ROBERTS v. LOUISIANA

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Argument of Garland R. Rolling

Chief Justice Warren E. Burger: We will hear arguments next in 76-5206, Roberts against Louisiana.

Mr. Rolling, I think you may proceed whenever you are ready.

Mr. Garland R. Rolling: Mr. Chief Justice and members of the court, may it please the court.

My name is Garland Rolling.

I am here on behalf of the petitioner, Harry Roberts.

Harry Roberts was a young 19-year-old black lad who was convicted by the Criminal District Court for the Parish of Orleans for the killing of a police officer under statute RS 14:30 which was a mandatory death penalty statute.

Part of which has been approved in the prejudice to this case, Stanislaus Roberts v. Louisiana.

I find myself in a rather unique position of having to call the court's attention, a possible jurisdictional problem on a writ that I applied for, in occurrence with 28 USC 1257.

If it may please the court, Harry Roberts’ case was argued and submitted in the Supreme Court of Louisiana.

The death sentence was affirmed and re-hearing was applied before it was denied during the 90-day writ period across the Stanislaus Robert's case came down from this court.

It was too late to have any further hearings before the State Court, so we want to have with the writs of particular court.

I am concerned that if, it may please the court that had the Louisiana Supreme Court had the benefit of Stanislaus Roberts at the time they decided Harry Roberts possibly a different result would have occurred.

Stanislaus Robert, as you know, struck down Section 1 of the RS 14:30 statute, the mandatory death penalty for the killing during an armed robbery.

This maybe merely academic to question of the finality of judgments because certainly if the Supreme Court of the United States sends us back to Supreme Court of Louisiana, the state or the individual could apply for writs and be backed up here in six months to a year.

But I did not want to cross the Court’s intention to whatever consideration they may want to give it.

The second and more basic consideration that we are asking the court for, on behalf of Harry Roberts are the procedural objections that we have to the manner of the coaching of the first-degree murder statute in Louisiana which of course has been re-amended and re-affirmed since the decisions in Proffitt v. Florida and Gregg v. Georgia, and the up cases which came down sometime ago.

The statute provides, of course, the built-in aggravated circumstance of killing a police officer.

It would have been interesting in the outcome of this case, if we could have presented the various mitigating circumstances.

One particular instance is about the case is the defendant took the witness stand on his own behalf and he is continually and vividly denied his guilty in this case, and said it was a case of misidentification.

There was evidence both ways, the jury resolved the facts against him.

There were numerous mitigating circumstances on the case.

The boy had a long juvenile record, he had a problematical home, he had a long history of mental problems.

Possibly, if we would have an opportunity to present this to the jury and accordance with those standards set forth in Gregg v. Georgia and the other cases, we would have a different results here, we would not have the death penalty.

The state kept the benefit of the one aggravating circumstance which was resolved against the defendant but the defense did not have the benefit of the many, many mitigations circumstance which we were not allowed to present.

Concerned about the whole question of cruel and unusual punishment and I may take them the minority view, quite frankly.

I personally feel that cruel and unusual punishment by giving someone life imprisonment is far more severe than putting someone to death in a capital case.

If I had the choice, I would much rather be put to death.

I am deeply concerned about the Johnson Washington Case which has not been bound into the United Reports wherein my good friend, Ado Berry(ph) who resides at St. Charles Parish and who was a police officer was shot down and killed and his assailant was given life imprisonment by this court less than six months ago.

When the court here held that the killing of the Deputy Sheriff did not constitute cruel and unusual punishment.

I beg your pardon, the killing of a Deputy Sheriff, requires a life sentence and to put him to death would be cruel and unusual punishment.

This is just several months ago by this Court and the case of course, Johnson Washington, cited right here in my brief, and it rose -- the two killings arose less than 10 miles apart in two different parishes in the same state.

And it is very difficult for me to understand now how a few months later, Harry Roberts could be possibly jeopardize to...

Unknown Speaker: Well, isn't he had inherent in the Jury System, that is very often, juries on the same criminal conduct will reach different results of man slaughtering in one state might be murdering in other, depending on the attitudes of area.

Mr. Garland R. Rolling: If it may please the Court, and your point is well taken.

The jury can reach different results but the Supreme Court of the United States should not reach different results, if it may please the court, three months apart, whereas, say, where one man can be put to death in March 1977 and one man gets life in December 1976.

Unknown Speaker: We do not sit as a jury to review.

Mr. Garland R. Rolling: Yes Sir, but you sit as a court to tell us what the Law Of The Land is and the Law Of The Land for killing the Deputy Sheriff four months ago was life imprisonment and now we appear today to discuss whether the Law Of Land will be death for killing of policeman.

I am very bothered, I am very disturbed, I do not have solution to it, I just want to present the problem to the court.

Unknown Speaker: Each of these was a mandatory?

Mr. Garland R. Rolling: Yes, same statute.

Murders took place.

Unknown Speaker: Same statute, same state, both mandatory where the jury did not have any discretion.

Mr. Garland R. Rolling: R.S. 1430, killing of a police officer.

Same situation, just the several months apart, December or November whatever it was.

It was life imprisonment.

Now we examine, whether it should be death.

Unknown Speaker: You mean in both cases the death penalty was imposed.

But in the Washington case, this court has set aside the death penalty.

Mr. Garland R. Rolling: This case set aside the death penalty in November and December and sent it back to Louisiana Supreme Court and said that the death penalty for killing the Deputy Sheriff --

Unknown Speaker: That is a mandatory death penalty.

Mr. Garland R. Rolling: A mandatory death penalty that is all we deal we here today.

The death penalty of killing of a Deputy Sheriff in November and December was unconstitutional life imprisonment.

In March, we are discussing whether the death penalty and for killing a policeman in an adjourning parish is constitutional or not.

I am concerned.

Unknown Speaker: What you are saying is that you think this case should be treated exactly the same as Washington against State.

Mr. Garland R. Rolling: I do not think there is any question about it.

Unknown Speaker: I think we have made a mistake in taking it for the issues that are proposed here for discussion.

Mr. Garland R. Rolling: Well, I do not think we can change the decision of this magnitude in three days, at least in three months.

As I say it has not even been bound into legal volumes and we are up here now today again talking.

When we applied for writs in this case, we expected a perfunctory reversal of the death penalty as to the state, as to the legal community.

Unknown Speaker: What was the order in the case you are talking about?

Mr. Garland R. Rolling: I beg your pardon sir?

The Johnson Washington case?

Unknown Speaker: What was the order of this court?

What did it say?

Mr. Garland R. Rolling: The order of this court said that Johnson Washington who was a black male who had been convicted --

Unknown Speaker: Just what did the order say?

Mr. Garland R. Rolling: The order said that the death penalty under RS 14:30 which is the same statute, we are dealing with here today was inherently unconstitutional, it constituted Cruel and Unusual Punishment under the Eighth and Fourteenth Amendment of the United States Constitution.

The case was reversed, it was remanded that the Louisiana Supreme Court.

Unknown Speaker: The case was reversed or the sentence was dissent.

Mr. Garland R. Rolling: The sentence was reversed.

Unknown Speaker: What did it ask the Supreme Court of Louisiana to do?

Mr. Garland R. Rolling: It simply said to proceed consistent with your opinion which was a reversal, which was a set aside for the death penalty for killing of a Deputy Sheriff.

Unknown Speaker: The proceeding is not inconsistent.

Mr. Garland R. Rolling: Right, the proceeding is not inconsistent, yes Sir, that is correct.

So, we set the penalty aside.

But if the penalty was set aside in this court and the case was remanded for reconsideration.

Unknown Speaker: It was remanded for re-sentencing that is right and your specific holding in the Johnson Washington case, if it may please the court was...

Unknown Speaker: Do you have it there?

Mr. Garland R. Rolling: No sir, I do not.

It is cited on my brief.

Unknown Speaker: Really, that is what you are asking us to do here.

Mr. Garland R. Rolling: Well, it is exactly right.

I do not see how we can turn this case on the same statute.

Unknown Speaker: (Inaudible) would be interested in your opponent's reaction to this inquiry.

Mr. Garland R. Rolling: I would like to just call and this goes as approximately the argument of Johnson Washington is printed in all the advance sheets and the court is much more familiar with it than I am.

I do see the possibility of an Equal Protection Argument, the problem of who do we protect and who don’t we protect are particular stats that we are dealing with here today, protects the Deputy Sheriff, the policeman.

It protects the Game warden, for example, and it provides a death penalty of the Game wardens killed, but it doesn’t unprotect me because I am just a lawyer, I am not the Game warden.

So, what do we do the list, am I denied Equal Protection because the Game wardens is protected and I am not protected?

I personally feel slighted by the statute.

If it may please the court, I may further go on to say that there are some witherspoon problems in the Harry Robert’s case which are not made a part of this record but which we would like to reserve if in case they require further proceedings.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Rolling.

Mrs. Korns.

Argument of Louise Korns

Ms Louise Korns: Mr. Chief Justice, may it please the Court.

The State of Louisiana is of the respect review that Louisiana Revised Statute RS 14:30 paragraph 2 which provides for the mandatory death sentence for first-degree murder of the intentional killing of a police officer in the performance of his lawful duty.

Unknown Speaker: I wonder if you would respond to his views about the jurisdictional issue that he has now raised.

Ms Louise Korns: Your Honor, the state’s view about that as it is said in our brief, is that, if he wanted more consideration in the Louisiana Courts, his recourse was to ask for Habeas Corpus and the setting aside the death sentence than to urge all of these questions relating to Louisiana Courts in the Louisiana Courts and not to come up to here and apply for certiorari.

We feel that he is waived all of this by applying for certiorari and particularly after this court issued its narrowing order on November 28th saying it's a sole issue before the court on this grant of certiorari would be limited to the constitutionality of the mandatory death penalty for intentional killing of a police officer under the Louisiana first-degree murder law, this court said it.

Justice Harry A. Blackmun: Mrs. Korns, how do you distinguish in Washington v. Louisiana?

Ms Louise Korns: Distinguish it very easily Mr. Justice Blackmun.

The Court did not write an opinion in that case, it did not address itself to the issues.

It just said that the sentence was set aside as cruel and unusual, that it could not be carried out, it would be cruel and unusual to carry it out, Stanislaus Roberts v. Louisiana, that is all.

The court never addressed itself to the issues and frankly, you would not know what the case contained unless you went back and read the application of certiorari and the supreme court of Louisiana’s opinion.

It is an order, it is not even a procuring opinion, it is just an order of this court and the state does not see how an order without reasons can be binding on, unlike -- there was no oral argument on it.

No presentation of the issues, even when you read the application of the certiorari and Johnson Washington, it does not focus on section two of the statute.

It's just attacks the whole statute just like --

Unknown Speaker: Mrs. Korn, is there any difference between the cases?

Ms Louise Korns: Factually, Your Honor, there is not.

Unknown Speaker: So, either the court was wrong there or he has to change his mind.

Ms Louise Korns: The court overlooks the sophistic matter of issue.

I beg your pardon.

Justice Harry A. Blackmun: Would you face that way, we cannot hear you here.

Do you say that there is no factual distinction?

Ms Louise Korns: Justice Blackmun, there is none.

In both cases, the accused killed a police officer.

In both cases, he was prosecuted for first-degree murder on the Louisiana Revised Statute, Section 2.

Justice Harry A. Blackmun: This is our impression or my impression and I just wanted your concession that you have conceded it.

Ms Louise Korns: I have conceded it, it is identical.

However, the State of Louisiana feels that this blanket order of this court which could have been an oversight or at least the court was not thinking, let us put it in the words of Gregg and its progeny, the court did not focus on the specific issues which were presented to the court here.

That is the difference between the second paragraph of Article 30 and the first paragraph under which Stanislaus Roberts had been convicted which was a felony murder doctrine.

Therefore the citing of Stanislaus Roberts for the dismissal of the -- for the setting aside of the imposition of the death penalty in Johnson Washington just was not in point because Stanislaus Roberts deals with the first section of Article 30 which is a broad, sweeping, felony murder statute which says that anyone who commits a murder while engaged in the commission of a resided number of felonies like arm robbery shall be mandatorily sentenced to this.

Justice Harry A. Blackmun: Mrs. Corns, may I interrupt with one other question.

If the court did make a mistake in the Stanislaus or the Washington case, did not the State of Louisiana make precisely the same mistake in its response to the petition for certiorari?

Did not the state also construe the first Roberts’ cases, covering this case?

Ms Louise Korns: Your Honor, I wrote that application and I did not give any thought either to the problem of differentiating out the two.

Justice Harry A. Blackmun: Now you read the prior Roberts’ opinion that's covering this situation.

Ms Louise Korns: I think I said that if this court did not grant a re-hearing in Stanislaus Roberts, the State of Louisiana probably could not execute Harry Roberts.

That is what I said in my application.

No doubt about it.

Then this court granted certiorari and two weeks later announced this order, that the issue for decision in this case on certiorari before this court would be the constitutionality of the mandatory death sentence on the Louisiana Law for the intentional killing of a police officer.

Now, the State of Louisiana believes that this case can be very easily distinguished from the Stanislaus Roberts case.

Article 30 of the Louisiana Criminal Code before it was amended last Summer following this courts Gregg, et. al decisions provided that first-degree murder is the killing of human being.

Now the first sub-paragraph of that article was the Stanislaus Roberts’ case, the felony murder doctrine which this court threw out in Stanislaus Roberts.

The second paragraph is the one under which the present case and Johnson Washington was brought.

When the offender has a specific intent to kill or inflict right bodily harm upon a police officer, who was engaged in the performance of his duties.

Now, the State of Louisiana’s position is that this is clearly distinguished from the Stanislaus Roberts case because this statute is now withdrawn.

It incorporates a statutory aggravating circumstance.

It is a State of Louisiana’s position that there are no mitigating circumstances possible when a person intentionally kills a police officer in the performance of his lawful duty.

We feel that because of the trial judges’ very careful instruction to the jury in this case in plain everyday language.

The responsive verdicts did not give the jury unfettered discretion and that no appellate review was necessary on the narrow issue of jury capriciousness and so forth by the Louisiana Supreme Court because of the narrow statute that was presented to the jury.

In other words to bring in a verdict of guilty in this case, which would necessarily and mandatorily result in a sentence of death as it did, the jury had to sharply focus on a very narrow set of circumstances that is whether the accused intentionally killed a police officer who was in the performance of his lawful duty.

The fact in this case, there could be no clearer facts in such an issue.

It was a Mardi Gras day in 1974 and Harry Roberts started shooting various people in his neighborhood and wounded a little boy.

The neighbors called the police and officers John Tobin(ph) and Dennis Mclnerney answered the call, dressed in uniform and in a marked police car.

As they approached the scene of the shooting, they were told by a by-stander that the person they wanted was dressed in blue trousers, beige shirt, and was wearing a red cap, he was going over that way.

They proceeded in that direction and just turning the car, and they saw Harry Roberts taking a red cap off his head.

They parked their police car at an angle, right in front of Roberts to get out and talk to him.

Roberts walked up to the police car and shot Officer Mclnerney.

Officer Tobin, as he sat in the car, Officer Mclnerney jumped out and was shot and mortally wounded by Roberts at this time, died within a few seconds.

Officer Tobin, although wounded was able to draw his service revolver and wound Roberts in the leg.

There upon, Roberts ran off in limping and leaving a trail of blood and took refuge in a neighboring house where he was captured a few minutes later by police officers who were brought to the scene by the wounded officer, John Tobin.

Now, the State feels that if ever there is a factual circumstance posing, presenting the intentional killing of a police officer in the performance of his lawful duty, this is it.

Not even any questions to the man, nothing to irritate him or throw him off.

When he saw the police car stopped, he went up to it and shot the first officer sitting in the car.

The second officer killed him as he got out to question him.

The State of Louisiana feels that under this court’s decision in Gregg v. Georgia, Proffitt v. Florida and so forth, Stanislaus Roberts v. Louisiana, in which this court, time and again, in footnotes and in dicta cut out from its opinion narrow, specifically drawn statute which focused on particular circumstances that the jury would have before them.

Time and again, this court cut those out.

That is what we have here.

Moreover, this Court in those cases, specifically approved Georgia’s and Florida’s bifurcated jury in which the jury was to consider various circumstances aggravating and mitigating.

One of the aggravating circumstances approved by this court, in those cases was the circumstance which provided which the jury must consider on to Florida and Georgia law and under the uniform criminal codes and that are universally approved.

That is that the murderer could -- either during the course of a lawful arrest or that the person intentionally killed was a uniformed police officer or police officer on duty.

It elements to the same thing, a peace officer in the performance of his lawful duty, the Louisiana statute presents this very clearly to the jury.

So, it is narrowly drawn, it incorporates an aggravating circumstance.

Now, the State of Louisiana takes the position that there are no mitigating circumstances that need to be given to the jury when a police officer on duty is killed.

It is as simple as that.

If our society is to exist and if one or two policeman are going to control groups of violent people, mobs, and so forth, continually being called to investigate dangerous situations such as we have in the present case, that there are no mitigating circumstances which will excuse a person for gunning down a police officer engaged in the performance of his duty and is therefore, the lack of mitigating circumstances having been presented to the jury in a special sentencing procedure.

Of course, all these mitigating circumstances can always be presented to the jury during the trial on the merits.

In argument to the juries, anything like insanity or drunkenness or youth or first defender can always be presented to the jury in the trial on the merits, it is not as though they don’t hear mitigating circumstances.

And State of Louisiana further believes that the responsive verdict system which this court seemed to disapprove of in Stanislaus Roberts, in no way invalidates the present mandatory death sentence because of the trial judge's instructions which we have forwarded to this court, which were not included in the record but we have sent to this court.

This court will see that the trial judge very patiently and in everyday language explained to the jury, that first-degree murder and he would be sentenced to death, if you find so and so, if you find that he was not a police officer, second-degree murder.

If you find that there was provocation, man slaughter and so forth.

For the same reason, we feel that the lack of appellate review by the Louisiana Supreme Court does not invalidate the mandatory death sentence here either because of the fact that the jury in effect was given such strict guidelines for its deliberations and whether it should bring in a verdict of guilty as charged which would result in a mandatory death sentence that there was no leeway for capriciousness and so forth which this court deplored in Gregg v. Georgia and Stanislaus Roberts and so forth.

So, if the court has no questions herein.

Justice John Paul Stevens: I have one question.

The Louisiana Supreme Court construed the statute on the intent element to require that the defendant know that the victim was a police officer.

Ms Louise Korns: Mr. Justice Stevens, such a question has never presented itself as far as I know, you see, in the instant case, the officer was dressed in uniform and they were riding in a police car and there is no doubt about it.

Now the trial judge in the present case said that the difference between the guilty as charge which will result in a mandatory death sentence and first responsive verdict of guilty as second-degree murder, but the one element of difference in the crimes would be that the victim was a police officer.

Justice John Paul Stevens: But it has an answer to the question.

Say, if he had a plan -- an officer in plain clothes in an ambiguous circumstance.

Ms Louise Korns: I am sure, he would have and I would say that it would have to be reasonably apparent that the man was a police officer.

I would think but the court has not passed on it.

Justice Harry A. Blackmun: Mrs. Corns, I have a question.

What is happened in the Washington case?

Have you filed a petition for re-hearing?

Ms Louise Korns: Yes, Your Honor, it's pending on applications for re-hearing in the Louisiana Supreme Court on application of the state.

Justice Harry A. Blackmun: It remains un-acted upon it.

Ms Louise Korns: Yes, Your Honor.

Unknown Speaker: Not in this court?

Have you applied...

Ms Louise Korns: We applied for a re-hearing in this court at the same, we applied for re-hearing in Stanislaus Roberts.

Unknown Speaker: And what happened?

Ms Louise Korns: This Court denied the re-hearing in both.

Unknown Speaker: But there is no petition for re-hearing pending here?

Ms Louise Korns: Not here.

Unknown Speaker: Not here.

Ms Louise Korns: I understood Mr. Justice --

Unknown Speaker: It was directed to the Louisiana Court and that is still pending.

Ms Louise Korns: It is pending.

Unknown Speaker: And that is in the Washington case.

Ms Louise Korns: The Johnson Washington case, he being also convicted of a murder of a peace officer, a Sheriff Ado Burry(ph).

Unknown Speaker: Do you think, they are holding that pending?

Ms Louise Korns: I am sure they are.

Any further questions from the court on State of Louisiana or the rest.

Thank You, Mr. Chief Justice.

Chief Justice Warren E. Burger: No. Mr. rolling, do you have anything further?

Rebuttal of Garland R. Rolling

Mr. Garland R. Rolling: I would like to make one or two comments to that, please.

Chief Justice Warren E. Burger: Well, then I will -- excuse me.

Mr. Orenstein has a little time left here.

I have observed that you are right in the time here.

Mr. Orenstein.

Argument of Jules E. Orenstein

Mr. Jules E. Orenstein: Mr. Chief Justice and may it please the Court.

I am Jules E. Orenstein, an Assistant Attorney General of the State of New York of counsel to the amicus curiae in this case, the Honorable Louis J. Lefkowitz, Attorney General of the State of New York.

We appear here in support of the position of the State of Louisiana and in support of the concept that a mandatory death penalty for the killing of a police officer is constitutionally acceptable.

Of necessity, our argument must be of an empirical or pragmatic nature.

Our starting point, I think, as far as our position is concerned has its genesis and the plurality, Footnote 7, I believe in the case decided last July, in Woodson v. North Carolina.

As we read that Footnote and the opinion of the plurality and the comments by other Justices of this court and their dissents.

There was reserve for a future date, the determination of the question whether or not, a unique category of homicidal offense could in certain circumstances justify the imposition of the death penalty.

We say that the killing of a police officer is another one of those few narrow situations in which the infliction of the death penalty mandatorily will sufficiently justify under today’s contemporary standard, the infliction of this particular death penalty.

Just this last week, within the last week, last Tuesday in regard with the Florida case, there were some words by the plurality in that decision which I think are very pertinent here.

This court, plurality opinion stated it is a vital importance to the defendant and the community that any decision to impose this death sentence be and appear to be based on reason rather than caprice or emotion.

I think if we had ever had a situation where the death penalty could be imposed mandatorily based upon reason, we have those reasons here in the situation; the limited narrow situation where a police officer has been killed in the line of duty by a person who knew or should have known that the gentleman who he killed was a police officer.

Empirically, we have seen some statistics cited by our fellow amici at the joint, as I term it, the joint law enforcement, amici brief by the National District Attorneys, Association American’s For Law Enforcement, International Conference of Police Chiefs, and the National Sheriffs Association.

I think, the thing that really screams and cries out for a ruling of protection for this class of victim, the peace officer, all of the statistics that have been compiled, namely from 1966 through 1975 inclusive, you had 1203 police officers killed in the line of duty.

The numbers doubled between 1966, when you had 50 and some odd officers, they went into the 120s and 130s by the time we hit the 70s, I think the latest figure in 1974 was 132, we had a 129 in 1975.

Now, this ought to tell us something.

We have been speaking in terms and I believe the plurality opinion and most of the opinions of this court, since last July have spoken in terms of the need for the protection of society or the general need to protect society.

But I think here, we have a special category or group which deems it necessary to have a specific protection of that group.

These people are exposed, their exposure is terrible and it is constant.

The figures justify the statement.

If as this court has stated with regard to the correctional officer that he may be deemed the unique circumstance, if he happens to be killed in the line of duty while guarding some prisoners in a correctional setting.

The exposure of those correctional officers is far less than the exposure of the police officer who is in the line of duty.

Unknown Speaker: Except, for the fact that the correctional officer is unarmed.

Mr. Jules E. Orenstein: Some maybe, Mr. Justice.

Unknown Speaker: Do you know they are unarmed inside the walls.

Mr. Jules E. Orenstein: Well, there may be, I think, there is a justifiable reason for that if they are unarmed because they do.

Unknown Speaker: How do you say that they do not use that for your policeman.

Mr. Jules E. Orenstein: Well, you do have more of a controlled setting and I think the reason this court may have -- one of the reasons, this court set forth.

Justice Thurgood Marshall: If he is out out there.

Mr. Jules E. Orenstein: Well exactly, that is the point I make Mr. Justice Marshall, he is exposed.

Certainly, there would be no deterrence in the correctional officers’ situation if the officer was killed by a life-timer and what does the perpetrator have to look forward to in anticipation of further or increased punishment.

You have done actually nothing to him and in fact all you have done is encouraged him to possibly kill or murder the correctional officer.

Justice Thurgood Marshall: What this men does when one of them is murdered in the other states who do not have death penalty?

Mr. Jules E. Orenstein: Well, Your Honor, I do not know what they do in the other states but I know a certain state such as the State I represent, certainly have a problem in the criminal justice field and we certainly have problems which are unique and different not only in the number of crimes committed but in the type of crimes committed.

All urban areas, I think, have far greater problem and say a like the state with all do respect to our sister state of Maine, they do not have a situation we have.

They do not have the constant headlines screaming about homicides not only of correctional people or peace officers but ordinary citizens who have been the subject or victim of a homicide.

I would also like to emphasize and I have set forth certain portions within our brief of the experience factor that certain police officer personnel have experienced.

Now, they say from their experience, statistics aside that when they have talked to possible perpetrators or perpetrators in the past, they have found that the threat of a possible death penalty may very possibly and in fact, in case it has stated that trigger finger or whatever other weapon was to be used from inflicting the assault or murder upon the police officer.

In addition, I think the statistics of the California and the Joint Law Enforcement amici brief set forth the number of assaults upon police officers, in the year 1975 along which exceeded over 44,000 assaults.

I think, it was 44,800 and some odd number of assaults close to 45,000.

In addition, plurality of this court in the Woodson and the Stanislaus Roberts cases spoke in terms of the fact that there was defective in these courts, in the plurality opinion, the fact that in a mandatory situation, there was no one to really pass upon such -- this nature of the crime, the character or record of the particular defendant.

Now, I say and we say in this particular situation dealing with law enforcement personnel.

The nature of the crime speaks for itself.

You have a police officer; the elements are there, the intentional killing of a police officer on duty.

The act itself by the defendant or perpetrator of killing a police officer under these circumstances certainly, gives us an idea as to his character.

Another interesting statistic I think which may feel the gap in the minds of some members of this court with respect to the lack of knowledge of the record of the perpetrator, can be found in those statistics on Page 12 of the amici brief, the Joint Law Enforcement brief, where they set forth a very telling factor.

A 1438 persons identified in the killing of law enforcement officers between 1966 and 1975, 76% of them had records of prior encounters with the criminal justice process and of that number 56% had previous records convictions.

So, taking these factors all together, we are of the opinion that one can harmonize these particular groups of peace officers and their particular situation with the recent July opinions of this court including the plurality opinion.

We think we can satisfy and have satisfied the fact that these factors are present.

They are built in, they are subsumed by a jury verdict finding a particular perpetrator of not guilty beyond a reasonable doubt.

New York and many of our jurisdictions, there is fair opportunity to present many of the conventional defenses that one finds in the criminal trial process.

Justice Potter Stewart: General Orenstein, what do you do with the court’s recent decisions in the three cases of Green v. Oklahoma, Sparks v. North Carolina, and Washington v. Louisiana.

Mr. Jules E. Orenstein: I suggested in our brief Mr. Justice Stewart that one; it was very possible for this court to have overlooked the situation that we were dealing with peace officers.

I pointed out that at that time, on July 6th, I believe it was, this court came down with many, many orders, I think I counted 34 to 36, in which numerous petitions for certiorari which involved the death penalty from North Carolina, Louisiana, and Oklahoma was summarily reversed, I see my time is up.

Do you wish me to continue?

Justice Potter Stewart: No, you have answered the question.

Mr. Jules E. Orenstein: That is my answer sir.

I think there was a mistake made; otherwise we would not be here today.

Thank you for the honor and privilege.

Yes, Justice Blackmun.

Justice Harry A. Blackmun: It has confused the New York situation under your statute for you haven’t it?

Mr. Jules E. Orenstein: Oh it has, we do presently have two people on death row, one for the killing of an officer, a police officer in the line of duty, and the other the killing of a correctional officer by a person who is already charged with murder.

Thank you for the honor and privilege of appearing here.

Rebuttal of Garland R. Rolling

Mr. Garland R. Rolling: As this occurred, I would like to just call the Court's attention on the two factors; one is on the finality of the Johnson Washington case and the re-hearing of the state court.

I think, if it may please of court, law is that the at the Johnson Washington case is final, when you denied your re-hearing here, it certain supersedes any potential opinion of Louisiana Supreme Court could render.

I think that Johnson Washington will be in jail for whatever time, the law prescribes but there is no way that this Harry Roberts case will in any way affect Johnson Washington’s case because of your previous denial of a re-hearing.

I would like to further call the Court's attention on that, have a basic disagreement with my colleague Mrs. Korns on my right under this existing law to submit mitigated circumstances to the jury during the trial.

There is no way that I could get up there, or any other counsel would get up there and spend four hours before the jury and tell the jury during the course of the guilty or innocence trial, 30 reasons why you should not execute this particular individual without saying look, ladies and gentleman of the jury, this man is guilty and here's why you should not execute him.

In fact, it would not even have a guilty or innocence trial if that was truly prohibited from doing it, unless you want to place yourself in that particular procedural position.

The last thing is, part of it, at my conclusion, all of us are opposed to crime.

God only knows, I do not want to see anybody killed particularly police officers or particularly agents of the state or anybody at all.

But possibly if we are give it an opportunity to have these sense in hearings which this court has announced as a principal Law Of The Land possibly can get some testimony, possibly can look into the background of some of these criminals, possibly we can find out why Officer Mclnerney was killed, and remember my particular client denied his guilt at all times but possibly we could find out, what is wrong and what we can do as individuals are human beings to correct this people, to prevent this from happening in the future.

If we do not look into the cause of the crime, we never are going to find out what to do to prevent the crime.

Unknown Speaker: From the question of the merits which you pressed for the second time, do you challenge Mrs. Korns' statement that your client was trialed right from the place where he shot the police officers and found them in house with the gun?

Is that being questioned?

Mr. Garland R. Rolling: My client testified, got on the witness stand, and took the witness stand, and remember this is a 19-year-old uneducated youth versus the full force in effect of the intellect of the Attorney General’s officers in State of Louisiana and matched with the Attorney General for an hour or two hours, and he always said that he was not the one that did it.

This is Mardi Gras in New Orleans.

There are 9,000 people who wear red bandanas on their head, everybody customs there was a million people on the street.

Unknown Speaker: But was he shot in the leg?

Mr. Garland R. Rolling: He was shot in the leg and his testimony was that he was shot in the leg by unknown assailant and he run into this particular house to use the phone to call the police and to call for help.

Now, the jury resolved the facts against him.

I do not know who is right, I do not know who is wrong.

I do not know which facts are correct or which facts are incorrect.

But there was very serious factual dispute in this case.

We lost, and I can certainly understand how a reasonable man could have resolved the facts against him.Justice,

Just as I think a reasonable man could have resolved the facts at his favor and nobody really knew what the jury was going to do.

But they are against this and that is why we are here.

Thank you, it was my pleasure for being here.

Chief Justice Warren E. Burger: Thank you Mrs. Korns.

Thank you gentlemen.

The case is submitted.