what the Court said would have to be considered in light of the facts present in Gregg and of course the same thing with the rape that was present in Coley.

The General Assembly of Georgia of course determined that a death sentence is justified in Georgia and it is needed in Georgia, of course, for a number of reasons.

For deterrents, specific deterrents and general deterrents, we have some of those under death sentence now, who are under life sentences for capital crimes, and committed more capital crimes on escape.

So we have the problem with specific deterrents.

The General Assembly of Georgia as matter of policy has determined that there is a general deterrence by the death penalty.

We respectively submit that the constitution does not demand that the balance of fear weigh more heavily on the citizen than on the potential capital criminal.

We think that petitioner has not demonstrated arbitrariness or capriciousness in Georgia statutory, what is happened under Georgia’s death penalty statute.

As we understand Furman that is what was held to be unconstitutional.

Thank you.

Chief Justice Warren E. Burger: Mr. Davis.

Print this transcript Transcript: 

Argument of Speaker

Mr. Bork: Justice Stewart.

Argument of Justice Stewart

Mr. Stewart: In the first of these cases, Troy Leon Gregg, the petitioner, against the state of Georgia, there is no opinion for the Court, however Mr. Justice Powell, Mr. Justice Stevens and I have filed a joint opinion with the Clerk this morning, which because of the divisions among the court, is the prevailing decision.

In summarizing our opinion in this case I speak as much for Mr. Justice Powell and Mr. Justice Stevens as I do for myself this is I say is a joint opinion.

The issue in this case is whether the impositions of the sentence of death for the crime of murder under the law of Georgia violates the Eight and Fourteenth amendments.

The petitioner Troy Gregg was charged with committing armed robbery and murder.

In accordance with Georgia procedure and capital cases, the trial was in two stages: a guilt stage and a sentencing stage.

The evidence for the prosecution at the guilt stage established that on November 21st, 1973 the petitioner murdered and robbed two men in Gwinnett County, Georgia, and the jury at the end of the trial found that the petitioner guilty on two counts of armed robbery and murder.

At the penalty stage which took place before the same jury, the trial judge instructed the jury that it could recommend either a death sentence or a sentence of life imprisonment on each count.

The judge further charged the jury that in determining what sentence was appropriate, the jury was free to consider the facts and circumstances presented by the parties, if any, in mitigation or aggravation.

Finally, the judge instructed the jury that it would not be authorized to consider imposing the sentence of death unless it first found beyond the reasonable doubt one of three relevant statutory aggravating circumstances.

Finding two of these circumstances, the jury return verdicts of death on each count.

We consider at the outset the basic contention that the punishment of death for the crime of murder is under all circumstance, cruel and un-usual and violation of the Constitution.

For the reasons that Mr. Justice Powell will summarize thoroughly in announcing our opinion in the case of Proffitt against Florida, we reject that contention.

We therefore must consider the specific constitutionality of Georgia’s capital sentencing procedures.

In the wake of this Court’s judgment in the Furman case four years ago, Georgia narrowed the class of murderers subject to capital punishment by specifying ten statutory aggravating circumstances, at least one of which must be found by the jury to exist beyond the reasonable doubt before a death sentence can ever be imposed.

In addition the jury is authorized to consider any other appropriate aggravating or mitigating circumstances.

The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on Trial Court, but it must find a statutory aggravating circumstance before recommending a sentence of death.

These procedures require the jury to consider the circumstances of the crime and other criminal before it recommends sentence.

No longer can a Georgia jury do as Furman’s jury did, reach in finding of the defendants guilt and then without guidance or direction decide whether he should live or die.

Instead the jury’s attention is directed to the specific circumstances of the crime.

Was it committed in the course of another capital felony?

Was it committed for money?

Was it committed upon a peace officer, or judicial officer?

Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons?

In addition, the jury’s attention is focused on the characteristics of the person who committed the crime.

Does he have a record of prior convictions for capital offences?

Are there any special facts about this defendant that mitigate against imposing capital punishment such as his youth or his emotional state at the time of the commission of the crime.

As a result, while some jury discretion still exists, the discretion to be exercised is controlled by player and objective standards so as to produce and so far as possible non discriminatory application.

As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the state’s Supreme Court.

That court is required by statute to review each sentence of death and to determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury’s finding of the statutory aggravating circumstance, and whether the sentence is disproportionate compare to those sentences imposed in similar cases.

In short, Georgia’s new sentencing procedures require as a pre-requisite to the imposition of the death penalty specific jury findings as to the circumstances of the crime and the character of the criminal.

Moreover to guard against, to guard further against a situation comparable to that presented in the Furman case, the Supreme Court of Georgia, compares each day of death sentence with the sentences imposed on similarly situated defendants, to insure that the sentence of death in a particular case is not disproportionate.

The basic concern of the Furman decision centered on those defendants who are being condemned to deaths capriciously and arbitrarily.

Under the procedures before the court in that case, juries were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant.

Left un-guided, juries imposed the death sentence in a way that can only be called freakish.

The new Georgia sentencing procedures by contrast focused the juries’ attention on the particularized nature of the crime and the particularized characteristics of the individual defendant.

While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and must identify at least one statutory aggravating factor before it may impose a penalty of death.

In this way the juries’ discretion is channeled no longer therefore can a jury wantonly and freakishly imposed the death sentence it is always circumscribed by the legislative guidelines.

In addition, the review function of the Supreme Court of Georgia affords additional assurance that the constitutional concerns that prompted our decision in Furman are not present in the Georgia procedure applied in this case.

For the reasons I have summarized, which are set out at considerable lengths in the written opinion the Mr. Justice Powell, Mr. Justice Stevens, and I have filed today, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution.

Accordingly the judgment of the Georgia Supreme Court is affirmed.

Mr. Justice Brennan has filed a dissenting opinion; Mr. Justice Marshall has also filed a dissenting opinion which he will shortly announce orally.

Argument of Justice White

Mr. White: For the reasons stated in an opinion I have filled for myself, the Chief Justice and Mr. Justice Rehnquist, I concur in the judgment and agree that the sentence in this case should be sustained.

Chief Justice, Mr. Justice Rehnquist and I agree with a plurality that the death penalty is not a cruel and unusual punishment under any in all circumstances.

It was not thought to be at the time Eighth Amendment was adopted, and the recent decisions, 35 State legislatures to authorize imposition of the death penalty under various narrowly defined circumstances, we feud any argument the death penalty has become cruel and unusual as our society’s standards of decency have evolved since the Eighth Amendment adoption.

Reasonable men and reasonable legislatures may differ on the question whether the death penalty serves to deter murders or serves any other valid penological interest.

But so long as the penalty is imposed with some reasonable consistency with respect to a given category of murder, resolution of this question at least on the present evidence is simply not for this court but for the States and for Congress who are quite plead to reject capital punishment and phase he has fit.

Petitioner's other major arguments in this case is that the issue of sentencing under the Georgia’s scheme is controlled by such vague and in determinant standards of the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme that was declared invalid in Furman.

Like the puerility, we do not agree.

The Georgia legislature has made an effort to identify those aggravating factors which is considered necessary and relevant to the question whether a defendant convicted of capital murder should be sentenced to death.

It has plainly made an effort to guide the jury in the exercise of the discretion invested in it and we can not accept the naked assertion that the effort is bound to fail because the jury will so often and systematically refuse to follow the guidelines laid down for it.

As the types of murders for which the death penalty maybe imposed become more narrowly defined, and are limited to those which are particularly appropriate as they are in Georgia by reason of the aggravating circumstances requirement, it becomes reasonably to expect the jury even given the discretion not to imposed the death penalty, will impose it in a substantial portion of the cases so defind.

If they do, this can no longer be said that the penalty is being imposed wantonly, freakishly, and so infrequently that it loses its usefulness as a sentencing device.

There is therefore a reason to expect that Georgia’s current system will escape the infirmities which were found to invalidate its previous system under Furman.

In addition to jury guidance, the legislature has also assigned that the Georgia Supreme Court the important role of insuring that capital punishment will not be imposed in a discriminatory or standardless fashion.

There is discretion in the Georgia system to be sure, but at this juncture, we cannot conclude that it threatens to invalidates the statute.

In reaching this result however, the Chief Justice, Mr. Justice Rehnquist, and I, and as I understand Mr. Justice Blackmun who also concurs in the judgment, he is in like posture, do not find it necessary in effect to overrule McGautha v. California, decided only a few terms ago and to demand as a constitutional requirement that capital punishment be imposed only after a separate sentencing proceeding conducted and structured as our brothers Stewart, Powell, Stevens would have it.

For us at least where a first degree murderer is involved, it is enough to be consistent with Furman and with the Eighth and Fourteenth Amendments that the State required the death penalty be imposed with reasonable consistency for a given category of crime.

This the Georgia statute does and we affirm the judgment of the Georgia Supreme Court.

As I have indicated Mr. Justice Blackmun also concurs in the judgment but for the reasons stated in dissent in Furman v. Georgia.

Argument of Justice Marshall

Mr. Marshall: In Furman against Georgia, I concluded that the death penalty is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments and that continues to be my view.

In Furman I concluded that the death penalty is unconstitutional for two reasons: First, the death penalty is excessive; and second, the American people fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable.

Since the decision in Furman, the legislatures of 35 States have indeed enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for the piracy resulting in death.

I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people.

But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot, in of themselves, be viewed as conclusive.

In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of a death penalty.

They are concluded that if they were better informed they will consider it shocking, unjust, and unacceptable.

A recent study has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty

Even assuming however, that the post Furman enactment statues authorizing the death penalty, renders the prediction of the views of an informed citizenry, uncertain basis for constitutional decision, the enactment of these statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive.

An excessive penalty is invalid under the Cruel and Unusual Punishment Clause even though popular sentiment may favor it.

The inquiry here then is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment or whether a less severe penalty such as life imprisonment would do just as well.

The two purposes that sustain the death penalty as nonexcessive in the Court's view are general deterrence and retribution.

In Furman, I canvassed the relevant data on the deterrent effect of capital punishment.

The state of knowledge at that point, after literally centuries of debate, was summarized in the United Nations Committee, which Committee said "It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime."

I concluded in Furman and I conclude today, that the available evidence is simply convincing that capital punishment is not necessary as a deterrent crime in our society.

The other principal purpose said to be served by the death penalty is retribution.

The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers, Stewart, Powell, and Stevens, and that of my Brother White.

It is this notion that I find to be the most disturbing aspect of today's unfortunate decisions.

My brother Stevens -- Stewart, Powell and Stevens, after their following explanation of the retributive justification for capital punishment had this to say:

"The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law.

When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, then there are sown the seeds of anarchy of self-help, vigilante justice, and lynch law."

This statement is wholly inadequate to justify the death penalty.

As my brother Brennan stated in Furman, there is no evidence whatsoever that utilization of imprisonment rather that death encourages private blood feuds and other disorders.

It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.

In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values

There it announces in the strongest possible way that murder is wrong and therefore to be avoided.

Well this contention, like the previous one, provides no support for the death penalty.

It is inconceivable that any individual concerned about conforming his conduct to what society says is "right" would fail to realize that murder is "wrong" if the death penalty was simply reeled through life imprisonment.

"There remains for consideration what might be termed the purely retributive justification for the death penalty that the death penalty is appropriate, not because of its beneficial effect on society but because the taking of a murderer's life is itself morally good."

Some of the language of the plurality opinion appears positively to embrace the notion of retribution for its own and as a justification for capital punishment.

And the opinion of plurality said, "The decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death."

In other words as I understand the argument, society’s judgment that murderer deserves death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out.

It is this latter notion in particular that I consider to fundamentally at odds with the Eighth Amendment.

The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as the plurality reminds us "the Eighth Amendment demands more than a challenged punishment be acceptable to contemporary society."

To be sustained under the Eighth Amendment, the death penalty must be comport with the basic concept of human dignity at the core of the Amendment.

The objection and opposition to it must be consistent with our respect for the dignity of other man.

Under these standards, the taking of life because wrongdoer deserves it surely must fall for such a punishment has as its very basis the total denial of the wrongdoer's dignity, and worth.

The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments, and I therefore respectfully dissent.