WOODSON v. NORTH CAROLINA

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Argument of Anthony G. Amsterdam

Chief Justice Warren E. Burger: Mr. Amsterdam?

Mr. Anthony G. Amsterdam: Thank you Mr. Chief Justice, may it please the Court.

If I may before beginning the presentation of the argument in the Waxton Case, simply speak to three question that came up in the previous questioning and specifically questions asked by Mr. Justice Stewart, Mr. Justice White about Louisiana practice and a California practice.

The mystery about the Louisiana practice is no mystery at all.

It is explicated at page 33 footnote 45,of their brief in Roberts but Louisiana Supreme Court does not review sufficiency of the evidence.

It does use a no evidence test to review sufficiency.

Akin to the Thompson v. Louisville test, whether a new trial motion is filed or not, there is not a question whether the evidence is sufficient to support the verdict, it is a no evidence test.

There is not a great mystery about it, just that they do not review sufficiency in the normal way.

Unknown Speaker: What about the motion for new trial?

Mr. Anthony G. Amsterdam: It does not make any difference.

Unknown Speaker: Well I know but what about in the trial Court on the motion for new trials.

Mr. Anthony G. Amsterdam: Same standard, no evidence standard, not a sufficiency standard.

Second question had to do with the Californian practice.

Chief Justice Warren E. Burger: (Inaudible) putting a trial judge, that puts a trial judge in to rather a tight corner, does it not, to say that having let the case go the jury in the first place with instructions.

He now is called upon in a motion for a new trial to decide that there was no evidence to go to the jury.

That is a little different from a sufficiency test, is it not?

Mr. Anthony G. Amsterdam: I think it merits to nothing more or less than the difference between the Thompson and Louisville Constitutional no evidence test and the standard state sufficiency test.

Chief Justice Warren E. Burger: Would you say then that you are suggesting then that the gloss on their literal test is that it makes it a sufficiency test, is that it?

Mr. Anthony G. Amsterdam: I think that Louisiana law operationally differs from the law in other states and it needed the trial judge nor the appellant Court exercises the degree of scrutiny over the evidence and over the jury that exists in other states, that is a matter of degree.

The question that Mr. Justice Stewart asked about California practice, the reason that they have two stages in California is that some of the special circumstances may not come out at the guilt phase.

For example; the defendant committed an unrelated murder, that is one of the special circumstances, but and other reason for the second phase is that at the first phase the jury may not resolve all of the relevant issues.

For example; a case is punishable by death in California, if it first degree murder.

It is first degree murder if it is either premeditated and deliberated or felony murder.

So what goes to the jury is an alternative submission.

Premeditation, deliberation or felony murder, then they come back at the penalty stage and even if there is no new evidence presented, they now have to answer both questions cumulatively.

And the answer to how they do that is very interesting.

Because in fact, as Mr. Justice White’s question suggested, there are juries and may have done it again and again who have come back at the second phase with a life sparing verdict.

It is inconsistent with their verdict at the first phase.

Cold blooded murders where the defendant’s contention was an alibi, where there is no doubt in the facts of the case that a person whoever he was who committed the crime, intentionally premeditatedly and deliberatedly committed a killing in a course of a robbery.

The jury then goes ahead and points the defendant guilty.

And then it is asked the question at the penalty phase, that the defending premeditatedly and deliberatedly killed and in the course, the felony comes back, no and spares the defendants life.

Now the third question that we came up on the previous arguments that I would just like to mention to Mr. Justice Powell.

Mr. Justice Powell, we do deal in our reply brief at pages three to six with the question of a homicide rape figures about which you are under arrest and I hope the Court would look at our reply briefs treatment of that subject.

Chief Justice Warren E. Burger: What page was that?

Mr. Anthony G. Amsterdam: Pardon me

Chief Justice Warren E. Burger: What page?

Mr. Anthony G. Amsterdam: Pages three to six of the reply brief and a homicide rate has in fact shown a decrease last year for the first time.

But we deal more generally with those figures in the reply brief.

Now if I may, I said yesterday, that the petitioners in the Texas and Louisiana Cases, may two separated constitutional contentions against their sentences of death, both of those contentions are also made by the petitioners in this present North Carolina Case.

Yesterday, I spent all of my time talking about the first of those two issues.

Today, I would like to devote most of my time to talking about the second.

In order to begin that however, I would like to simply summarize, recapitulate, the essence of the first argument in order to distinguish it from the second because although both arguments depend upon characteristics of imposition of the death penalty under the present system putting as we are ready in arbitrariness, they are very different arguments and I think it is important to state them succinctly.

Our first argument then is based squarely upon Furman versus Georgia.

The predicate of the argument is arbitrary selectivity in the administration of the death penalty.

It is not mere selectivity as such, it is arbitrary selectivity by which I mean that certain persons are consigned to die and others are spared call it mercy if you will as the government puts it but other people in a like situations are spared with no meaningful basis to distinguish between them.

That is an Eight Amendment argument.

It is not a Due Process argument because the Eight Amendment unlike the Due Process clause is not concerned with process.

It is concerned with the results of process.

The Eighth Amendment is concerned with punishment.

It asks whether punishment is cruel and unusual and punishment maybe cruel and unusual even though as Mr. Justice Stevens says, “The results in a particular Case of the process are fair simply looking at that Case in isolation.”

The Eight Amendment question is whether the result of that process, whether fair or not in isolation is in the perspective of all of the punishments meted out by the system, nevertheless, a cruel unusual punishment.

Now that is why Furman is consistent with McGautha and that is why Furman is not limited to jury discretion.

The government suggests in its brief that the in other way to run a system of selecting people to die would be a lottery.

That is of all people convicted of the first degree murder, you run a lottery and you only kill some of them.

It is our contention that Furman would outlaw that, just as much as it outlawed the jury discretionary systems involved in Furman and it is our position that Furman outlaw is the present systems before the Court in these five cases because the results are no better than a lottery.

Justice John Paul Stevens: That is it, if you except McGautha to this argument, are you not also accepting the fact that a stantardless exercise of jury discretion is something different from a Lottery.

It does not but McGautha held that.

Mr. Anthony G. Amsterdam: No, no, no.

I think that McGautha says -- Mr. Justice Stevens I am not sure that McGautha does say that.

I am not sure that McGautha addresses the question whether a lottery would be unconstitutional.

It may well be that McGautha is based on precisely the notion as the government suggests that the state can choose any way it sees fit as a matter of Due Process rather than cruel and unusual punishment.

Justice John Paul Stevens: Let me put the question just a little differently then, is your argument predicated on the proposition that standardless discretion is equivalent to a lottery.

The solicitor general takes precisely the opposite position on there.

He said discretion is not necessarily capricious?

Mr. Anthony G. Amsterdam: For Eight Amendment purposes, standardless discretion is equivalent to a lottery and for Eight Amendment purposes, it would be equivalent to a system in which a prosecutor before a trial simply could decide to paper the case capitally or not capitally as he chose.

Our point is that the Eight Amendment is not concerned with the way the decision is made.

It is concerned with whether at the end of the tunnel you look at it and you say these people are dying like being struck by lightning and these people are living and there is no rational basis for.

And which ever procedure immediately-

Justice John Paul Stevens: And any further, it is not at rational basis that a jury of 12 people differentiated.

One jury of 12 people found that this group should die and another jury found that they should not.

That is not a rational basis --

Mr. Anthony G. Amsterdam: No it is not, the fact is that each individual jury may come in with different standards, different approaches, there is no way to rationalize the system like that.

Now, our second argument though is different, our second argument I say, squarely, does not depend on Furman.

It would be the same whether Furman had been decided or not.

The second argument is that the death penalty is an atavistic butchery which has run its course.

Now, I listened yesterday the argument of Attorney General in Texas and there is something extraordinarily striking about this.

Attorney General Texas said yesterday, look at what we use the death penalty for now, we only use it for this limited class of highly serious murders.

We do not all use it for all murders anymore; we do not use it for rape.

The responding brief in Florida says look at the way we used the death penalty now, we used it for broader range than Texas does but we have got standards.

We do not use it the way, we used before Furman, they say it is not surprising that sentences determine under the system condemned by Furman produced uninformed irrational and freakish results. What are we talking about?

We are talking about the way of killing people that was argued for by these very same states in this Court five years ago.

We are talking about penalties for which they were killing people ten years ago.

We are talking about penalties for which 15 years ago, they were killing 20 people a year and in the 1930s they were killing 200 people a year and we are now told that it is no surprise that they were found to be irrational and arbitrary and uninformed.

And what will we be told 10 years from now, if the Court sustained these death penalties and we find the system working in a predictable and expectable way that we have outgrown these death penalties, that these death penalties are equally purposeless and in vain.

Our argument, our second argument which does not depend on Furman, places the death penalty in its historical perspective.

These new death penalties that we are having urged on is that Solicitor General is seeking to sustain or either just exactly like Furman that is the aggravating, mitigating circumstances which amounts to a process that is ultimately totally discretionary and uncontrolled, or else they are reversions, they are throw backs to the old mandatory death penalty system.

Now the mandatory death penalty system was repudiated in this country because it was intolerable because mandatory death penalties for crimes were intolerable and because juries would not convict.

And so what happened was --

Justice Harry A. Blackmun: Mr. Amsterdam, I thought I said that in my dissent in Furman, precisely that.

Unknown Speaker: Mr. Justice Blackmun, I think you got-

Justice Harry A. Blackmun: Of course one does not read the dissents anyway but the argument you are just making, you know as a professor that when counsel lose one case, they come up on the next one and distinguish it.

I do not believe is deserved enough logical consistency necessarily is it?

Mr. Anthony G. Amsterdam: Mr. Justice Blackmun, I think there is a quite a difference, I think that when we are now told that the system under which hundreds of people would put to death, was arbitrary and uninformed and irrational, with that is quite an important consideration in whether we should permit a new round of those kinds of killings to begin.

Yes, I think that is a very important situation

Chief Justice Warren E. Burger: (Inaudible) made statements, they were quoting the minority of the Court, simply adopting the position expressed by combination of the plurality of opinion plus two concurring opinions were they not?

Mr. Anthony G. Amsterdam: I suppose if Furman is rejected then the concession that the states are now making based on Furman would have to be rejected as well.

Unknown Speaker: Well I say again as I said yesterday, has not your Furman result prompted this kind of thing of which you are now so seriously complaining.

Mr. Anthony G. Amsterdam: We have a dialectic process going on, there is no doubt that the states have responded to Furman, but Furman itself responded what went before.

Mandatory capital punishments found unacceptable by the people of the Country and are unacceptable by the legislature.

Unknown Speaker: I think I said that in my dissent, so you do not have to argue with me about it.

Mr. Anthony G. Amsterdam: Absolutely, discretionary capital punishments put in their place and then what happened?

What happened was when given discretion, the systems of American criminal justice so thoroughly repudiated the death penalty, that in 1967 for example; the National Crime Commission concluded that being most salient characteristic of capital punishment was that it was infrequently used.

This court then as a result of that and I do not think wrong, held in Furman versus Georgia that, that kind of application of death penalty violated the constitution and now indeed the states have responded, but how have they responded?

They have responded either by maintaining the old discretionary outlets in a new form for whole sale evasion of the use of the death penalty or enacting so called mandatory death penalty schemes.

In a procedural setting where in fact, all these escape hatches exist prosecutorial discretion, etcetera.

Now let me just point out that for our second argument, the existence of discretion and escape hatches and arbitrariness in the selective system is not relevant because of Furman, it is relevant because it explains why and how new statutes can be enacted without a considered judgment that the death penalty ought to be use in the regular and even handed way which would denote acceptability by the public for Eight Amendment purposes.

The Legislatures which have put these penalties in know that they would be averted, wildly, erradicaly, arbitrarily, by a number of selective devices, and all of them cumulatively in these various case, and look at the case before the Court, look at Woodson and Waxton versus North Carolina.

I think it is important to take a good hard look at this Case.

You have four people who commit a robbery of a package store, Tucker, Carroll, Woodson and Waxton.

The first one after their apprehension to break the story, to confess, to come clean is Woodson.

Woodson also happens to be the least culpable from our points of view of the four.

He goes to trial because it is uncontested that prior to going out to the package store robbery, he was hit by Waxton, hit so his eye was bleeding and he went alone.

Now maybe that is why Tucker and Carroll were willing to plead guilty and get life and at the end of this process, they are going to live, they are in prison, and they are going to live, Woodson on the other hand and his lawyer make the judgment that because he has got the most attractive case, because he has got a duress argument that the jury might or might not buy because he did cooperate with the police, they can take the case in front of a jury.

So they go in front of the jury, jury comes back- first-degree murder comes back death and Woodson is going to die.

Now, is this unfair?

In a Due Process sense maybe “no” , in a Due Process sense, you take your money and you run your risk”, you pay your money, you take your choice; you gamble, life or death, get convicted and you die.

But is it that cruel and unusual punishment?

Let me ask what purpose is served by killing Mr. Woodson While Tucker and Carroll live?

What purpose is served by his death, when hundreds of other similarly circumstanced people, chosen by processes which are arbitrary not in the vindictive sense, not in the sense that people are shirking their responsibilities.

But in the --

Chief Justice Warren E. Burger: Mr. Amsterdam, would you argue for abolishing the jury system in criminal cases because it produces some irrational results sometimes in acquittals?

Mr. Anthony G. Amsterdam: No, not at all and that is what I am saying, it is not-

Chief Justice Warren E. Burger: You are arguing now that we should abolish of all system of punishment because it works irrationally sometimes.

Mr. Anthony G. Amsterdam: Not at all and I am trying very hard Mr. Chief Justice to distinguish a Due Process argument which it sails --

Unknown Speaker: It would conceive that the jury system does work irrationally sometimes in criminal cases as [voice overlap]

Mr. Anthony G. Amsterdam: Indeed, there is a looseness throughout the entire system, prosecutorial discretion, jury discretion, throughout the entire system which may work irrational results.

The question in these cases is whether what is good enough for meeting out remediable punishments.

Punishments that are within the realm of the knowable and the curable is also good enough for meeting out the punishment of life and death.

Furman said “no”.

Unknown Speaker: (Inaudible)now to your argument that death is different.

This is where you must end up.

As yesterday, when Mr. Justice Stewart asked you the question and your answer has to be that death is different and if it is not different you have to lose.

Mr. Anthony G. Amsterdam: That is absolutely correct, if death is not different we lose on every argument we got and I can not-

Of course, if one wanted to argue retribution one could say that the victims have already lost.

Unknown Speaker: I sense you.

Unknown Speaker: I say if one wanted be to argue retribution, one could say that the victims whom you never mention have already lost.

Mr. Anthony G. Amsterdam: If one wanted to argue that system with of killing killing Woodson and not Tucker and Carroll was retributive, yes but there is no rational retributive justification for killing the people who are killed part of -- as you inspect each of the justifications put forward for the death penalty, it crumbles in the face of the fact.

The North Carolina legislature has said that everybody who is guilty of first-degree murder shall be killed, now whether they mean it or they do not.

If the justification is retribution and Tucker and Carroll and Woodson and Waxton, all of them ought to be dead.

If the --

Unknown Speaker: I guess you missed my point, I mentioned victims of the four defendants.

Mr. Anthony G. Amsterdam: Yes, the victim is unquestionably dead but I am not sure -- it seems that something must follow from that in terms of why the defendants ought to be dead or more particular in this case why two of one want to be dead and two of them ought to be alive and that is a very problem we are putting our finger on that when this Court is told that legislative judgments are involved during the Court deferred legislative judgments.

A legislature is not what is deciding that particular person get killed.

Unknown Speaker: May I ask you a question getting back to the discussion you were just having with Mr. Justice Blackmun.

You are talking about the fact that one person who has committed murder may receive capital punishment while 8 or 10 or 20 escape it, let me ask you a better federal statute that imposes a death penalty only for air piracy that results in death and that death on the 747 could be 350 people.

It does not appear very often fortunately, you would not have the same argument their, because they would not be a Peter, Paul, John, James, and Henry and these other people you have been talking about, there might be a half a dozen in course of year who committed air piracy.

Would you make the same arguments against the federal statute that you do against the North Carolina statute?

Mr. Anthony G. Amsterdam: I would not make the same arguments but I think that the federal statute is a subject to attack and that it does nevertheless permit even within a defined range, in this respect to the question I was trying to respond Mr. Justice Stevens on yesterday.

I think that one can argue both ways about whether the narrowing of the statute, cures the Furman problem so long as discretion remains within that class defined by the statute to sentence for life or death.

On the one hand the narrower you make the statute the less broad the range of play for discretion.

On the other hand the narrower you make the statute the more alike as Your Honor points out, the people within the class are and the are more arbitrary therefore is to distinguish among them instead of treating them all the same.

Now, I just think it is premature to anticipate until we see the specific statute in question.

Unknown Speaker: But Mr. Amsterdam, just so I am clear; you are really reverting back to your first argument now.

Mr. Anthony G. Amsterdam: I am responding your question well--

Unknown Speaker: But your response really is in the context.

But basically in the context that you first tried, am I not correct in understanding your second argument that you really make the same argument regardless of what the statutory procedure is and regardless of whether it applies to one person or thousand.

Mr. Anthony G. Amsterdam: The second argument is totally independent of that, the second argument is an argument that at this point in history.

In this fourth quarter-

Unknown Speaker: So that your second argument has the same force against the air piracy example of Mr. Justice Powell but as it does against --

Unknown Speaker: Absolutely.

Unknown Speaker: Before you go on let me pursue that just a step further, can you conceive of any crime as to which you would consider the death penalty on appropriate response by society?

Mr. Anthony G. Amsterdam: No

Unknown Speaker: Let me put a case to you, you read about Buchenwald one of the camps in Germany in which thousands of Jewish citizens were exterminated, it is unthinkable that that could happen again but who would have thought it would happened in a 20th century in a country as civilized that Germany was supposed to be.

If we have had jurisdiction over the commandant of Buchenwald, would you have thought capital punishment was an appropriate in response to put that man or woman was responsible for?

Mr. Anthony G. Amsterdam: If that happened in the United States with a Constitution with an Eight Amendment in it, against the background of the history, we have had, the only likely answer to that question.

I think I probably would respond the same way all of the human beings to the kind of atrocities that Your Honor is raising.

We all have an instinctive reaction that says you know “killer”, but I think the answer to the question that Your Honor is raising, with that crime or any other crime, being consistent with the Eight Amendment to the constitution in United States against the history in which this Court must now apply that Amendment.

At this point in time, my answer would be no.

That is a second of our two arguments, not the first but it is a second and the answer is categorically no.

Justice Lewis F. Powell: So if the some fanatic set off a hydrogen bomb, said destroyed New York City.

Do you still, you think they think the appropriate remedy for that would be that to put him in prison to have set it on parole in seven years?

Mr. Anthony G. Amsterdam: Mr. Justice Powell, there is no question in my mind that the state must have and that it does have ample remedies against people who are going to set off hydrogen bombs.

There is no-

Justice Lewis F. Powell: For example?

Mr. Anthony G. Amsterdam: There is simply no doubt that it is not- the question whether let him out in seven years is totally different question as whether he is a killer.

Unknown Speaker: Putting him in prison in a solitary confinement for life with no parole, solitary confinement.

Mr. Anthony G. Amsterdam: The questions of life imprisonment without parole is also not before the Court.

I think that under certain limited circumstances, it maybe permissible to incarcerate somebody-- we are not going, it seems to me constitutionally normative questions mixed up.

I see no constitutional objection at all.

For life imprisonment without a parole.

As far as a normative provision goes, I do not think it is a wise think but I am not sure that this Court is called upon to make those kinds of judgment.

Unknown Speaker: You are foreclosing altogether the use of capital punishment under any and all circumstance and society must have some effective alternative to protect people and I am asking you what do you think it could be?

Mr. Anthony G. Amsterdam: Life imprisonment without have possibility of parole is quite.

Unknown Speaker: Plus solitary confinement.

(Inaudible) would kill anyone else in the prison.

Would not kill this as to the prisoner?

Mr. Anthony G. Amsterdam: Well I just -- this seems to me to be a manner of a prison management.

The way you prevent children from hurting themselves in sharp objects, you put the sharp objects out of their reach, you do not punish them and do not rely exclusively on punishment for picking up sharp object, you manage the prisons better, you get them in securities.

Unknown Speaker: I am asking you professor Amsterdam, what do you think is Constitutional and valid, would you think the type of a punishment that I have just suggested would be Constitutionally valid?

Mr. Anthony G. Amsterdam: Yes, I would like to say if I may –

Chief Justice Warren E. Burger: There are many, many arguments that is exactly the same ones that are being presented to us in this Case that total life imprisonment and solitary confinement is a more cruel punishment and a more unusual punishment than death.

Mr. Anthony G. Amsterdam: It is neither Mr. Justice Burger and not only to my clients but everybody on death row appreciates the difference.

I think there is a difference between death and imprisonment.

If--

Chief Justice Warren E. Burger: That would not foreclose you from making the argument I have just made and I suspect it would be made that that is more cruel.

Mr. Anthony G. Amsterdam: It is possible but it would certainly rather easy I think for this Court to write an opinion that said “death is different” and make the Attorneys who would bring those arguments up, feel rather embarrassed about doing so, including myself.

Chief Justice Warren E. Burger: Are you familiar with the article written by the Director of the prison system in Minnesota that the most cruel and unusual punishment of all is life imprisonment.

He is a trained penologist.

Mr. Anthony G. Amsterdam: I am not familiar with that article but I am familiar with (Inaudible) position that one of the reasons he favors a death penalty is that capital punishment is milder than life imprisonment.

I have always said that was a very good argument for giving that prison of his choice.

If I may reserve such little time as I have in this Court room.

Chief Justice Warren E. Burger: Thank you, Mr. Amsterdam.

Mr. Eagles?

Argument of Sidney S. Eagles

Mr. Sidney S. Eagles: Mr. Chief Justice may it please the Court.

Several problems which I have with some of the statements by Mr. Amsterdam move me to depart from my earlier notions of how I would proceed in order to put to rest the couple of questions which he may have raised in a minds of the Court, not in mine but perhaps in yours.

As I understood a statement by Mr. Amsterdam and perhaps I misunderstood that he said that in capital cases, the jury system cannot be made rational, I dispute that.

Respondent disputes that, the capital punishment does not affect the operation of the jury system except to make our jurors even more sensitive to their constitutional and sworn responsibilities.

If the jury system is not rational and sometimes there are cases in which it results on the called record, seem not rational.

Even so, it is the best system known to man, it is in deeply ingrained in our Constitutional system and until a better alternative comes along, respondent urges that petitioners have no right to complain.

As I understood Mr. Amsterdam’s argument he indicated that the mandatory death penalty had been repudiated and I was not paying as close attention as I might have perhaps and I am not sure whether he said by this Court or by the people.

I suggest that in either event it has not yet been repudiated by this Court, though two members of the Court and Furman indicated a preference in that direction.

And the people, at least the people of North Carolina, the respondent State have acted definitely to guarantee a mandatory death penalty in a limited series of Cases and I will talk more about that at an appropriate time.

All the States have responded however to your decision in Furman to assure that in those states in 35 odd states, I understand 36 in July that there will be the right in limited cases to bring forward the ultimate sanction of our criminal justice system, the death penalty for the ultimate crimes..

The ultimate crime which present a threat if you will, to our system of government and to the people of our country, I say that in disrespect, may it please the Court that our people are governed by their consent, the preamble to the constitution establishes purposes, including which maintenance of domestic tranquility.

Now, perhaps for those of us who are fortunate, domestic tranquility prevails but to the victim in this crime, there is no domestic tranquility, there is nothing.

Blank brains have been blown out by small caliber pistol, a close range for no reason except to eliminate a witness.

That is the only possible logical reason that you can imagine, there was no resistant, she was an elderly woman at 58 years, these are young strong men and they just killed her.

But there has to be a sanction to that kind of treatment.

The assertion by Mr. Amsterdam that Woodson is the least culpable defies my comprehension, much of his argument have at from time to time but I attribute that to my limitations rather that to him.

Woodson was outside with a riffle, sitting in the car standing, watch.

He -- according to the testimony of the other man in the car Carroll, he was about to get out and shoot Stancil if he had not pulled him back into the car.

A fortuitous happenstance, May it please the Court.

A lucky bike as it way say on straight that Stancil was not shot with the riffle out run instead of merely wounded.

Mr. Amsterdam asked what purpose is served by the trial and by the death penalty in these two cases.

Well, the purposes of retributions, specific deterrents and all the purposes which have been discussed.

Unknown Speaker: Mr. Eagles, is there any significance on the ages of these four men and the differences on those ages.

Am I correct?

Perhaps I am not.

The two who did not receive the death penalty were they younger, youngest of the four?

Mr. Sidney S. Eagles: The two who did not receive the death penalty were not only the younger two of the four Your Honor, they were the least expensed as far as their background went, the two who were here had been- by their own admission and their own testimony involved in some trouble with the drugs in New Jersey, before they came back.

Not only that, they were unarmed, the weapons in the case were in the hands of Woodson who had the riffle and Waxton who had the pistol and shot the lady in the head.

Unknown Speaker: What is the age of majority in North Carolina?

Mr. Sidney S. Eagles: 18 years old.

Unknown Speaker: All these were over 18, were they not?

Mr. Sidney S. Eagles: The youngest was 18 as I recall it, I am sorry?

Unknown Speaker: (Inaudible)

Mr. Sidney S. Eagles: No sir, Waxton pulled the trigger, the testimony from all three of the witnesses except Waxton of course was that he was the one who put the pistol to the lady's head without any provocation, but put the pistol to the lady’s head and killed her.

He of course testified and we set this out in our brief that it was Tucker, the other fellow who was in there but even his co-defendant Woodson.-

Chief Justice Warren E. Burger: we will resume at 1 o’clock

Mr. Sidney S. Eagles: Thank you Your Honor.

Chief Justice Warren E. Burger: Mr. Eagles, you may continue.

Mr. Sidney S. Eagles: Thank you Your Honor, the remaining point that I wanted to clarify before beginning for what I have prepared to say has to do with the reasons, the rationale behind two of these men being tried and two being permitted to plead and that is the necessity of meeting the burden of proof beyond a reasonable doubt in order to convict.

Without the testimony of at least one witness and in this case since it could easily have been three against one or one against an absence of any evidence on the other side, not meeting the burden, the state was required to make sort of a deal, some sort of plead bargain in order to be able to prove immediate proper constitutional burden of proving the case beyond a reasonable doubt.

Now, in this particular case, there is no proper basis for complain on the part of the petitioner Woodson, that he was not permitted to plead because he never tried to, his lawyer according to the record, had entered in this negotiations and he promised that he would make some recommendation to his client and the prosecutor anticipated the pleas but one never was forthcoming.

It was his decision, certainly not a requirement of Constitutional Law that he be compelled to plead.

In the case of Waxton, he was the trigger man and he was probably the dominant individual in the entire plan.

He was the one who actually pulled the trigger according to the testimony of three of the four and he of course said it was his colleague, Tucker who was with him and even if that had been true under North Carolina law, the felony murder rule, he would have been guilty as upfront.

The practicality of conviction, however, leads us to require -- prosecutor be able to make the necessary bargain with those that he and his judge pursuant to his sworn, in his experience and his training, determines are those who he can make of deal with who will be willing to testify for the State for conviction, without a conviction of course, (Inaudible).

This is of course, May it please the court not a package store situation in the context that I understand package stores to be.

This was a convenience market, was a small grocery store that his of the seven eleven quick mart type.

This woman was alone in the store, these men came in, asked for cigarettes and one them without any resistance on her part put a pistol to her head and shot her, They seized the money and run out and out they shot another man coming in.

They were tried first degree murder under the felony murder rule in North Carolina since it was pursuant to a robbery, they were convicted.

At that point, there is absolutely no discretion on the part of the trial judge in North Carolina law.

He sentenced them to the death sentence as he was entitled to and as he is required to.

The convictions were unanimously affirmed, unanimously not a single dissenting vote in the Supreme Court of North Carolina.

The same Court had in Ladel split for three.

Even there however, our Supreme Court to a person stated that they had no problems with any Constitutional infirmities of capital punishment per se.

we urge that that was a wise decision, we urge that to you.

As we read the petitioners briefs, they have not asserted as we read it any Equal Protection called or any as applied clause, as applied provisions of the law, they address themselves to the presence or the existence of the institutions as presenting a form of discretion which is impermissible.

Justice Potter Stewart: If I interrupt you to ask what were the claims made in the Supreme Court of the State, by the-

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: They urge the unconstitutionality to the death penalty, and all other questions, right now I do not recall all this time, but there were all disposed off.

The Court went through in this Case, examined the record as it does in every capital case, those exceptions and objections brought forward and those that are abandoned if they appear to Court to be worthy of attention, the Court on this motion considers them.

In this particular case, my recollection is that primary thrust was the statement that had been made by Woodson, whether or not that was admissible and there was, perhaps some other questions, I just do not recall this time.

The primary thrust though in that Court at that time was the attack on the felony murder rule has been a way of approaching the death penalty and the death penalty per se.

Justice Potter Stewart: Does the Supreme Court have power to review the sentence in any way as such?

Mr. Anthony G. Amsterdam: As such Your Honor, no.

However, it would be less than candid to say that our Court does not treat capital cases in a special way.

They examine every capital case.

There is an automatic appeal to our Supreme Court, every case comes up without regard for the diligence or competence or anything else to the lawyer and I certainly do not mean to apply anything here, these are the lawyers.

They review them those that are brought forward in Jurek as I recall the opinion.

Mr. Justice Lee pointed out that they had been back over 50 odd exceptions that the appellants counsel had abandoned and still found, there was no basis.

But as to sentence itself there is no way that our Court can say, this case does not deserve a death sentence, it gets a life sentence, you either by the conviction, you find there is a sufficiency of evidence or that there was a constitutional error of some form or that there was an insufficiency of the evidence, and the non suit question as a matter of law should have been granted.

In that case it goes back for re-trial but they cannot adjust the sentence at that time.

Justice Potter Stewart: I gather a point, your just said the Supreme Court can not reduce the degree of the offense and then affirm the conviction say second degree murder.

Rebuttal of Sidney S. Eagles

Mr. Sidney S. Eagles: That is right.

Unknown Speaker: It can however find that the evidence was insufficient to support a ready to guilt a first degree murder and remand it for a new trial?

Mr. Sidney S. Eagles: If you say insufficient Your Honor?

Justice Potter Stewart: Yes.

Mr. Sidney S. Eagles: Yes sir, they could do that.

Justice Potter Stewart: And then remand the Case for new trial?

Mr. Sidney S. Eagles: Yes sir

Justice Potter Stewart: And then on the new trial it would be the charge of a second degree murder and the lesser included offenses?

Mr. Sidney S. Eagles: No sir, I do not think so.

Justice Potter Stewart: It would be first degree murder?

Mr. Sidney S. Eagles: Yes sir

Justice Potter Stewart: And the lesser included offenses.

Mr. Sidney S. Eagles: Yes sir, that is my understanding of the law is as I understand it in this particular situation.

Here, we have a situation where the thrust as we perceived it in, is that first on the one hand and we, the North Carolina situation is one where our General Assembly, our legislature acted in what it deemed the safest way in response to this honorable Court's decision in Furman, wisely or unwisely and we urge that wisdom is not the question here, constitutionality is the question but wisely or unwisely, they reacted to this Court's decision in Furman in such a way as to say in order to guarantee the protection to our citizens that a death penalty will have for certain crimes.

We will reduce the scope of the crimes to which it is applicable but make it mandatory and that was their answer, not being willing to second guess this Court as to what degree of discretion or judgment after sentence, might or might not be permissible.

In doing that, they reduce the number of crimes from four to two and the one other than murder is rape and it is a first degree rape which is a new type of rape that involves serious battery injury or deadly weapon or a underage victim and an older rapist.

The first degree situation however is the same as it was except to the punishment is mandatory.

One point which is made here as we perceive it from petitioners brief is that there is an arbitrariness and in the other cases, they seem to say that this arbitrariness results from the fairness or the falsity of cases in which the death penalty is actually levied.

To be sure, that is not viable argument in the North Carolina situation, to be sure.

We would-

Unknown Speaker: Mr. Eagle, can we just ask on the change that the new statute made in North Carolina practice?

The appendix to the petitioners brief list some 63 cases in which the defendant is under death sentence.

Mr. Sidney S. Eagles: Yes sir

Unknown Speaker: That seems to be a somewhat larger number than it is true in other states.

Would it be your judgment that the kind of overall impact of the change in the statutory scheme has been to increase rather than to decrease the imposition of the death penalty in North Carolina?

Mr. Sidney S. Eagles: It would be my judgment Your Honor that it has resulted in an increase.

Unknown Speaker: But that was my impression I just want to-

Mr. Sidney S. Eagles: Yes sir and we have today on death row, 106, we had a 107, Your Honor, we said so in our brief and that time it was true, the last week a Superior Court Judge acting pursuant to authorization from the General Assembly, reviewed the conviction of a black man for rape, found that it fit the criteria for second degree murder and second degree rape and reduced it however it will soon be a 107 because Saturday night, a jury came in with the white residential construction executive that had contracted to murder with his wife and found him guilty of first degree murder and he just has not reached Central Prison yet but it is at 107 at this point in time.

Justice Thurgood Marshall: I have little problem, you said the Court can not reduce it in murder, but can reduce it in rape?

Mr. Sidney S. Eagles: It is the special statutory probation Mr. Justice Marshall which provides in the limited number of cases where an individual has been convicted since Waddell of rape in the first degree.

There is a statutory provision that provides for post-conviction hearing where you can reexamine the facts and say if this would have been second degree rape, had the law been in effect, you might consider and a levy punishment to Court that does not apply to murder.

Unknown Speaker: That covers rape convictions obtained after Waddell, and before the effective date of the new Statute

Mr. Sidney S. Eagles: That is my understanding, yes sir.

Justice Lewis F. Powell: Before you proceed -

Mr. Sidney S. Eagles: Yes sir, Mr. Justice Powell

Unknown Speaker: The section 14-17 of the North Carolina statute has this phrase in it and it includes murder by any other kind of willful, deliberate and premeditated killing.

Is that qualified in anyway, it seems to have that broad, I know that is not the case you would have here but as you point out, the petitioner is attacking the system and the entire statute facially.

Mr. Sidney S. Eagles: The statutes provides for first degree murder being under the two possibilities Your Honor, a list of established defenses lying and waive more about (Inaudible) or those committed by premeditation and deliberation, that is the one category and that is not limited as I understand it.

If there is premeditation and deliberation and the judge will instruct the jury as to what they may consider and how long it need be which is not very long under our law, then that is the first degree murder.

Under the second category of the first degree murder is the felony murder rule and in that situation which is what we have here a robbery which is one of the enumerated defenses on 14-17, that a murder occurred in the course of that robbery.

We also -- at least four or five as I recall and the other offenses, there is a limitation on the language other offenses as our Court has interpreted.

It is interpret other offenses to talk in terms of those which are inherently dangerous to human life or those for which there is a substantial, foreseeable risk of death or killing of an individual and a death results, that was incidentally one of the considerations that the General Assembly took into account as it was determining whether to pair down the death penalty considerations because arson was formally a death penalty offense and they determined that simple arson if that is anomaly.

Simple arson without human life being lost, ought not to result since it would result in the death penalty, if a human life did that as result of the murder felony rule.

Unknown Speaker: Are there any other statute that the United States for which you are familiar broad as this one?

Mr. Sidney S. Eagles: I am not familiar with the other statutes of the United States, Your Honor, I apologize.

The basic argument which we intend to make here is that first of it is, there are two questions asked, although counsel have indicated.

We agree with the notion that there are two counsel that there are two questions.

The Due Process portions are not raised here, we are talking about a per se system, the existence of our discretion, if it is discretion or judgment as we prefer to style it, since discretion carries with it the connotation at least from the petitioners brief of an arbitrariness and a capriciousness which we believe that we urge to you which we believe is susceptible to prove just does not exist in our system.

The death penalty per se as we urge it is not unconstitutional, it is not required as we urge.

The plain language of the constitution even the evolving standards of decency of maturing society standard, we believe can only be developed up to the point where it runs in to the plain language of the constitution which permits capital punishment, this is very explicit.

It is not a casual references it is not a single reference, a multiple references by implication and plaintiffs.

The judgment that is complained off in this case, discretion if you will.

Is that judgment that necessarily occurs in the constitutional mandated process of trial of any criminal, any accused person.

The prosecutor, the grand jurors, the petty-jurors, the trial judge and indeed our appellant Courts, Supreme Court of North Carolina which hears every death case, are all acting pursuant to oaths of office, statutory obligations and in some cases constitutional obligations under our Constitution.

All of these things result, we believe in a trial which is necessarily, constitutionally perfect in the sense of fairness and Due Process to the individual being tried.

Having resulted in this over 200 years of evolution of this country and its judicial system were shocked frankly, that petitioners now say that because things are so fair and because your system is so judicious and because your system is so careful about who finally receives the death penalty, that then is arbitrary.

It just does not follow we urge, it is logically fallacious, it is not supported by any evidence that we are able to as assign.

It requires we urge the Court, an assumption that some or all of these officials be acting in bad faith.

There is no evidence of that, certainly not in this case, that is not even an issue in this case but that specter hangs up in the balance as petitioner would have it the way we perceive its posture.

Unknown Speaker: Mr. Eagles let me ask one more question to be sure I have correctly in mind, do I correctly understand that in North Carolina unlike Louisiana, the trial judge does not regularly submit a lesser included offense instruction to the jury unless the evidence warrants the instruction?

Mr. Sidney S. Eagles: Only where there is some evidence, now there are cases, may it please the Court where reading a whole record once hard put to find the evidence on which he based that and our Court has addressed that particular problem by saying that doubts should be resolved in favor of the accused being on tried, not of course in favor of the whole class of murders

Unknown Speaker: But a general rule is different from Louisiana practice.

Mr. Sidney S. Eagles: Yes sir, as I understood the Louisiana rule being explained it is very different.

The last point that I want to make before I conclude is the notion that the existence of the capital punishment in our judicial system being somehow abhorrent to society, there is no evidence that we have found aside from scholarly writings, cited by petitioner, that tends to support that doctrine, kind officers or the solicitor general have submitted documentary evidences and statistical evidence that tends to go all the way, we find that to be a draw if you will that the abhorrence is simply not established if it must be.

We urge to this Court that the fact that the general assemblies, legislatures, of the 35, 36 states and of the Congress in enacting the death penalty in four years and this is not an issue that is been ignored in the past, past over that the Court is required to step in and get somebody’s attention.

The attention of the general assembly, the attention of all elected representatives has been focussed on every session of the General Assembly of North Carolina since 1961 and perhaps before that we just did not check that far back.

There has been a Bill introduced to do something with the death penalty, either modify it or eliminate it or change it or do something with it and they all failed.

The Bill that it before you today, the law that provides death penalty in this particular situation, passed the senate with only four dissenting votes of 50.

The vote in the House were somewhat different and there was conference committee, but the Bill finally came out as a compromise.

The idea that death penalty is abhorrent to the standards of society’s decency is simply not supportable, indeed to strip the States of their ultimate punishment to stem the tide of robberies and murders would more likely offense society.

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

Mr. Amsterdam?

You have about two minutes left.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you Mr. Chief Justice.

I have two minutes, let me spend half of one, I hope that no more, speaking at Justice Stevens question, I do not think anybody here knows the answer to the question whether lessors are submitted as a matter of routine in North Carolina.

We know the law, the law is that the trial judge is not required to submit lessors without evidence, but if he does, the judgment would be affirmed.

Unknown Speaker: Mr. Amsterdam, if in fact, there is the difference which the counsel described and which I know you dispute between the mandatory character of the North Carolina statute and the more of the greater area of discretion in the Louisiana practice and if in fact the North Carolina practice results in a larger number of death penalties.

Would you nevertheless under your first argument conclude that the North Carolina statute is less vulnerable than the Louisiana statute, that is what I would understand to be thrust of your argument.

Mr. Anthony G. Amsterdam: Less vulnerable in a scale of one to a hundred, yes but they are both vulnerable and the difference is marginal in terms of where the line ought to go it if I may put it that way. There is a difference between them but they are both well below the line of constitutionality and the difference between them is small compared to the quantum jump that had to be made to get up to constitutionality.

Chief Justice Warren E. Burger: Close over period of time six months or year, the McGautha poll and the Harris poll and all the other poles that are conducted, showed 90% of the people in this country in favor of capital punishment, 3% undecided and a balance against it.

Do you think that enters in to the constitutionality appraisal?

Mr. Anthony G. Amsterdam: No Your Honor.

Chief Justice Warren E. Burger: And the converse of that would be true?

Mr. Anthony G. Amsterdam: I do not think that the plebiscites cut one way or the other.

Chief Justice Warren E. Burger: Well I got the impression from either what you had said yesterday or this morning.

Mr. Anthony G. Amsterdam: No.

Chief Justice Warren E. Burger: That in someway we have to evaluate the standards of the people of this country today in light of what people think?

Mr. Anthony G. Amsterdam: I think that is true but not as a matter of plebiscite.

Your Honor, if- what if we possibly ask the Court for two more minutes, government has had or 45.

Chief Justice Warren E. Burger: You have one more minute.

Mr. Anthony G. Amsterdam: I simply want to make more points very clear, first of all, to attack a death penalty on Eight Amendment grounds is not to express sympathy for crime.

It is not to express coalescence with regard to victims.

The death penalty maybe the most -- the greatest obstacle to adequate enforcement of crime in this country today because it saps public conscience and make succinct, we are doing something about serious crime instead of devising other methods of dealing with it.

Secondly we are taxed in this case and have been throughout our Eight Amendment presentation with the notion that we were seeking to have this Court, use subjective gut feelings to be a super legislature that is not true.

Our position is the only coherent analytic position of the Eight Amendment.

The government says that the death penalty for Jay Walking would be bad, why?

Because there is an emotional feeling that is being invited that that is too much.

It cannot be that it is a comparative test such as Solicitor General Bork suggests.

The Eighth Amendment was written reply only to the federal government not to the State it could have been asking a comparative question.

We submit simply that our argument has a coherent Eighth Amendment base is adequately improperly based on the facts accounts for the needs of law enforcement of protection of victims and under that view, the death penalties is violation to the Eight Amendment.

Thank you for the extra time.

Justice Lewis F. Powell: Mr. Amsterdam May I give you at least to have a half a minute.

I would like to ask this question and I am sure you feel that each of these five statutes is apparent and unconstitutional in the views that you have expressed.

Well let us assume for the moment that someone, somewhere had to choose among the five, which, of that five in your judgment, since you have studied them all, would be most likely to minimize the elements of discretion and arbitrariness that are so offensive to you?

Mr. Anthony G. Amsterdam: None of them is close enough so that I can give a meaningful answer to that question.

It is not, I am not tying to simply comp off question, it just that they do not come close enough, they are so close together in their total impact and where they are is so far from where they got to pay that to draw that marginal differences is essentially I think meaningless Mr. Justice Powell.

Justice Lewis F. Powell: I understand that, but you, you have no choice among the five statutes?

Mr. Anthony G. Amsterdam: No, I will say that one of the problems with mandatory death penalty statutes and I think we have got a phrase right after this, is though in 80 or 90% of the cases, at a process through, the all of the actors involved, the prosecutor, the jury everybody recognizes a power, an extra legal power and frequently exercise in it.

Some poor cases go right through to the mail and nobody recognized they got the power and these people end up dead because nobody realized that all the discretion which is in the system, which is exercised and used by other prosecutors and other juries was even available and that is a very bad thing but is it bad, is it worst than what goes under a system in which overt discretion allows inconsistent judgments with no accountability.

I think they are both bad and as bad, the best I can do.

Thank you Court.

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