GARDNER v. FLORIDA

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Argument of Charles H. Livingston

Chief Justice Warren E. Burger: We will hear arguments next in 74-6593, Gardner against Florida.

Mr. Livingston, you may proceed whenever you are ready.

Mr. Charles H. Livingston: Mr. Chief Justice and may it please the Court.

This case is on certiorari from the affirmance of Daniel Wilbur Gardner. Petitioner was convicted of first degree murder in Florida of his wife following a hard day, a night of drinking and arguments about the location of their children.

As the sentence that was conducted pursuant to Florida’s bifurcated sentencing procedure, the State introduce into evidence two photographs of the victim waived argument.

The petitioner testified on his own behalf and his counsel made argument, the jury returned the sentencing verdict of life which in Florida is an advisory verdict.

The trial judge then ordered and considered a pre-sentence investigation disclosing portions of that pre-sentence investigation to both the State and to petitioner’s counsel.

He rejected the jury sentencing verdict of life and sentenced petitioner to death on the basis and his fact finding that the aggravating circumstance of the nature to crime being especially heinous, atrocious and cruel.

State Supreme Court affirmed per curiam to the seven justices of that Court entered a sentence saying that it was fundamental error for the trial judge to have considered and failed to disclose portions of pre-sentence investigation.

Chief Justice Warren E. Burger: What was the basis of a trial judge’s determination, was it not the nature of the crime which --

Mr. Charles H. Livingston: One problem --

Chief Justice Warren E. Burger: Where would the district judge find out the facts to become fully aware of the facts that would motivate his decision there?

Mr. Charles H. Livingston: Your Honor, that’s really the crucial problem of the case.

The petitioner is not in any position to know really.

Chief Justice Warren E. Burger: Well, where do you normally find out what are the facts of the case, in the courtroom, is it not?

Mr. Charles H. Livingston: As to the facts of the incident as opposed to the individualized considerations of the defendant, it would be from the trial.

He said they are just false the jury did obviously.

What we do not know is what sort of force the information contained in the confidential portion of pre-sentence investigation had his determination of sentence.

What sort of force --

Unknown Speaker: You have no idea what was not disclosed?

Mr. Charles H. Livingston: Your Honor, the State has recently about three weeks ago as an appendix to its brief reproduced what purports to be a fact simile, the confidential portion of the pre-sentence investigation which is something that we have not seen until now.

No one has seen until now, we do not need this authenticity.

Unknown Speaker: Mr. Livingston, I wonder if you would lift that microphone up a little bit or -- it’s hard for me to hear you over here.

Thank you!

Mr. Charles H. Livingston: Thank you Mr. Justice.

Justice William J. Brennan: And where do you say that is in the --

Mr. Charles H. Livingston: It’s appendix A to the Appellee’s brief Mr. Justice Brennan.

Justice William J. Brennan: Yes.

Mr. Charles H. Livingston: And this is after this Court grant certiorari.

Justice William J. Brennan: Well now, perhaps, are you going to address any of this as information that you might have tested and you had it at the time of sentences there?

Mr. Charles H. Livingston: Yes sir, with your permission I’m going in to that right now.

First, we claim that this can’t be decided on the basis that anywhere because its not in the record.

It’s never been authenticated, we don’t admit its authenticity.

Secondly, introducing at this late date, almost three years after the time it was used, flaws of procedural irregularity required under the capital sentencing procedures, post July till 1976.

Third, there is no fair and proper way that petitioner either now or particularly at the time of the sentencing, it was not disclosed can deal with this that the reasons we say mandate disclosure of information using considered by the trial judge.

Justice William J. Brennan: Well, my question was though, are there content, is the content here, had you had it at the -- been given to you at the time the sentencing (Voice Overlap)

Mr. Charles H. Livingston: Yes, there are --

Justice William J. Brennan: That you might have introduced evidence to contest, that’s my question?

Mr. Charles H. Livingston: Yes sir.

Justice William J. Brennan: I see, are you -- you could tell us what that is?

Mr. Charles H. Livingston: Yes sir.

Justice William J. Brennan: Alright.

Mr. Charles H. Livingston: Obviously, Mr. Justice Brennan, this is then arguendo because we’re not assuming is proper before the Court, we’re not admitting but there are at least three factors that are significant here and a false law jury one, in the information that was disclosed, petitioner and his counsel, there was information, he had a series of assault charges, all of which were dismissed, were now frost.

There was a statement from police officers, he had a long line of charges involving his wives.

That was disclosed.

We’re getting to the confidential portion.

For the first time, the probation officer does something that the police, the prosecutors, and no jury has ever done. He convicts petitioner.

He says that the petitioner has beaten his wife “x” times.

That is not established in the view of the petitioner.

We think it would be significant in the trial judge’s mind.

Secondly, he ends up with a note.

Chief Justice Warren E. Burger: You’ve lost me there.

Mr. Charles H. Livingston: Yes sir.

Chief Justice Warren E. Burger: You are addressing your comment to the pre-sentence report, are you?

Mr. Charles H. Livingston: Yes sir.

Chief Justice Warren E. Burger: Well, would the officer making that pre-sentence report not to be familiar with the evidence in the case?

Mr. Charles H. Livingston: Your Honor, it would not be the evidence in the case so much as background of the individual.

Chief Justice Warren E. Burger: Well --

Mr. Charles H. Livingston: And --

Chief Justice Warren E. Burger: But you are addressing yourself to his lack of capacity to make some of these observations but by this time, the case has been tried and the jury has returned its verdict and its public knowledge as to what went on.

Mr. Charles H. Livingston: I’m sorry Mr. Chief Justice Burger, if I let you strained, but we’re not contesting the actual incident for which petitioner was convicted but rather probation officer was referring to other instance going back to 1960 or something which we do not admit occurred.

And it is never been tested in the adversarial process.

These were all the charges that were denied or dismissed or now frost.

Unknown Speaker: Well, now, for example, I’m looking at page 57, I’d like to get clear what you’re suggesting to?

Here, there is a reference to an incident involving a first wife at Fort Myers, was there any evidence that the trial for this offense involving an incident at Fort Myers involving the first wife?

Mr. Charles H. Livingston: No sir.

Unknown Speaker: And what you’re saying here is that here at length, this confidential report discusses an incident at Fort Myers and lines up with the -- he broke into a trailer and noticed the colored man sitting in the front parlor with no clothes on and his wife in the backroom with a white band apparently fighting or arguing.

He stated he took out his knife and told the colored man to get there and so forth.

Now, that’s an incident at Fort Myers.

Had you have this information?

Would you have offered anything to contradict what stated here?

Mr. Charles H. Livingston: I didn’t represent petitioner at trial.

I think he was entitled to be -- had that (Voice Overlap).

Unknown Speaker: I’m speaking of the sentencing hearing.

Mr. Charles H. Livingston: Pardon?

Unknown Speaker: At the sentencing hearing.(Voice Overlap).

He would have this at that time, would there have been an effort to refute this other evidence?

Mr. Charles H. Livingston: I think he was entitled to notice that something that was going to go before the judge and then to have with the consultation of his counsel.

Make that decision.

We’re really referring in particularity not so much for ours incident but to the statement on page 61, the same appendix.

Unknown Speaker: Which is that now?

Mr. Charles H. Livingston: And that would be the end of the first paragraph.

It should be noted the subject in this charges has had at least three times when he has beaten his wife.

And that is the first time that this comes up in any way other than these arrests which were all tossed out.

Unknown Speaker: Now, this is on the victim, the (Voice Overlap), that’s the first wife.

Mr. Charles H. Livingston: Correct, that is the victim.

Correct that is the second one.

Unknown Speaker: And in other words that he had a record of at least three times beating on the same woman for whose killing he was convicted, is that right?

Mr. Charles H. Livingston: Yes sir.

But this never arose before.

This is the first time we’ve seen this on a confidential portion of PSI.

Unknown Speaker: And that was not in evidence at the trail.

Mr. Charles H. Livingston: No sir.

Unknown Speaker: Or before the jury that was determining sentencing.

Mr. Charles H. Livingston: No sir.

Unknown Speaker: Of course that was, -- it would have been an evidence, it would hardly have been helpful to your employer.

Mr. Charles H. Livingston: No sir.

If I’d represented petitioner at trial, in front of the jury, he would certainly try to exclude that evidence, we sadly remiss, if he denied.

Unknown Speaker: But would that have been admissible under the new Florida capital punishment law at the sentencing proceedings before the jury, after the conviction?

Mr. Charles H. Livingston: I believe it would've been admissible under Florida statute 921.41.

I can’t at this moment fall out of my head the exact aggravating circumstance it would fit under.

I think you would have a difficult time keeping it out.

Unknown Speaker: But we simply can't (Inaudible) -- would the state had to produce witnesses at the sentencing proceeding?

Mr. Charles H. Livingston: The Florida --

Unknown Speaker: Isn’t that right?

Mr. Charles H. Livingston: The Florida statute does provide that the state can use hearsay testimony in sentencing proceeding.

Justice William J. Brennan: No, my question is, could they have used this report, would that be enough or would there had to be some --

Mr. Charles H. Livingston: Well, what they would've had to done is precisely what was not done here Mr. Justice Brennan.

Even if they do --

Justice William J. Brennan: That’s what I’m trying to get at, what would they have had to do?

Mr. Charles H. Livingston: Okay.

If they had used this information or attempted to use it regardless of the form whether it was police reports, hearsay police officers, whatever, they would've -- then the petitioner would notice what they were trying to do.

They would've given him the opportunity “x” necessity to correct it, explain it, rebut it, if necessary instead of, you know, being a shot from the dark, something that only the judge saw.

Chief Justice Warren E. Burger: Do you suggest that there is anything in this report which was not disclosed at the time of the sentencing hearing which would have tended exculpate and to persuade someone that the death sentence should not be imposed?

Mr. Charles H. Livingston: Well, Your Honor, I think, if I may turn that just a little bit and that goes to what appears to be the state's position, it's all harmless error anyway regardless.

And I don’t think that we can point so much --

Chief Justice Warren E. Burger: Wouldn’t it be harmless if there was exculpatory evidence here which you might have exploited.

Mr. Charles H. Livingston: No sir.

But I think what we’re forced into doing but the posture of the case is speculative of what was going in the trial judges’ mind.

Our position is that you’re entitled to have the information, entitled to make your case before he makes up his mind.

But to directly to your point, I think it would pertinent as to how he might have discounted mitigating evidence.

The jury had everything the judge had except this two PSI reports.

Chief Justice Warren E. Burger: It’s your view that the -- that there is no way of determining what the judge had in his mind when he imposed the death sentence.

Mr. Charles H. Livingston: I think that we are forced to speculate and that takes out a harmless error rule under Chapman.

But if I may return to what I was saying, that the jury after all voted for life.

They had everything that --

Unknown Speaker: Now, the jury had voted for death.

Without having any of this and then the trial judge did what he did without disclosing this, would you be here?

Mr. Charles H. Livingston: Yes sir.

I don’t think the case would be strong however.

I think the principle would still pertain, I think this is a strength of the case --

Unknown Speaker: Well, I’m putting out the other way, I gather you think it's significant, the jury voted only for life and it’s the judge who voted death after having seen this and not disposing it.

Mr. Charles H. Livingston: Yes sir.

I think, it’s significant but not controlling.

Unknown Speaker: Petitioner said voted, he imposed with that sentence.

Mr. Charles H. Livingston: He rejected --

Justice William H. Rehnquist: At what point in the Florida Courts did you raise this point?

Mr. Charles H. Livingston: Mr. Justice Rehnquist, it was first raised before the state Supreme Court.

Justice William H. Rehnquist: On your appeal, from what?

The District Court of Appeal?

Mr. Charles H. Livingston: No sir.

In capital cases in Florida, appeals taken directly under the Florida constitution from the trial court or the Circuit Court in Florida (Voice Overlap) state Supreme Court.

Justice William H. Rehnquist: So you made it in your opening brief in the Supreme Court of Florida?

Mr. Charles H. Livingston: It was mentioned but not with the exactness.

It should have been, it was mentioned again in the reply brief, it was mentioned oral argument, the two dissenting justices both picked up on it.

Justice William H. Rehnquist: But this is the per curiam opinion of the Supreme Court of Florida, it doesn’t even deal with it.

Mr. Charles H. Livingston: Mr. Justice Rehnquist, the per curiam opinion in the State of Florida does not deal with any issue advanced by Appellant in that court.

It states the jurisdiction.

It states what the indictment says.

It repeats the fact finding of the judge and says affirmed.

Justice William H. Rehnquist: But it's your contention anyway that you adequately raised it in the Supreme Court of Florida so that under Florida procedure they would have to consider it?

Do they have to consider some that you didn’t raise before the trial court?

Mr. Charles H. Livingston: Mr. Justice Rehnquist, their practice is in capital cases to consider errors even if not contemporaneously objected to at the trial level.

Appellate rules 6.16 and 3.7, both permit there under recognized plenary.

6.16 goes further and says in capital cases, they’re under duty to review the record.

Justice William H. Rehnquist: So any error that you adequately raised in your brief, they must consider under Florida practice.

Mr. Charles H. Livingston: Yes sir.

And -- would say that, as to your point, it's certainly, they are not raised with the precision one would like in retrospect and certainly raised better than the issue was (Inaudible).

Unknown Speaker: When did you first know that the court had relied on this?

Mr. Charles H. Livingston: Your Honor, the court's statement at the time of sentencing was -- I have furnished to counsel or has counsel for the state received the portion of the PSI report to which they are entitled.

Sounding like the decision already made as to what he was going to give them.

The prosecutor said, the state has Your Honor, defense counsel at the defense session Your Honor.

Unknown Speaker: It’s out of the case now?

Mr. Charles H. Livingston: So presumably, they could figure out that if they were only receiving portion of it that it -- there was a portion that wasn’t been given to him.

Justice Byron R. White: Well, when did you know -- when did you first know that there was some --

Mr. Charles H. Livingston: We did not know for sure and -- excuse me, we still do not know for sure, Mr. Justice White, if there is in fact a written confidential portion, the pre-sentence in this case.

Justice Byron R. White: Well, how did you know – you’re claiming that he did rely on something though.

Mr. Charles H. Livingston: We are claiming that he stayed in this findings of fact, he considered it.

Justice Byron R. White: But did you have any opportunity after that to present your question to the trial court or was the only place you could take your point to the Supreme Court.

Mr. Charles H. Livingston: State Supreme Court.

Justice William H. Rehnquist: You couldn’t have made a motion for a new trial?

Mr. Charles H. Livingston: Yes, defense counsel could have it, it was not done.

Unknown Speaker: But suppose you prevail, what happens to this case?

Mr. Charles H. Livingston: Well, if we prevail, it seems to us, there are at least three possible things that could happen on remand, one would be simply to send it back to the state’s Supreme Court and say consider it now.

Unknown Speaker: For a re-sentence.

Mr. Charles H. Livingston: Yes sir.

But to me, that would be inadequate because the state’s Supreme Court, like this Court, has no way of certifying, authenticating, that is in fact what the judge used and considered.

Secondly, the state Supreme Court will now have the benefit of petitioner’s trial counsel's reaction to this information.

His attempt to rebut it or explain it or argue it away, whatever.

The second alternative would be to send it to the trial court simply for some sort of proforma ignition of the record, of the matter into the record and then to reinstitute a sentence.

We submit that would be inadequate simply because it would be proforma--

Unknown Speaker: When they will say re-institute or redetermine?

Mr. Charles H. Livingston: Re-institute.

The third --

Chief Justice Warren E. Burger: Well, you’re assuming this conclusion all of it in advance, when you say re-institute the sentence.

If it's remanded so that this ultimately reaches the sentencing judge with directions to open up the record and hear any arguments you have, are you assuming in advance that he will impose the same sentence.

Mr. Charles H. Livingston: Your Honor, I hesitate to do so, I know, this court hesitates to do so, but I think, given the gravity of the decision he has already made is beyond any human being to say, Oops!

I made a mistake in sentencing someone to death.

Let me try to do it again.

And that’s why I think the third alternative, the third choice on remand is the proper choice.

That would be to remand the case for a new sentencing proceeding de novo, obviously it didn't touch the conviction at all.

Chief Justice Warren E. Burger: A new sentencing procedure before the sentencing jury.

Mr. Charles H. Livingston: Correct Your Honor and that --

Chief Justice Warren E. Burger: In which this total information would go to that jury.

Mr. Charles H. Livingston: If the judge intends to use and consider it, yes sir.

Justice William H. Rehnquist: But you don’t claim there was any defect in the sentencing proceeding before the jury, do you?

Mr. Charles H. Livingston: No sir.

Justice William H. Rehnquist: Then why should there be any sentencing proceeding?

Mr. Charles H. Livingston: Because we think that -- the Florida procedure seems to be something of a hybrid.

Most states either have or the judge firmly determines capital sentence or the jury firmly determines it.

In Florida they have the advisory sentence of the jury is important, it is supposed to have an effect upon the judge.

Now, if we were on remand, if the state were willing to stipulate at the jury would again recommend life, I think that would be a decision to be made at that point by petitioner and his counsel at that point.

Justice Thurgood Marshall: Do you agree that the least you can get out of this is life?

Mr. Charles H. Livingston: Yes sir.

Justice Thurgood Marshall: Well --

Mr. Charles H. Livingston: In the case in its present posture.

Justice Thurgood Marshall: So why do you want to upset the life verdict that the jury gave you?

Why do want to upset that?

Mr. Charles H. Livingston: I don't.

Justice Thurgood Marshall: Well, what’s the purpose of getting to the judge so they can give death?

Mr. Charles H. Livingston: Oh!

No sir, I think on remand the proper solution will be to have another judge and have him to -- he would need to do from the beginning.

Now if that could be done fairly by studying the --

Justice Thurgood Marshall: Why don’t you take the position that jury was okay because the jury didn’t have this information?

The trouble came when the judge looked at this without letting you look at it so it should go back to the judge and not the jury.

Mr. Charles H. Livingston: Yes, I see that --

Justice Thurgood Marshall: I thought that's what you were saying when you started out but now you have changed.

Mr. Charles H. Livingston: I think my difficulty is that on remand we would submit, petitioner submits that the proper solution would be to give to a different and he would have to have the benefit of that information and perhaps it could be done by stipulation by a case stated --

Justice William H. Rehnquist: Did this Court ever in a state proceeding said that if a case would have to go back for retrial or re-sentencing before a different judge.

I realize that on occasion, Court of Appeals in a federal system have said that in the case of a District Judge.

But has Federal Court ever said that in the case what we are reviewing in a state proceeding.

Mr. Charles H. Livingston: Not to my knowledge Mr. Justice Rehnquist, yet we would point out, this is a capital case under the post Furman, post Woodson, post Proffitt procedures --

Justice William H. Rehnquist: So what?

Mr. Charles H. Livingston: Well, because this point is extremely a significant decision has to be made with the utmost regard for procedural regularity.

If I may return to one thing you raised Mr. Chief Justice Burger, and that is you asked how do you think this might have been used by the trial judge and that would be that we know the jury recommend life.

The most likely mitigating factor in the jury’s mind was the drinking, the children, the marital setting in the situation.

Chief Justice Warren E. Burger: The matter is --

Mr. Charles H. Livingston: What we don’t --

Chief Justice Warren E. Burger: -- proposed by this report?

Mr. Charles H. Livingston: No, Sir, but what we are getting to is that what -- how this report might have actually used and again would force a speculation.

Chief Justice Warren E. Burger: Could you not have demonstrated to the sentencing jury all the information which is in this report, about his lifelong drinking habits, his tendency to violence.

Mr. Charles H. Livingston: Well, the problem with the drinking and violence is that these things could cut those ways.

It's something the trial counsel should be aware of at the time --

Chief Justice Warren E. Burger: It cuts syndicate – it cuts not both ways if you want to go back to that sentencing jury, it cuts only one way.

The best you can get of them is reaffirmation of the life sentence, life recommendation and if they have all this information before them, they might impose the death sentence, might they not?

Mr. Charles H. Livingston: Well, Your Honor --

Chief Justice Warren E. Burger: It's a possibility.

Mr. Charles H. Livingston: When I was talking the use of the information in the confidential portion of PSI, I was attempting to address the issue of how the judge might have used it since we’re forcing to speculating.

And it seems that the use of it and the danger in it is that, they say, well, he has beaten his wife.

He had a worse military record than it was apparently disclosed.

He is characterized by the probation officers, the usual drinker and the fighter, assaultive nature, etcetera, etcetera.

And how that might have been used by the judge is to knockout what the trial jury apparently found in the mitigating circumstances.

Justice William J. Brennan: Let me understand how this Florida procedure works.

After the verdict of guilt, then the jury is assembled again for a sentencing procedure, is that right?

Mr. Charles H. Livingston: Correct.

Justice William J. Brennan: And that's an adversary hearing of course is --

Mr. Charles H. Livingston: Correct.

Justice William J. Brennan: Now, then, after -- then the jury goes out and it return it's recommendation.

Mr. Charles H. Livingston: Correct.

Justice William J. Brennan: And then what’s the proceeding before the judge after the jury’s recommendation of life?

Mr. Charles H. Livingston: Right.

In this case, what occurred Mr. Justice Brennan, is the jury returns its verdict on January 10, I believe, he had that time ordered a pre-sentence investigation, was turned into him on January 28, he sentenced the petitioner on January 30th.

Justice William J. Brennan: Was there any hearing of any kind?

Mr. Charles H. Livingston: No sir.

He came in, stated I have furnished this to counsel and the portion to which they are entitled, is there anything to say, no sir, does the defendant have anything to say, defense counsel at that point, pointed out the jury advisory verdict and (Voice Overlap) he had already made his determination before he asked them to say anything.

Justice William J. Brennan: Well, suppose when they asked counsel, do you have anything to say, counsel, well, what you’ve given us, I would like to offer some evidence opposed to as much as you have given us.

Mr. Charles H. Livingston: Well, the --

Justice William J. Brennan: Would he have done that?

Mr. Charles H. Livingston: Well, I think we’ve enforced speculating in the difficulty ruling Mr. Justice Brennan is, that he was no given --

Justice William J. Brennan: No, but there is a Florida procedure call for that before the judge actually imposed a sentence.

An opportunity to defense -– to meet anything that is turned over after the jury's recommendations are turned.

Mr. Charles H. Livingston: The Florida procedure allows locution immediately prior to the imposition of sentence.

Justice William J. Brennan: No, but how about a [Laughter] --

Mr. Charles H. Livingston: But there’s no clear step in the statute that says, you have a separate opportunity for argument at the time of the judge’s decision.

Unknown Speaker: So at least there is no adversary hearing before the judge mandated by the Florida statute.

Mr. Charles H. Livingston: Subsequent to --

Justice William J. Brennan: The Florida (Voice Overlap) does not require or even give an adversary hearing before the judge.

Mr. Charles H. Livingston: Subsequent to the return of the jury’s advisory verdict, correct sir.

Unknown Speaker: So that insofar as the judge’s function is concerned, it's just as in likely the more traditional states where judge does the sentencing except that he does have a jury recommendation.

Mr. Charles H. Livingston: He does have a jury recommendation in a line of cases decided subsequent to the sentencing.

Unknown Speaker: Well, he has the record.

He has a written record.

Mr. Charles H. Livingston: He has a written record and in a line of cases decided by the state Supreme Court subsequent to the petitioner’s case.

They have imposed extremely heavy importance to a jury advisory verdict of life.

Justice William J. Brennan: Well, that’s the point, isn’t it?

In the case of Tedder against State, at least the opinion of the three members of the court relied on in upholding this procedure and Proffitt against Florida.

An opinion relied upon the Florida decision of Tedder against State which said that in order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could “differ.”

And I’m quoting the opinion of the Supreme Court of Florida and it was upon that proposition among others that three members of the court here relied in upholding the Florida system.

And also upon the related proposition that this would all be reviewed by the Supreme Court of Florida and that there would be an opportunity for -- to answer on the defendants part to and to argue to the sentencing authority the ultimate sentencing authority, the effect of those facts.

That was entirely denied here, wasn’t it?

Mr. Charles H. Livingston: Yes sir, it was.

I think it should be pointed out --

Justice William J. Brennan: Do the Supreme Court of Florida have the confidential -- even the Supreme Court of Florida have the confidential part of this pre-sentence investigation?

Mr. Charles H. Livingston: No sir.

The --

Justice William J. Brennan: The dissenting opinion has suggested -- he didn’t --

Mr. Charles H. Livingston: It did not --

Justice William J. Brennan: How could it be possibly reveal the sentence then?

Mr. Charles H. Livingston: Correct.

And as to Tedder and Hollowell and some of the other cases to which you’re referring and to which you all referred in the judgment of the court, Mr. Justice Stewart, Stevens, and Powell, Tedder was after this case and it's just as a simple statistical matter, there are now 77 people on death row in Florida.

Twenty-seven of them had jury verdicts recommending life which were overridden.

And a vast disproportionate numbers were early capital cases in Florida.

Justice William J. Brennan: Wasn’t it implicit in the Florida law that at least thought understood in upholding that all of this would be open and above board both from the trial court and in the appellate court.

Mr. Charles H. Livingston: Yes sir.

I think that is colored in the opinion announcing the judgment of the court.

In Proffitt, I think it also can be inferred from the decision in Woods --

Chief Justice Warren E. Burger: When you came to the point that the jury had returned this recommendation and you were before the judge, before the final stage, was there any evidence tendered on behalf of the sentence to convicted man or profited in any way to enlarge the showing to the judge as to why he should accept the jury’s recommendation.

Mr. Charles H. Livingston: No, Mr. Chief Justice furthermore there was --

Justice William J. Brennan: Well, wasn’t that the occasions for it?

Mr. Charles H. Livingston: If petitioner and his counsel had known what was in the confidential protion of PSI, it very well might have been.

But in a disclosed portion of PSI, they could easily have concluded there was nothing worth rebutting.

They could have relied on the jury verdict, they could have relied on what was gone before.

Justice William J. Brennan: Mr. Livingston, a little while ago, you said that the jury must have found some mitigating circumstances, can you enlighten me as to what those possibly were?

Mr. Charles H. Livingston: Yes Sir, they were instructed pursuant to Florida statute 921.41 to the mitigating circumstances provided by that statute.

The defendant acted under the influence of extreme mental or emotional disturbance.

Justice William J. Brennan: Under extreme, what?

Mr. Charles H. Livingston: Mental or emotional disturbance or to his capacity to recognize criminality, conform his conduct to it was substantially impaired.

Justice William J. Brennan: Did you argue this to the jury?

Mr. Charles H. Livingston: I believe it was argued in effect based on the drinking.

I was not trial counsel but the drinking, the petitioner saying I was not in my right mind and so forth was presumably together with the distress about the location of the children.

Presumably what the jury hung the huddle in the advisory verdict.

Justice William J. Brennan: And those arguments of course were available to the Court.

Mr. Charles H. Livingston: Certainly.

Unknown Speaker: Mr. Livingston, before you conclude, I would like you to complete your answer to a question that what asked very early in the argument.

You were asked to identify the portions of the confidential pre-sentence report which were adverse to your client and which included matter not in the record before the jury, you did identify on page 61 the reference to actual beatings as opposed to arrests.

Is there anything else?

Mr. Charles H. Livingston: Yes sir.

There is also a claim, the petitioner spent time in the brig when he was in the military which is not in the disclosed proportion.

Unknown Speaker: And what was that again counsel?

Mr. Charles H. Livingston: There is also a claim in the confidential portion.

That he spent time in the brig while in the Air Force an yet that is not in the disclosed portion in the pre-sentence investigation.

There is a serious of characterizations about he has an assaultive nature, he’s the usual drinker and fighter, etcetera, etcetera.

Justice Thurgood Marshall: Also that he assaulted his first wife two more times in the 1970 and 1972 on page 58.

Mr. Charles H. Livingston: Yes sir.

Although I think that perhaps that was included in the conclusion back on page 61.

But there was a series of things --

Justice Thurgood Marshall: Would you like to know whether those are (Voice Overlap).

Mr. Charles H. Livingston: Yes sir.

Not only would I like to know, I think petitioner has a sound constitutional right on both the due process and Sixth Amendment provisions of the federal constitution to know, he did know, his counsel did not know and the sentencing is defective for that reason.

If I may reserve --

Chief Justice Warren E. Burger: And you said you want to know that in order to persuade the judge that it isn’t true, that’d be one approach, would it not?

Mr. Charles H. Livingston: That would be one approach Mr. Chief Justice or to fashion an argument as in Herring v. New York, you needed --

Chief Justice Warren E. Burger: Or you say that it is true and that this shows this is a lifelong pattern of conduct which is in your view a reason why the death sentence should not be, I suppose you could play that --

Mr. Charles H. Livingston: Correct Mr. Chief Justice and we claim that we need to know before the decision is made.

It doesn’t do us any good at this point.

Chief Justice Warren E. Burger: Well, then utmost your remedy would be a remand to the district judge to do what you now say he should've done at the time or his -- your client’s then counsel should have done had he known these things and go through the process again, is that right?

Mr. Charles H. Livingston: We think the constitution under pending of our argument be required to at least go back to the point of the jury’s verdict and then forward.

And the jury sentencing verdict even though, I misspoke myself somewhere early.

Thank you.

And may I reserve the minutes that I have, left.

Chief Justice Warren E. Burger: Mr. Allbritton.

Argument of Wallace E. Allbritton

Mr. Wallace E. Allbritton: Mr. Chief Justice may it please the Court.

Preference to my remarks I’d like to advice the court that I have somewhat of a speech impediments so if any time I mumble or the Court does not understand any remark, I have to say, please let me know and I’ll attempt to repeat it.

If the Court please in Woodson v. North Carolina, this Court struck down a state law and one of the grounds it gave was because this law failed to provide for the particularized consideration of relevant aspects of the character and record of the defendant affected under it.

The Court went on to remark and I quote very briefly, “Justice requires consideration of the character and propensities of the offender.”

And then the Court remarked and I quote again very briefly a comment that “this is a constitutionally indispensable part of the process of inflicting the penalty of death.

Now then the day -- this court has been asked to receive from Woodson from that constitutional principle by emasculating a provision specifically tailored to furnish a trial judge with the kind of information that this court said was constitutionally required before the imposition of the death penalty.

I’d like digress a moment about as to how this case got here.

It has been urged that counsel didn’t have the confidential part of the PSI report.

That the Supreme Court of Florida didn’t have it.

I’ll tell why they didn’t have it is because trial counsel and the trial court didn’t ask for it.

There were two motions for a new trial filed in the trial court and none of those is any mention made that the trial judge erred in refusing to disclose the confidential part of the PSI.

Because you see, if it had been, then under the Florida rule, the PSI could have been made part of the record on appeal and it would have been before the Supreme Court of our statute.

And the -- they could've reviewed it but this was not done, not --

Unknown Speaker: Isn’t it correct that as a matter of Florida law only a portion of the pre-sentence report is disclosable or do I misunderstand, I’m not --

Mr. Wallace E. Allbritton: You misunderstand the rule provides that a trial judge may disclose all of it.

Unknown Speaker: I see.

Mr. Wallace E. Allbritton: If he so deems fit.

And it also provides that when the pre-sentence report becomes an issue that it can be included and it can be reviewed by an appellate court, but this was not done and that’s why the Supreme Court didn’t have it before it.

Unknown Speaker: Now, doesn’t the Florida practice require the Supreme Court to search the record for all possible material error.

Mr. Wallace E. Allbritton: They searched everything they had down there.

Unknown Speaker: And is the procedure they followed in this case consistent with their later description of the procedure in the Tedder case.

Mr. Wallace E. Allbritton: Yes sir, I think so.

Unknown Speaker: Can it be consistent if they did not look at the same material that the trial judge relied on, on their own initiative?(Voice Overlap)

Mr. Wallace E. Allbritton: I don’t think that it can because it was not made an issue.

There was no mention --

Unknown Speaker: But I thought you just said that they have a duty independently to investigate every potential issue that’s material.

I thought you said that was the practice in the Supreme Court.

Mr. Wallace E. Allbritton: They do in the --

Unknown Speaker: And why is the absence of a requests of any materiality though.

Mr. Wallace E. Allbritton: Well, it is because they just didn’t have it in front of them justice.

They can’t review what’s not in the record on appeal.

Unknown Speaker: But if they knew as they did, that the trial judge relied on something not before them, didn’t the Tedder opinion indicate that they would've independently made an effort to find out what was the basis for his decision of death row than life.

Mr. Wallace E. Allbritton: No, I think that’s --

Unknown Speaker: Isn't that what Tedder in substance says.

Mr. Wallace E. Allbritton: Yes it is.

But the thing is argue if any, to say that they knew what the trial judge had.

Unknown Speaker: Well, if they read the dissenting opinion, they knew that the trial relied on something that they did not have before them.

Mr. Wallace E. Allbritton: And that was the first time it was brought up.

Unknown Speaker: But does that matter under Tedder?

Mr. Wallace E. Allbritton: No sir.

I don’t believe it does.

However, I add, no time even until this present time has counsel, any counsel made any demand whatsoever for a copy of the confidential apportion of the PSI.

So I took the liberty of attaching it as the appendix to my brief so that this court can read it.

The counsel says he doesn’t believe that’s authentic.

Well, if he doesn’t, I have an authenticated copy here and if he wants to read that, he can.

Unknown Speaker: Well, why shouldn’t the Supreme Court of Florida look at it?

Mr. Wallace E. Allbritton: They can justice -- if its made a part of the record on appeal, they can.

Unknown Speaker: Well, you don’t suggest that the point wasn’t made in the Florida Supreme Court that the trial judge had relied on material that had not been disclosed.

And it was clear that the appellant there was urging that that was error, constitutional error.

Mr. Wallace E. Allbritton: I deny that emphatically.

It was not raised in the Supreme Court of Florida.

Chief Justice Warren E. Burger: But you say it was not raised -- it was not raised by the parties but it was raised by the dissenting justices, was it not?

Mr. Wallace E. Allbritton: It was commented on by Justice Ervin in his dissenting opinion.

Unknown Speaker: Is this wrong, I’m reading from page 26 from the petitioner’s brief.

It says, his assignment, of error number 13 contended that the court erred in considering your pre-sentence investigation of defendant in his assignment and the error number 12 contended that the trial court erred in rendering its findings of fact and supported that penalty because the court considered factors not based upon the record of the trial in sentencing proceedings.

Mr. Wallace E. Allbritton: That Your Honor has to do not with the failure of the trial judge to disclose the confidential aspect of the PSI.

He is arguing there that the trial judge erred in reviewing the PSI, you know at all.

That that’s what he’s arguing.

That is a general assignment and it does not deal with the precise issue that is now before this court.

Unknown Speaker: Well, his brief goes on and then gives much more details about it.

Isn't it --

Mr. Wallace E. Allbritton: Well, I know it does and in the brief that he filed into the Supreme Court of Florida, he mentions but not in the context that it was error for the trial judge not to disclose and particularly so, when it had not been requested by the defense counsel.

Justice Thurgood Marshall: It must have been bad, the --- how did the dissenting judges find out about it?

Mr. Wallace E. Allbritton: I beg your pardon sir?

Justice Thurgood Marshall: How did the dissenting justices find out that this was a point in the case.

Somebody must have told it.

Mr. Wallace E. Allbritton: Because it was mentioned in the brief of appellant filed in the Florida Supreme Court.

But again, not in the context that the trial judge erred in failing to disclosed or refusing to disclose the confidential aspect of the PSI.

Unknown Speaker: Well, I know Mr. Allbritton.

Doesn’t this get us back to my Brother Stevens question to you at least in light of Tedder, was not the mention sufficient to trigger a discussion and consideration and decision based on it by the majority of your Supreme Court.

Mr. Wallace E. Allbritton: I believe sir that all they could review is what's before them.

Unknown Speaker: Well, I’m asking you, in light of what Tedder held.

Mr. Wallace E. Allbritton: Yes.

Unknown Speaker: As it's the responsibility of the Supreme Court under the new Florida statute.

Mr. Wallace E. Allbritton: That’s a hard one to answer because it's hard to say that they have a duty to go into matters that is not before them that no point has been raised as to this at all.

Unknown Speaker: No.

But the point was raised.

Wasn’t it raised sufficiently at least.(Voice Overlap)

Mr. Wallace E. Allbritton: No, I don’t sir.

I do not.

Unknown Speaker: The dissenting justices --

Mr. Wallace E. Allbritton: He pointed it out but even he did not say that it was error because the trial judge failed or refused to disclose the confidential aspect of it.

He just mention it as part of his dissenting opinion.

Chief Justice Warren E. Burger: Well, isn’t that possible that since this is an evolving area of the law, both at the level of this court and in the states, by virtue of these recent holdings that the Tedder opinion cited after the court passed on this case, the Florida court indicates some enlarging of their view of the matter of what they should consider.

Mr. Wallace E. Allbritton: That could well be.

I can’t argue with that part.

Chief Justice Warren E. Burger: If the case were to go back, in your view, should it go back to the Supreme Court and I emphasize the “if” to go back to the Supreme Court of Florida for their reconsideration taking into account the material now in the record or do you think it should go back to the sentencing judge?

Mr. Wallace E. Allbritton: Well, if that terrible event occurs then I think it should go back to the Supreme Court of Florida with directions to review the confidential portion of the PSI in order to determine whether or not there was manners and things in there that should have been disclosed to the defendant and his attorney so that the same could be rebutted.

And whether or not the trial judge abused his discretionary power in failing to disclose it in the absence of a request so they do.

Unknown Speaker: Well, this Court upheld the Florida statute on the representations of Florida through its Attorney General and through its Supreme Court and through its legislature that this would be an open and above board proceeding and now we get to this case and there wasn’t one.

I don’t think it's a matter of discretion and unless those three justices who upheld the Florida statute, on that basis are going to change their minds.

Mr. Wallace E. Allbritton: Well, it is discretionary.

I beg your pardon sir.

Under the rule.

Unknown Speaker: Under your Florida rule, yes.

Mr. Wallace E. Allbritton: What's wrong with that? You have a federal rule that’s comparable to it.

Federal rule of 32 (c) provides the same thing for our federal district judge.

He has the discretionary power.

So does the rule.

It says that the state trial judge may disclose and the federal rule is comparable to it.

Chief Justice Warren E. Burger: That rule however, federal level has not been considered or litigated in connection with the imposition of a death sentence under the new federal statutes however.

Mr. Wallace E. Allbritton: No, that’s true.

It hasn’t but has -- there are many cases on the point but not in the context of a capital case, that’s true.

Unknown Speaker: It says the dissenter has certainly raised this, couldn’t it -- it could hardly had been clear on what he said, we have no means of determining on review what role such confidential information played in the trial judges’ sentence and thus I would overturn appellant’s death sentence on the basis of this fundamental error alone and Mr. Justice Boyd joined that and certainly I would suppose the other justices of your court read the dissenting opinions that are filed.

They must have seen that that was raised, didn’t they?

Mr. Wallace E. Allbritton: They saw it and evidently didn’t agree with it at all.

Unknown Speaker: Didn’t say a word about it, didn’t they?

Mr. Wallace E. Allbritton: And they didn’t say a word about it.

Absolutely not.

They evidently that the trial attorney was happy with the way things was in the trial court or else he would've made --

Unknown Speaker: (Voice Overlap) when his client was sentenced to death, did he?

Mr. Wallace E. Allbritton: Well, he might have been happy about that but he thought that he had a fair trial or else he would've enunciated the procedure to have the PSI set up to the Florida Supreme Court which he didn’t do.

Seems as though my time is gone, I’ll just go to --

Chief Justice Warren E. Burger: Well, you have a lot of time yet.

Mr. Wallace E. Allbritton: I do?

Chief Justice Warren E. Burger: Please, you have 30 minutes.

Mr. Wallace E. Allbritton: Alright sir.

I think the gravamen of petitioner’s complaint is with the discretionary power that is given to the state court trial judges to withhold certain parts of the pre-sentence report here.

Well, now, if he’s arguing abut this, to me he is arguing against the entire criminal process because I frankly tell this court, I know of no way in which the exercise of a reason to judgment can be cut out of the criminal process.

Its in it from beginning to the end.

And in considering the responsibility of a trial judge that is a heavy one.

I think all of us will agree on that.

And particularly, is this true in a capital case?

So then, in the exercise of this awesome responsibility I say to this court that trial judges need help.

They need all the help they can get.

And that is the purpose of the pre-sentence report, is to give trial judges the kind of help that this court said in Woodson, was constitutionally required.

That is to learn about the character and the propensities of the defendant.

Chief Justice Warren E. Burger: Can you think of any reason counsel why, if a motion had been made before the sentencing judge on behalf of the defendant to produce the entire pre-sentence report.

That it should not have been made available to him.

Mr. Wallace E. Allbritton: Absolutely not.

There’s not a thing in there that in my opinion that would keep the trial judge from disclosing the entire PSI, nothing.

Chief Justice Warren E. Burger: Is there anything in the record to indicate why he did not do that on his own motion?

Mr. Wallace E. Allbritton: I don’t know why he didn’t do it.

I -- absolutely not -- but going to that too, the trial judge didn’t say that he relied on the confidential part of the PSI that there were things in there that inflamed him and therefore consequently he imposed the death penalty.

That is just wrong, that’s all.

He didn’t do it.

Unknown Speaker: Did the trial judge indicate publicly that he’d relied other pre-sentence investigation at all.

Mr. Wallace E. Allbritton: Yes, he did, the whole thing.

And the major part of it, defense counsel had the things that could have been controverted.

He had those.

It was only the things that you need the protection of confidentiality to help a judge.

Unknown Speaker: Well, in general, how about the statement that the subject, it spent time in the brig, in the military, now that’s not in the public portion of the PSI and how did he know that the judge had that before him.

It’s a quote of what the defendant has alleged to have said to the probation officer or whoever made the investigation.

Mr. Wallace E. Allbritton: Well, if he said it to the probation officer, it must be accurate then.

Unknown Speaker: Well, but how do we know he said.

He didn’t have a chance to say that’s what I said or that’s different.

I mean, there is nothing in the public part that put him or his lawyer unnoticed that the judge was told he’d been -- he had said that.

Mr. Wallace E. Allbritton: No sir.

There are things in the confidential part that are not in the public part, that’s true.

But I say to you there isn’t anything in there that required the trial judge to disclose it to him at all.

There hadn’t been anything in there that’s inflammatory that would prejudice the trial judge.

Chief Justice Warren E. Burger: We’ll resume there at 1 o’clock counsel.

Mr. Allbritton, do you have anything further?

Mr. Wallace E. Allbritton: Yes I do Mr. Chief Justice, may it please the Court.

I would like restate the fact that under both the state rule and the federal rule, it is discretionary on the part of the trial judge as to whether or not he will disclose the confidential aspect of the pre-sentence report.

Now, then the question would come up, what would be the harm in mandatory disclosure of this confidential part of the PSI?

What harm would it do?

I say, in much every way because first and foremost, it would dry up the sources of information which comprises from which the confidential part of the PSI is made up.

That report then would become nothing more than a mere abstract of public records and then no longer would the trial judge have the benefit of the kind of information that this court said was constitutionally required in order to help him discharge his responsibility in the sentencing procedure.

Unknown Speaker: Where did this court say that?

Mr. Wallace E. Allbritton: Woodson v. North Carolina.

Unknown Speaker: Did that involve a pre-sentence investigation or discretion of the sentencing judge?

Mr. Wallace E. Allbritton: It involves the statute.

Unknown Speaker: That involved a jury, didn’t it?

Mr. Wallace E. Allbritton: It involved the statute too, I know, the jury, yes.

Unknown Speaker: Didn’t it involve the sentencing by the jury and the -- you don’t give a confidential pre-sentence investigation to a jury.

Mr. Wallace E. Allbritton: No.

Unknown Speaker: That is evidence on open court, isn’t it?

Mr. Wallace E. Allbritton: Yes, that’s true.

Unknown Speaker: That was the system, statutory system at issue in the Woodson case, wasn’t it?

Mr. Wallace E. Allbritton: Whatever kind it was, still the judge has to have it.

Chief Justice Warren E. Burger: Well, --

Unknown Speaker: Excuse me.

Chief Justice Warren E. Burger: But suppose that’s what the court said through Mr. Black in Williams against New York.

Mr. Wallace E. Allbritton: Yes it is.

Chief Justice Warren E. Burger: I thought you were quoting from Williams against New York.

Mr. Wallace E. Allbritton: Yes sir.

Let’s think about this for a minute.

In securing information upon which to prosecute a crime, a prosecuting attorney relies on immunity in order to get people to testify in front of a grand jury thus immunity is a tool that he uses to get the information that he needs.

Just so then, I say that confidentiality is the tool that the judge can use in getting the needed information to ensure that a just punishment is meted out to a wrong doer.

But even then, in the exercise of the discretion, if the trial judge feels that the confidential aspect of the PSI is of such gravity, he can in the exercise of his discretion, disclose it to the defense attorney so that he may rebut it if he can.

But petitioner here says -- he says not so.

When a trial judge exercises his discretion against disclosure, it is contended before this court that this, ipso facto constitutes a denial of due process.

It seems to me that the premise that must undergo such an argument as that is that trial judges are simply incapable of separating the wheat from the chaff when reading the PSI and thus whenever the discretion is exercised, against disclosure automatically this results in a due process, a denial of due process.

Now I deny this.

I can’t subscribe to that.

I do not impute that degree of unfairness or lack of impartiality or lack of humanity to the trial judges.

Now, getting to Williams v. New York, Mr. Justice Black said it better than I can when writing for a majority of this court and he said, I quote his words, “the Due Process Clause should not be treated as a devise for freezing the evidential procedure of sentencing in the mold of trial procedure.”

But now it maybe urged well, look, this is a capital case.

We throw all that aside in a capital case.

Well, this court rejected that argument in Williams v. New York.

And again, very briefly I’d like to read and I quote, “It is urged however that we should draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed.

We cannot accept the contention.”

It’s the words of this Court.

And on down, I quote again, “We cannot say that the Due Process Clause renders a sentence void merely because out of court information, excuse me, void merely because a judge gets additional out of court information to assist him in the exercise of this awesome power of imposing the death penalty or sentence.”

Justice John Paul Stevens: Is it not correct that in the Williams case, the out of court information which the judge received was disclosed to the defendant and its counsel in open court.

Mr. Wallace E. Allbritton: No sir.

I don’t agree with that.

Justice John Paul Stevens: The only issue in that case as I read it was the question of confrontation of the out of court sources of evidence.

Mr. Wallace E. Allbritton: Well, Justice Stevens, I didn’t read it the same you did it because the way I read the case, it was not disclosed to the defendant or his attorney and they claim before this court that that constituted a denial of due process and this court said, absolutely not.

And I say that the decision of this court in Woodson is a implicit reaffirmance of the principle of Williams v. New York.

I agree with this court when it said in Proffitt and I quote again very shortly, “It is no longer true that there is no meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases where it is not -- now, this is a simple truth is, if truth can be ever be simple that the pre-sentence report is one of the key instruments used in providing such a meaningful basis that this court referred to in Proffitt.

I cannot subscribe that in each and every instance no matter what the case when a trial judge exercises his discretion not to disclose the confidential aspects of a PSI that this ipso facto constitutes a denial of due process.

This court repudiated that in Williams and the only way I know of to get around it is to (Voice Overlap) from that.

Unknown Speaker: Suppose the trial judge in arriving at his sentence, looked at a pre-sentence report and then said in his findings, I find the following aggravating circumstance and proceeds to find an aggravating circumstance and then says based upon the pre-sentence report.

Mr. Wallace E. Allbritton: Well, in the case that we are thinking about now, the judge read all of the pre-sentence report and -- (Voice Overlap).

Unknown Speaker: He read the presentence report.

He does not reveal anything in the pre-sentence report and, but he finds an aggravating circumstance based upon what he read in the pre-sentence report.

Mr. Wallace E. Allbritton: I beg your pardon sir.

Ithink that was based on what he heard at the sentencing (Voice Overlap).

Unknown Speaker: I know, but let’s supposed the case -- let’s suppose -- I said that suppose a case --

Mr. Wallace E. Allbritton: Well, if we’re going to suppose that then, trial counsel, if he knows his way in and out of the court is going to require that the confidential part be disclosed and if refuses to do that, he can have it put in to transcript on the record on appeal --

Unknown Speaker: Isn't perhaps your strongest point here that the judge guided by the statute found an aggravating circumstance based upon the evidence before the jury namely that the crime was especially heinous and found that there were no mitigating circumstances.

That’s all he found, isn’t it?

Mr. Wallace E. Allbritton: That’s right.

That’s exactly and he found that from the things that were produced at trial and at the sentencing phase.

He did not say that he relied on the PSI at all.

As I read his findings of fact and I think my strongest point here is that ever since the beginning of the PSI, trial judges all over the country and this court have found it very proper to withhold the disclosure of -- sometimes all and at least part of the confidential aspects of the PSI.

Justice Thurgood Marshall: That’s not uniform, there are some that do not follow that rule.

Mr. Wallace E. Allbritton: Well, there are some people -- yes, sir.

Justice Thurgood Marshall: There are some federal courts where the pre-sentence report is filed in the clerk’s office.

Mr. Wallace E. Allbritton: That’s true but I think I speak for the majority that they regard the decision to disclose or not as discretionary with the trial judge and when he doesn’t disclose, it does not constitute a denial of due process.

Let me sum up by saying --

Unknown Speaker: Mr. Allbritton before you do, one of the reasons for not disclosure is to protect informants from possible retaliation by the defendants or things of that nature.

Does that reason or does any reason apply when the defendant is to be killed.

Mr. Wallace E. Allbritton: Yes.

Unknown Speaker: When he is to be executed by judicial due process or --

Mr. Wallace E. Allbritton: I think it does.

Unknown Speaker: How can he retaliate after this all takes place.

Mr. Wallace E. Allbritton: Yes, yes.

If someone wanted to kill me, I have a 20 year son at home, that would be pretty angry about that particularly if he found out that someone put out a bad word on me.

Yes.

The fear of retaliation is there.

The fear of the stigma in the community of being a stupid.

Of course it's there.

People will talk when they know that what they state is going to be held in confidentiality.

That’s the reason for it.

But people are not going to talk to a probation officer when they know that they’re liable to have to come in to court and repeat it and what they say then will become public.

Now, that’s common sense.

I think all of us would admit that, I hope --

Justice Potter Stewart: Did you indicate earlier, General Allbritton that you didn’t understand that the sentencing judge relied on the presentence report.

Mr. Wallace E. Allbritton: Not expressly no -- he relied that among other things Mr. Justice Stewart.

Justice Potter Stewart: It seems to be very expressed, I’m looking at page a 138 of the appendix, you’re familiar with that I gather.

Mr. Wallace E. Allbritton: Yes, sir.

Justice Potter Stewart: Which he says two different times -- he says, first of all he received the presentence investigative report, on the said defendant by -- and received by the state defendant’s attorney of a copy of that portion there after which they are entitled and then he says and after carefully considering and waiting, waiving and reviewing the factual information contained in the said pre-sentence investigation, the undersigned concludes and determines that aggravating circumstances exist to whip itemized as under any sentences the defendant to death.

That’s pretty clear that he did rely on it, isn’t it?

Mr. Wallace E. Allbritton: Not in total, no sir.

That among other things, I can’t say that you relied on the confidential part of it and it doesn’t say so and what -- he just --

Unknown Speaker: No, but he suggested, that was in total think, Mr. Allbritton.

Just whether or not he took it into consideration --

Mr. Wallace E. Allbritton: Yes, he did take it.

That’s the purpose of it sir.

That’s the purpose.

Unknown Speaker: You made it very expressly clear that he did so.

Chief Justice Warren E. Burger: Your time is up Mr. Allbritton.

Mr. Wallace E. Allbritton: Thank you.

Chief Justice Warren E. Burger: Thank you.

Do you have anything further Mr. Livingston?

Rebuttal of Charles H. Livingston

Mr. Charles H. Livingston: Yes Your Honor, may it please the Court.

Chief Justice Warren E. Burger: You have a minute left.

Mr. Charles H. Livingston: Thank you.

How many sir?

Chief Justice Warren E. Burger: One minute.

Mr. Charles H. Livingston: As to Williams, Mr. Justice Stevens is exactly correct, that was the confrontation case.

It was not a disclosure case.

337 U.S. 244 describes how that information was disclosed in open court.

In addition Williams was a pre Furman case also decided obviously before the July 1976 capital cases.

As to the confidential problem, that can be controlled. Federal rule 32 controls, we are not here claiming that a constitutional right to be free from all out of court information.

But we are here saying that we are entitled to know what the judge is using.

If there’s a need to protect somebody.

If there is a need not to disclose, he can disclose that.

Unknown Speaker: Could I ask you, how could the pre-sentence report have influenced or affected the judge's finding that there was the aggravating circumstance of an especially atrocious crime.

Mr. Charles H. Livingston: He could've affected it by knocking out the mitigating circumstances in which the jury --

Unknown Speaker: I am getting to that, how about the aggravating circumstance?

Mr. Charles H. Livingston: That circumstance was in open court before both judge and jury.

Unknown Speaker: So that you put that aside but do you think the pre-sentence report might be relevant to the establishing a mitigating circumstance.

Mr. Charles H. Livingston: Or to the disregarding and mitigating circumstance which necessarily must have been --

Unknown Speaker: I know but he found there were no mitigating circumstance.

Mr. Charles H. Livingston: Correct.

And he found it by reading it, the same information differently than the jury did about the drinking and whatever and the only difference --

Unknown Speaker: Suppose he had no pre-sentence investigation at all and he had disagreed with the jury, he wouldn’t have any complaint then or you’ll have a complaint but not this one.

Mr. Charles H. Livingston: That would not be found upon the confidential report -- the undisclosed, unjustified, unexplained nondisclosure, the confidential portion, no sir, it would not be.

Unknown Speaker: Or do you think there might be something in the pre-sentence report affected his judgment about their being a mitigating circumstance present or not.

Mr. Charles H. Livingston: Sir, I believe that we’re being pushed into speculating as to what effect did his decision making process at this crucial stage and then by being forced to speculate takes out harmless error in any event.

That yes, we are having to guess and I think that’s the most likely operation there.

They caused him to disregard what the jury found to be mitigating.

Unknown Speaker: Are you familiar with the Florida Supreme Court decisions in the Songer against State and Swan against State.

Mr. Charles H. Livingston: Yes sir.

Justice Potter Stewart: Both of which were cited and presently approved in the one of the opinions in Proffitt and each of which approved the use of a presentence investigation report by the sentencing judge under the Florida system, didn’t they?

Mr. Charles H. Livingston: That’s correct Mr. Justice Stewart, neither of which addressed the confidential problem however.

Justice Potter Stewart: Was it clear in each of those cases that there had been a disclosure to the defendant or his counsel of the contents of the pre-sentence investigation.

Mr. Charles H. Livingston: In Songer, I am certain there was a disclosure of the non confidential portion but not the confidential portion.

To swan, I don’t have any present recollection as to that point?

Justice Potter Stewart: Both of those decisions were implicitly approved, weren’t they in the footnote number 9, in one of the opinions in Proffitt.

Mr. Charles H. Livingston: Correct.

Justice Potter Stewart: Well, Signer expressly states that he receive a copy of the PSI and it doesn’t differentiate between the non confidential and the confidential part, yes.

Mr. Charles H. Livingston: That’s correct.

Justice Potter Stewart: Well, then you are mistaken.

Mr. Charles H. Livingston: On what point sir?

Justice Potter Stewart: In saying that they -- there was not a disclosure of the confidential portion of it in Songer.

Mr. Charles H. Livingston: No sir.

The Songer -- it's outside the record.

In Songer, there was a confidential portion, there was a disclosed portion.

The defendant did not get the confidential portion.

The Florida Supreme Court decision addresses the area of the PSI in general but does not address itself to confidential versus disclosed.

Justice Potter Stewart: Of course in Songer or Swan, in one of the cases at least the Florida Supreme Court set aside the death sentence.

Mr. Charles H. Livingston: Had the Swan --

Justice Potter Stewart: Swan.

Mr. Charles H. Livingston: Songer is still under the sentence of death.

Chief Justice Warren E. Burger: I think you said in your opening argument that -- were these case back before the jury you would object to the submission of the pre-sentence report to the jury.

Did I understand you correctly?

Mr. Charles H. Livingston: My understanding at the time of -- that point in the argument Mr. Chief Justice was the information as to the guilt deciding phase of the trial as being collateral incidence relevant to a crime.

If I were his trial counsel I think and the trial counsel would object to this collateral information coming on the guilty, not guilty phase, about the guilty trial.

Chief Justice Warren E. Burger: At that point, the guilt has been determined by the jury, why would that be excludable?

Mr. Charles H. Livingston: No sir, what I was about was -- if there is an effort to it, introduce it at the guilt determination.

The first half of the trial.

Chief Justice Warren E. Burger: We were talking in your opening argument about the possibility of the case being before the sentencing jury after the determination of guilt and I understood you to say that if the case by some chance should get into that posture by virtue of any remand, you would object to the introduction of the report, at that stage, in the sentencing process?

Mr. Charles H. Livingston: Well, my answer may not be responsive, my understanding at the time of making that answer was related to the first half of the trial, it didn’t involve here.

But as to the sentencing jury, our position is that if the state is going to use, if the judge is going to use it to consider it, review it.

That the defendant should at least be entitled to notice of the general nature of it, so if they can't -- they may not be able to keep it up. They can rebut it, clarify it or explain it.

Chief Justice Warren E. Burger: Well, if it went to the sentencing jury, you surely would have a copy of it.

It can't go to the jury without through you, through counsel.

Mr. Charles H. Livingston: Well, one would think the due process clause and the Sixth Amendment would keep it from going to the judge without going through us either under the circumstances of this case.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.