BELL v. OHIO

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Argument of H. Fred Hoefle

Chief Justice Warren E. Burger: We will hear arguments next in Bell against Ohio, 6513.

Mr. Hoefle you may proceed whenever you are ready.

Mr. H. Fred Hoefle: Mr. Chief Justice and may it please the Court.

Before commencing with the more formal part of the argument, I think it would be helpful to delineate the issues briefly and to go into the Ohio statute, both as the legislative history has developed it and as it is operational at the present time.

The basic issues that we see in the challenge of the constitutionality of the statute, are, first is the Ohio statute place unconstitutional limitations upon the meaningful consideration of mitigating factors.

Secondly, whether the Ohio capital mitigation set forth in the statute, so narrowly -- is so narrowly circumscribed by the statutes and further by the judicial clause put on it by the Ohio Supreme Court that it precludes consideration of these important factors, and therefore, is virtually a mandatory, and therefore, unconstitutional capital system.

Finally does the Ohio statute permit a sentence or even require a death sentence which is grossly disproportionate to such as to violate the constitution and we claim that the answer to those issues are affirmative in all three instances.

The Ohio capital statute presently in affect had its genesis before the decision of this Court in Furman as part of an overhaul of all of Ohio's criminal statutes.

When it was first introduced and passed by the Ohio House, it was a model of constitutionality as we have come to see from the Gregg cases.

It had open ended, broad mitigating factors included.

It had jury participation in the sentencing process guaranteed.

It had a broad roster of aggravating circumstances and the statutes provided for a bifurcated proceedings.

While that bill had passed the house and was presently or was at time in the Senate of Ohio, this Court decided the Furman case and the Ohio Senate felt required by Furman, due to its own legislative service committee's recommendations which are cited in the Amicus Brief that to permit discretion even though there were specific mitigating factors enumerated to permit any discretion might be to resolve in the statutes being declared unconstitutional under Furman.

So the final bill as it was passed, retained the bifurcated proceedings, retained all of the, I believe eight aggravating circumstances.

The mitigating circumstances which were open ended were illuminated eliminated and, but three narrow mitigating circumstances were put into the statute.

Also omitted from the final version was jury participation in sentencing.

We feel that the Ohio Legislature has did the legislatures in Louisiana and North Carolina, misconstrued from it.

They felt I think that Furman was -- stood for the position that any discretion in the part of sentencing would be unconstitutional.

In the present statutes, two statutes within the same group, specifically remove discretion from the Trial Court in sentencing.

2929.03(E) which we have cited on page 5 of our brief, indicates that if the Court finds that none of the mitigating circumstances listed in Division B of 2929.04, the revise code, is established by preponderance of the evidence, it shall impose sentence of death on the offender, otherwise it shall impose sentence of life imprisonment on the offender.

Now, it is fairly clear in itself, but they go on, on page 6 of our brief it is cited, they repeat this and this is 2929.04(B) down at the bottom of the page where the three mitigating circumstances which we will discuss in a moment are listed.

Again, it states that death penalty is precluded when considering the nature and circumstances of the offense, the history character or condition of the offender, one or more of the following is established by a preponderance of the evidence is precluded.

So the sentencing really has no discretion at all under the Ohio statute.

If the facts are -- as found to constitute a mitigating circumstance, then the offender will live.

If the facts do not constitute one of the three statutory mitigating factors, he will die. So there is no sentencing discretion whatsoever.

Even more significant change that the Ohio Senate made in the statute in response to Furman was the narrowing of the mitigating factors.

The broad open ended mitigating factor was eliminated, but three remained.

I would distinguish that from I believe eight in Florida and the open ended statutes in the Texas and Georgia statutes.

The most important of the mitigating circumstances because it is the only mitigating circumstance that has anything at all to do with the personality and the individual offender is the third and that provides that the death penalty is precluded if the offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity.

Psychosis has been defined as a major severe form of mental disorder or disease that is Random House Dictionary's definition and Webster as the aggitive profound mental disease.

So, either a person who is --

Chief Justice Warren E. Burger: How does that compare with the American Psychiatric Association definition?

Mr. H. Fred Hoefle: On psychosis, I believe it is close Your Honor.

I frankly have not seen the American Psychiatric definition of psychosis.

I believe that is fairly close.

At any rate I think it is severe.

My college psychiatric course said the way to distinguish a psychotic, it has to go to the hospital and a neurotic need not.

That is maybe a lay definition or distinction.

But the mental deficiency is the key because that is not defined in the statute, but the Ohio Supreme Court has construed it and they have construed it as being equivalent to mental retardation.

This was in their first post Furman capital case, State v. Bailus.

They cited two medical dictionaries, case law and the court psychiatrist in that particular case.

In the medical dictionaries they cite -- indicate to further characterize what retardation is, is that a moron is the highest retard in intelligence and an idiot is the lowest in an imbecile is in between.

The authorities, psychiatric authorities cited in our brief indicated that a moron is someone with an IQ of 70 or less, a mental age of 12 or less and the other two are below that.

Therefore, under the Ohio statute, under this third mitigating circumstance, the only one dealing with the offender himself, only a psychotic, a moron, an imbecile or an idiot has a reasonable chance of surviving the sentencing process and then only if that condition, that mental condition caused the offense.

The other statutory factors --

Chief Justice Warren E. Burger: That is a fact finding, is it not?

Mr. H. Fred Hoefle: That is, it is strictly fact finding, yes sir.

And that is fact finding by the Trial Judge where the three, if it is a one, two or three judge panel as we did, then the three judges decide and they must unanimously find that none of these circumstances are present before they can sentence a man to death.

If one of the judges finds a circumstance present then the sentence is life, even though the other two may feel that the death penalty is warned.

The first of these three mitigating circumstances as it appears in the statute is victim inducement, that the victim induced or facilitated his own death.

If this can be shown to a preponderance, then the offender will escape with his life.

However, we must remember that we are talking about an aggravated murder situation.

Not all taking of life is aggravated murder.

One of the aggravating circumstances must be present.

The only one that I could conceive would be murder for hire, because that would involve the victim hiring his own killer.

I suppose if a case like that ever comes along, perhaps the victim inducement mitigation will have some significance, but we feel that it is basically illusory.

Although, there was one Northern Ohio appellate case where the court did find victim inducement where the victim was armed and it involved a narcotics purchase.

However, that unreported appellate case, added another element.

They said, that the only time you can even consider using victim inducement is mitigation as if the victim himself is acting unlawfully and that condition is not even in the statute.

The final mitigating circumstance is that it is unlikely that the offense would have been committed, but for the fact that the offender was under a duress, coercion or strong provocation.

Duress and coercion though has been interpreted in Ohio's capital context by the Ohio Supreme Court is such compulsion that will overcome the mind or volition of the defendant, so that he acted other than he would ordinarily have acted in those circumstances which we feel at least more as the distinction if any between mitigating duress and coercion and the duress and coercion which is a defense to any crime.

In our own case, they have further blurred that distinction by applying the doctrine of withdrawal, on page 142 of the Appendix.

The court said, even if it were believe that appellant, that is Bell, was apprehensive of Hall and was forced to go along with the crimes, the hard fact remains that appellant could very easily have quit the scheme when following in another car.

And in the other case, the Woods case that we have referred to in our brief, the Ohio Supreme Court has in discussing the doctrine of withdrawal, withdrawal as applied to the defensive of duress, really blurred the distinction between the two.

There really is no distinction.

If a defendant is acting of his own free mind or will, then he is under such duress or coercion that makes him not guilty of the offense at all and he will not even have to worry about getting to a penalty trial, because he will be found not guilty at the close of the trial.

Now, it is important to note here, extremely important that these are three exclusive mitigating factors.

There are no other mitigating factors in Ohio, either in the statute, or in the interpretation.

There is a lot of talk about some other factors in some of the cases, but there are no other mitigating factors.

In our particular case, where we have alleged several mitigating factors which this Court has held to be constitutionally significant which we will discuss in a moment that basically they are the youth of the offender, his non participation in the offense, his cooperation with police, his drug involvement, his emotional disturbance, his domination by someone else, none of these factors were considered at least independently.

The Ohio Supreme Court said and this is at A 141 of the Appendix, we will examine each of the three mitigating circumstances provided for in the statute to determine if the evidence established with such a mitigating factor existed, that is the scope of the inquiry in an Ohio penalty trial and that is the only scope.

Chief Justice Warren E. Burger: Well, if you place very much rest on this domination of the one by the other, you must also -- we must also, I suppose consider that at the time he was arrested, he was engaged in the same kind of an enterprise again.

So, you have to make out a case of continuing domination of the one by the other, do you not?

Mr. H. Fred Hoefle: That is correct Your Honor and we would point out to the Court in that connection that at the time of the second event the next day, Hall still had the shotgun.

He was still ordering Bell around, as testimony of the witness indicated.

Bell was 16 years old, 50 some miles away from the home having been driven there by Hall, he did not know where he was.

Chief Justice Warren E. Burger: No opportunity in identical of 48 hours to separate himself?

Mr. H. Fred Hoefle: I would think the Court might reasonably conclude there would have been an opportunity before the killing of Graber, but afterwards I would say definitely not.

Bell was still under the influence of drugs.

Hall drove the two to Dayton and as far as we know Bell had never been there.

Hall still had the shotgun.

The fact is I think that if we are talking about strong domination, that is the kind of -- if it is not particularly strong domination, maybe he would have broken away.

But strong domination which I think has been recognized as mitigating is the type of thing which will coerce someone in going along.

The fact remains further in discussing the mental deficiency aspect as defined by the Ohio Supreme Court that the court has had many cases before it where mental problems have been alleged and in not one has it reversed the sentence of death.

In fact it --

Unknown Speaker: Have not the court, the Ohio Court of Appeals reversed a number of them?

Mr. H. Fred Hoefle: Not on mental deficiency to my knowledge, there may have been.

We do not get the unreported decisions.

I cannot say that one case cited by the respondent Haynes and Lucas which I referred to before on victim inducement, that was reversed.

Unknown Speaker: Alright, are you saying that the Court of Appeals in Ohio had not reversed or set aside the death penalty?

Mr. H. Fred Hoefle: They have reversed the cases in which the death penalty was involved.

In our experience in Hamilton County, those cases were reversed on way that the evidence --

Unknown Speaker: I am asking about the state, not Hamilton County?

Mr. H. Fred Hoefle: I see, other Court of Appeals throughout the state?

Unknown Speaker: Yes.

Mr. H. Fred Hoefle: I am not aware of any except in our own jurisdiction and the one --

Unknown Speaker: Well, I should think you would be when you make the statement that the Supreme Court of Ohio has never set aside the death penalty.

You have another appellate court there.

I should think you would know what the facts are before you make that kind of a statement?

Mr. H. Fred Hoefle: I see.

Well, I would like to stand correct that the Ohio Supreme Court just recently did reverse a death penalty because of a procedural irregularity in the penalty trial, but not because the death penalty mitigation factors were too narrow or because the factor was met by the evidence.

I am certain that there maybe some, but I do not want to tell you that I believe that there are and not be able to tell you what they are.

Haynes and Lucas, I am aware of in the Fifth Appellate District.

Justice Potter Stewart: Unlike some states, unless the situation has changed in Ohio, the Courts of Appeals have territorial jurisdiction and the only statewide law in Ohio is pronounced by the Supreme Court of Ohio?

Mr. H. Fred Hoefle: That is exactly correct

Justice Potter Stewart: That is still true?

Mr. H. Fred Hoefle: Yes sir, that is still true.

Justice Potter Stewart: And that the law of the -- as enunciated by the Court of Appeals for the Fifth Appellate District is not binding at all for example in the First Appellate District in Ohio?

Mr. H. Fred Hoefle: I agree with that and I would like to point out some --

Justice Potter Stewart: Has it changed, has it changed?

Mr. H. Fred Hoefle: No, it has not changed.

It is still that way Your Honor and the appellate decisions on aggravated murder cases are not being reported in Ohio.

Those -- if a death penalty, by and enlarge, if a death penalty is affirmed, there is an automatic right of appeal to the Ohio Supreme Court and those cases, I do not know what the reason is, it is apparently because the Ohio Supreme Court, all of its opinions are published, they do not bother to publish most of the intermediate appellate decisions which is why we --

Justice Potter Stewart: Which is why (Voice Overlap) that unpublished opinions cannot be considered to be the law even in the circuit, even in that district?

Mr. H. Fred Hoefle: Well, there is a statute and we cited that in our reply brief.

I will admit that it is not always observed that it is --

Justice Potter Stewart: But there is a statute that says so?

Mr. H. Fred Hoefle: There is a statute that says so, but I would have to admit that I cite unreported case myself when it suits my purpose in that Court of Appeals, if I know about it.

Justice Thurgood Marshall: And the published opinions are not good either, (Inaudible).

Justice Potter Stewart: (Inaudible)

Justice Thurgood Marshall: I am talking about the Supreme Court?

Mr. H. Fred Hoefle: I see, is that a question or a comment, Your Honor?[Laughter]

Justice Thurgood Marshall: Either, is it still true?

Mr. H. Fred Hoefle: I think so.

Justice Potter Stewart: At least in per curium opinions?

Mr. H. Fred Hoefle: Yes, per curium opinions of the Ohio Supreme Court are all the law other than that it is only the syllabus.

Chief Justice Warren E. Burger: Well, if some of the district Courts of Appeals had in the aggregate that reversed a dozen death penalties last year.

It would not be any great difficulty in finding out that ultimate fact, would there be?

Mr. H. Fred Hoefle: I would not think so, I would not think so.

The point is that the Ohio Supreme Court has not and again they are the -- that court is the court which says what the law of Ohio is and we are here on the Ohio statute and what that means.

Chief Justice Warren E. Burger: You know whether in any case where the Court of Appeals allowed the death penalties stand that there was an absence of an appeal to the state Supreme Court?

Mr. H. Fred Hoefle: I do not know of any such case Your Honor.

Chief Justice Warren E. Burger: They all went to the Supreme Court in other words.

Mr. H. Fred Hoefle: They all do.

Chief Justice Warren E. Burger: On appeal?

Mr. H. Fred Hoefle: It is not strictly automatic but --

Chief Justice Warren E. Burger: It is mandatory?

Mr. H. Fred Hoefle: It is mandatory that they take it if the lawyer files the paper, yes sir.

I assume all the lawyers are filing the papers in death penalty cases.

There are several relevant facts in our case which were not given meaningful consideration as the constitution requires.

Mr. Bell was 16 years of age when the offense was committed and in our reply brief we have cited statistics that only three individuals in our country since 1955 of over 350 who were executed were under the age of 18.

So whether it is cruel or not to execute a child, it is at least unusual.

Justice Thurgood Marshall: Well, how old is he now?

Mr. H. Fred Hoefle: He is 20 at the present time, I would submit --

Justice Thurgood Marshall: (Inaudible)

Mr. H. Fred Hoefle: Perhaps not, it depends on whether the states in those cases sentenced a child and then waited until they grew up before they executed them.

I do not know.

That would be, I would submit, if not unusual, certainly cruel to do.

Justice Thurgood Marshall: Is that unusual for a capital case to be decided in than less two years?

Mr. H. Fred Hoefle: I would say it is unusual.

Justice Thurgood Marshall: So, those are about 18 or 16 when they committed the crime?

Mr. H. Fred Hoefle: That the statistics did not tell us, Your Honor.

Justice Potter Stewart: In any other Ohio capital case under this present and rather new statute has a death sentence been affirmed with respect to anybody who was as young as Bell at the time the commission of the offense?

Mr. H. Fred Hoefle: I do not believe so.

There was Bates I believe, he was 18 or 19 I am not certain.

Justice Potter Stewart: At the time --

Mr. H. Fred Hoefle: At the time of the offense.

I do not think he was a juvenile.

Now, Bell was a juvenile, the first case that the Ohio Supreme Court came out with.

I believe he was 17 at the time.

He already had a prior capital conviction on his record even at that time.

Justice Potter Stewart: There is a -- this proceeding began in the Juvenile Court, did it not, as required by law because of Bell's age and then there was a waiver or surrender of juvenile court jurisdiction to the common police court, is that right?

Mr. H. Fred Hoefle: Yes sir, there is a finding, it is in page 1 in the Appendix, setting forth and it does comply with the statute, that indicate the court did have to look into all these factors, before it can bind them over and one of which is whether he will be – they will be able to help him with whatever facilities they have.

I am advised also that in the Harris case the defendant was 17 at the time of the offense.

Justice Thurgood Marshall: Well, Haley case was about 16, was it not?

Mr. H. Fred Hoefle: I am sorry.

Justice Thurgood Marshall: Haley against Ohio?

Mr. H. Fred Hoefle: Oh! Yes sir, I believe he was, but that was not the --

Justice Potter Stewart: Under this present statute?

Justice Thurgood Marshall: And we had waived it back to the court?

Justice Potter Stewart: Yes sir.

Justice Potter Stewart: Under this present statute, Harris was 17?

Justice Thurgood Marshall: Yes sir, I believe and --

Justice Potter Stewart: And his death sentence has been affirmed by the Supreme Court of Ohio, has it not?

Mr. H. Fred Hoefle: Yes sir, Bailus was 17, I believe Royster was 17.

So, there are --

Justice Potter Stewart: Juvenile court has put compulsory jurisdiction up to a certain age and then at least preliminary jurisdiction which it can waive to the common police court between certain age and between what, 16 and 18, is it not?

Mr. H. Fred Hoefle: That is correct and I think we are finding that almost any juvenile charged with a serious felony over the age of 16, it is an almost automatic.

Justice Potter Stewart: But under 16, he cannot be bound over to the common police court, is that the law?

Mr. H. Fred Hoefle: That is my understanding.

That is my understanding.

There are other mitigating circumstances exhibited by Bell.

He was cooperative with the police.

I expect the respondent to quote some language has he already has in his brief about how some of the factors we are talking about, youth etcetera can be shoehorned in or funneled into one of the Ohio mitigating circumstance, but there are some that are important, that cannot be and cooperation with police as one of them.

The man was arrested, an hour or two later he was advised of his rights, he was not beaten, not abused.

He told them what happened and he gave the first full complete story of version of what happened.

He cooperated, that is no place, even though in the Gregg and the Harry Roberts case, this Court indicated that was important.

In the Ohio scheme it cannot get any mitigating effect.

Chief Justice Warren E. Burger: Are you suggesting that we could review that factor here after the Ohio Supreme Court has read it and rejected it?

Mr. H. Fred Hoefle: Yes sir, because I do not think they -- in the context of the constitutionality of the statute it was not considered.

I do not think they weighted or rejected.

They just looked at whatever facts were put in there and the decided if the man was shown to be psychotic, mentally deficient under duress, coercion --

Chief Justice Warren E. Burger: How do we know that on this record that they did not give any consideration to his cooperation with the police and his free confession?

Mr. H. Fred Hoefle: I do not see how it could have been relevant to the -- it maybe an assumption on my part how it could be relevant to the existence --

Chief Justice Warren E. Burger: That is why I am probing, is that your assumption, you asserted so I am wondering what relevancy?

Mr. H. Fred Hoefle: Yes sir, I assume and I think it will hold up because --

Justice Byron R. White: You are saying that the court just did not permit it to consider that?

Mr. H. Fred Hoefle: No, it is exclusive --

Justice Byron R. White: And if you assume, they abide their own statute, they did not consider it?

Mr. H. Fred Hoefle: That is correct.

Justice John Paul Stevens: And they also did not say anything about it in their opinion, did they?

Mr. H. Fred Hoefle: They just stated that we have reviewed everything and found that none of the mitigating circumstances provided by the statute have been proved to a preponderance, therefore, the defendant dies and the Trial Court's words, language was almost the same language, perhaps they were consciously just stating what the statute said to make sure that they comply with it.

I think that language indicates how closely they wish to comply with the statute.

These factors certainly were brought forward by us. Further his mental and emotional state and we emphasize that it is at the time of the crime, the mental and emotional state.

Chief Justice Warren E. Burger: Your point then is -- it is purely in attack on the statute itself, not on what the Ohio Supreme Court did under the statute?

Mr. H. Fred Hoefle: Although, the statute itself does not permit them to do anything more and they did not, even if they would have the power too, they did not exercise that power, that is our claim.

Chief Justice Warren E. Burger: Well, that is what I want to do is sort out your argument.

Your argument must be directed only at the deficiency in the statute for failing to allow the court to take that into account, is that not so?

Mr. H. Fred Hoefle: That is so.

I would like to reserve the balance of my time.

Chief Justice Warren E. Burger: Mr. Kirschner.

Argument of Leonard Kirschner

Mr. Leonard Kirschner: Mr. Chief Justice and may it please the Court.

I feel that the basic matter that is currently before this Court in so far as the Bell case is concerned and as I reflect it in my brief, as a center point between this Court's decisions in Furman and this Court's decisions in Woodson.

In Furman we have unbridled discretion, in Woodson we have no discretion.

Now, if we take the pronouncements of this Court in which it is reflected that there should be some discretion and that there the sentence should be tempered and adjusted as to the individual defendant, a party charged with an offense, the Supreme Court or this Court I should say has reflected that the courts should set forth with some specificity, the grounds of the aggravating circumstances and the grounds for the mitigating circumstances.

I do not believe that there is any question that the aggravating circumstances under Ohio law clearly follows the decisions of this Court in which the death penalty is precluded except in certain specific instances.

In other words, you do not get the death penalty in Ohio for every murder.

It is only where it is a calculated preconceived thought of murder, a perpetration of murder and relative to certain specific instances such as the assassination of the President, a person who is incarcerated where there are two or more persons who are supposed to be killed in an overall plot and they are specifically enumerated.

I do not believe that the petitioners in this Court have contested that aspect and I think that there should be no question whatsoever with regard to the first part of the statute at least delineating and eliminating the passing of the death penalty as to or the imposition of the death penalty relative to all murders in the state of Ohio.

The second point is the one that I think is the basic point before this Court and that is the one as to whether or not a state has the authority to specify what mitigating circumstances will or will not be used, so that they can temper the imposition of the sentence with regard to the individual who is standing before them for the purpose of being sentenced.

I think that Ohio takes and follows the pronouncements of this Court as set forth in the group of cases set forth by Gregg and those that followed it, in which the Ohio legislature has set forth a statute whereby they specifically open the statute with the pronouncement regardless of whether one or more of the aggravating circumstances listed in Division A which is the specific types of murder for which the death penalty can be imposed, regardless, that is the first word, that death penalty for aggravated murder is precluded when considering the nature and circumstances of the offense.

The history, character, condition of the offender, one or more of the items are reflected in the mitigating circumstances.

Now, I submit that --

Unknown Speaker: Mr. Kirchner, just so I am -- what did you just read --

Mr. Leonard Kirschner: I read some of the -- it is reflected on page 7 in my brief, it is from Ohio Revise Code, this is the Section relative to the mitigating circumstances.

Unknown Speaker: Which number did the --

Mr. Leonard Kirschner: B, page 7-B, that is the quotation from Ohio Revise Code relative to the mitigating circumstances in which the death penalty --

Unknown Speaker: 2929.04(B).

Mr. Leonard Kirschner: Yes Your Honor.

Now, the -- I find it unusual that in reading the briefs and the response and I apologize for this expression, you are damned if you are doing, you are damned if you do not, but basically it would appear that that is what the proponents and the petitioners, the abolition of death penalty and so far as the Ohio statute is concerned are presenting to this Court.

With one hand they tell us that I am citing unreported decisions which are not the law of the state and with the other hand they are saying that I am citing quotations right out of the cases of Ohio, the Supreme Court of Ohio which -- the Supreme Court should not be saying in effect.

Now, I believe that this Court is bound to give the interpretation of the state statutes as reflected by the highest court of that state.

This Court still has the final determination as to whether that state Court's interpretation of its statute still pass constitutional muster, but I think this Court, based on a long line of decisions is supposed to recognize that the highest court of a state has the right to interpret its statutes and to include that in the totality of the picture as to what the statute means or does not mean.

And without going through each of the items that are set forth in my brief, I believe that the Ohio Supreme Court has clearly reflected what the meaning of the statute is and broadened the condition, so as to determine and make a prerequisite and take into consideration the nature and circumstances of the offense.

Aider and abater, not an aider and abater, was he coerced, not coerced, how does this total thing, the history, his background, his character and the condition of the offender.

This is all part of the total picture upon which the court can interpret and reflect and individualize the penalty and the imposition of the penalty where the mitigating circumstances are not reflected.

Justice John Paul Stevens: Mr. Kirschner, I just wanted to -- why I wanted to be sure I was following you as to your argument, is it not correct that those factors that you read are only relevant to the determination of whether or not one of the three mitigating circumstances are (Inaudible), is not that what the statute --

Mr. Leonard Kirschner: If Your Honor please, it is my interpretation that, that is so, but I also would like to if I may, the -- and as a preview to this in response to Mr. Justice Stewart's question, there is a statute in Ohio that does reflect that unreported decisions are not the law in the State.

However, that is the statute, it is not mandatory and it is not followed even by the Supreme Court of Ohio and I would like to quote if I may and I apologize for not reflecting this in an opinion, but the case of Blackman -- Buehmiller (ph) v. Walker, 95 Ohio State 344 at page 351, 160 North Eastern 797 at page 80, at 8, page 800 in which the Ohio Supreme Court said, ordinarily this court does not regard its unreported cases as judicial authority for the reason that is generally impossible to ascertain the concrete legal propositions involved and decided.

But where a single question was involved in that supulently stated -- trying to read the small print -- and decided, it cannot be said that such unreported cases wholly without influence.

Now, the above rule as to unreported cases has never been modified, nor limited and I might point out that this general opinion of the Ohio Supreme Court was reflected in the opinion of Gustin v. Sun Life Insurance --

Justice Thurgood Marshall: Did I hear you correctly, you said it had not been?

Mr. Leonard Kirschner: It is – that rule has never been modified.

Now, this referred to the --

Justice Thurgood Marshall: No, I thought you said they were not following it.

Mr. Leonard Kirschner: No Your Honor, I am saying that unreported cases, although they may not require that they be mandatorily followed, they do have a substantial influence on the law and interpretation of the law.

Justice Thurgood Marshall: You want us to ignore the statute?

Mr. Leonard Kirschner: Well, I am saying the Ohio --

Justice Thurgood Marshall: Do you want us to ignore the statute?

Mr. Leonard Kirschner: Yes Your Honor.

Justice Thurgood Marshall: (Voice Overlap)

Mr. Leonard Kirschner: Because the Ohio Supreme Court ignores it.

Justice Thurgood Marshall: Oh! I am not saying that they ignored it there, they said they had never been amended, what is your aim?

Mr. Leonard Kirschner: No, they said that the Ohio Supreme Court has never modified this position and pronouncement, in other words, I am speaking, the Sixth Circuit Court of Appeals in the case of Gustin v. Sun Life Insurance --

Justice Thurgood Marshall: Well, do we have to follow the Sixth Circuit Court of Appeals' interpretation of Ohio laws, do while we are at it?

Mr. Leonard Kirschner: No Your Honor, what I am trying to present to this Court is the fact that Ohio has a statute which says unreported decisions are not binding on the courts.

Now, in interpreting that statute, the Ohio Supreme Court has said that although it is not binding on the courts, it does have an influence in interpretation of the law as pronounced by a court, for other courts to follow.

And I submit that in Ohio, there are numerous occasions in which the Ohio Supreme Court, whether has been a contrary opinion coming up from two different districts, unreported cases are accepted and this rule is followed more and it is preached than its actual quotations by the Ohio Supreme Court.

Justice Potter Stewart: We would agree would we not Mr. Kirschner that a decision or opinion of an Ohio Court of Appeals, whether or not reported, even though fully reported, is certainly not binding on the Supreme Court of Ohio?

Mr. Leonard Kirschner: These opinion of a Court of Appeals of Ohio is definitely not binding on the Supreme Court of Ohio and I would go one step further, it is not binding on any other as you mentioned previously, Ohio is divided up into districts, but it does have in so far as other appellate courts, a great amount of influence and it does have some influence in presenting an issue never previously decided by the Supreme Court of Ohio for which that court has not modified by some other decisions.

So that it does have influence, although it may not be binding on the court.

Justice Potter Stewart: Ohio's judicial system in short and I am now advised that has not been changed --

Mr. Leonard Kirschner: No sir.

Justice Potter Stewart: Almost an exact analog of the federal judicial system?

Mr. Leonard Kirschner: Yes sir.

Now, in the case of Win v. State which is subsequently appears in the Ohio Supreme Court, that Court of Appeals and as I say, it is not binding on the court, but I would like to just give this interpretation if I may.

Referring to the mitigating circumstances involved, the court held, and this is Judge McCormack of that district who counsel in their brief reflected said that Ohio statute is mandatory, in considering in this mitigating circumstance relative to the offender's psychosis or mental deficiency, they said “In considering this mitigating this circumstances, the Court is constructed to consider the nature and circumstances of the offense and the history, character and condition of the offender.

This permits if not instructs the Court to consider such factors as prior history of criminal activity, the amount of participation by the defendant when accomplished by another person, the youth of the defendant at the time of the crime as well as the mental and physical condition of the defendant.”

Now, I say that the Ohio Courts are giving a broad range of interpretation to the Statute and they are following the Supreme Court pronouncement.

Unknown Speaker: Excuse me for interrupting, but may I ask you a question along the line of your argument.

The State against Bailus, in the opinion of the Supreme Court of Ohio undertook to define the mental deficiency.

Has there been anymore recent definition of mental deficiency by your Court or is that the definition that you consider binding?

Mr. Leonard Kirschner: I would say that the interpretation, reading all of the cases and putting them all together means mental deficiency reflects the connotation of the entire background, not arising to that criteria or weight, there would be a defense to the crime itself.

Unknown Speaker: Is there a more recent case than Bailus that specifically undertakes to define mental deficiency, I have in mind --

Mr. Leonard Kirschner: At the moment I will be quite honest with Your Honor I do not know.

I think there is but I just cannot specifically quote the expanded version of that definition.

Unknown Speaker: In Bailus as I read it, mental deficiency is defined to me, a normal or subnormal, whether it is normal or subnormal intelligence and I ask you now, does Ohio have laws that limit of that age at which the minors may marry?

Mr. Leonard Kirschner: Yes, Your Honor.

Unknown Speaker: What age is that?

Mr. Leonard Kirschner: I believe the -- it is 18 now, except that they get it permission of the juvenile Court or the Probate Court.

I think it is either 14 or 16, but I do not know, the 18 is the age of consent in Ohio though --

Unknown Speaker: Does Ohio have a law that invalidates contracts made by minors and if so at what age?

Mr. Leonard Kirschner: Ohio has a law that invalidates certain contractual – certain ones, contractual relationships of minors.

However, Ohio has several laws that require that minors be responsible for some of their tortuous actions, severely.

Unknown Speaker: These laws as I have been talking about based on intelligence of the minor or on the assumption that the experience of mankind suggest that up till certain ages there may be a lack of maturity, a lack of judgment or some other deficiency that may affect the conduct of the minor?

Mr. Leonard Kirschner: I would say that this is a legislative determination in which they have set the cut off date at age 18.

They could just as easily have, based on their legislative determinations, set it at 17 or age 21 which was up till a few years ago.

So that I would say that this a determination by the legislature which absent a basis of discrimination in choosing that age is for the legislature to determine and that was the age that they picked is 18.

Unknown Speaker: Granted there is certain amount of arbitrary in selecting these ages, the point I am making -- asking you of whether or not they relate to the IQ of the individual at the time, their IQ questioned?

Mr. Leonard Kirschner: I would say this here that the legislature has picked an age considering many factors.

There are many people above that capability who are substantially below that age group.

There are many people who are below it who are age wise above that age group that the legislature has picked.

I am trying to response your answer that I do not think that there is a definite fixed thing by the legislature saying age 18.

I do not think that means if you are under 18 you do not have the sense to do anything and you are not bound for anything you do and if you are over 18 you got all the sense that you need and we are not going to consider any men of deficiencies.

I think each individual case must be taken in its entirety and I think that the Ohio Statute reflects that it is been taken in its entirety and the Supreme Court in this case so reflected in considering age as to whether the age affects the person’s mental ability, mental psychosis, mental deficiency, some people it does, some people it does not.

Unknown Speaker: But no consideration of maturity or judgment or susceptibility to the influence of others of -- that is what your court had said in affect as I read the Bailus which ends up defining mental deficiency as sub-normal intelligence.

You can be of 15 years old and have an IQ of 140, but your judgment might not be very mature?

Mr. Leonard Kirschner: I do not think that the Ohio Courts have gone to that extent.

I think that they have reflected this in this Bell case for one that is saying that you take the nature and circumstances of the offense, the character, history or the defendant himself in going into that total picture and I do not think that the Courts in Ohio are restricting the matter to the fine legal definitions because if it was restricted to the fine legal definitions and under those circumstances you would have to defense to the crime itself and Ohio specifically held that they are not going to hold the person to the same weight or totality of the evidence as they would in a defense to the basic crime itself and this is been pronounced several times in their opinion and --

Justice Potter Stewart: That is the defense of insanity?

Mr. Leonard Kirschner: Defense of insanity, defense of duress, coercion, duress, coercion was in the States v. Woods, I believe in which they specifically held that we are not going to hold you to the same degree of proof and weight of the evidence in the proof of the mitigating factors, as we would as a defense to the basic crime itself.

Justice Potter Stewart: Well, that is self evident, is it not, if there were a case in which there could be no conviction because either a duress or insanity of the defendants or the defendant or duress upon the defendant then there would be no death sentence for this Statute to apply to or for the Ohio Supreme Court to consider?

Mr. Leonard Kirschner: That is correct, except that it is one of the arguments that counsel for the petitioners have raised in their brief by saying that there is no basic difference between the basic defense itself and the mitigating factors.

And as I said at the outset, you are damned if you are doing, you are damned if you do not and I submit further proof of that and I quote from the brief of the respondent in this matter at page 11.

There was recently another aggravated murder case in Hamilton County in which a person was charged with the crime.

He was an accomplice.

He was not the basic perpetrator.

They were claiming duress.

They were claiming a youth.

They were claiming undue influence.

Counsel I am certain is better able to tell you everything that they were claiming because it so happens the same counsel that is sitting before this Court today was counsel in that case.

Justice Potter Stewart: That is the Irving case?

Mr. Leonard Kirschner: That is the Erwin case, Your Honor and in the Irving case which was a common police court which is not shall we say binding on any other court than that court, but it is of some advisory.

The common police court went beyond what we believe the statute reflects and they held that all of these matters are taken into consideration referring to accomplice, referring to age, referring to duress, referring to coercion and everything else and I quote “all of these matters are taken into consideration and once you take all of these into consideration the death penalty is precluded if these three things are there.

But still the trial court has discretion as to whether or not the death penalty should be pronounced and I think that is what the legislature intended when they used the word regardless as the prelude to Section B of the death penalty sentence, and he went on to make his determination based one on the fact that this was an accomplice and the fact the person might have influenced his age, his co-operation with the police etcetera which are not specifically reflected in the three items, but are in the totality of nature and consideration.”

And then we have this statement with a judge who is doing exactly what the defense counsel was asking or petitioners are asking this Court to do and I quote here a statement in page 11 in of his brief.

The Irving decision to the extent that it represents the law of Ohio incurably infects Ohio Capital procedure with the arbitrary and capricious discretion to impose the death penalty contained in Furman v. Georgia and I think that is exactly what we are trying to say here.

Absence some specific considerations as to what an appellate court can determine, was there sufficient evidence or non-sufficiency of the evidence to prove a specific mitigating factor.

How can an appellate court make a determination if there are no guidelines upon which the appellate court can apply the evidence to the guidelines set by the statute.

Now, counsel is asking this Court to say let us have a broad open field, let us take everything under consideration for the purposes of mitigation and yet in the same time he is coming before this Court in his own brief and saying such a procedure is unconstitutional.

Chief Justice Warren E. Burger: You do not show the date of Irving case?

Mr. Leonard Kirschner: The Irving case was decided just about two weeks ago, 12-21 with the Court’s permission if you are desirous I can furnish you with a copy of the opinion.

Justice William H. Rehnquist: Is that a decision of the Court of (Inaudible)?

Mr. Leonard Kirschner: Yes, it is strictly the Trial Court Your Honor.

Justice Potter Stewart: As I understand Mr. -- you think it is wrong?

Mr. Leonard Kirschner: I think it is wrong, yes Your Honor and I submit further that --

Justice Thurgood Marshall: You do not think we should be influenced by (Inaudible)?

Mr. Leonard Kirschner: Well, I am saying this here. Counsel for the petitioner is asking this court with one hand to say Ohio cannot specify the things, you got to put a lot of more things in there and with the other hand he is saying when a judge does this and takes into consideration the nature and circumstances that of the offense, the fact of the heights of the two parties involved, the character of the defendant, the history of the defendant, the age of the defendant, when a judge does that he is wrong, because it is unconstitutional because it is too broad, we are back to Furman v. Georgia.

Justice John Paul Stevens: Mr. Kirschner, first of all in that case the judge did find statutory mitigating circumstances.

Mr. Leonard Kirschner: Secondarily and I --

Justice John Paul Stevens: Well, if he founded that was the answer to the whole loss?

Mr. Leonard Kirschner: He says primarily I find for the --

Justice John Paul Stevens: But he did find a statutory mitigation --

Mr. Leonard Kirschner: Yes, Your Honor.

Justice John Paul Stevens: So he was required by your statute not to impose its essence, if he made that finding?

Mr. Leonard Kirschner: He did find that, but he said that was secondarily to the other aspects of the nature and circumstances.

Justice John Paul Stevens: Is that your submission that if the Ohio statute permitted the judge to give consideration independently of the three statutory mitigating circumstances, to give independent consideration to the youth of the offender, the fact that he did not pull the trigger himself and the fact that he co-operated with the police, so just add those three, would the statute then be unconstitutional in your --

Mr. Leonard Kirschner: No sir.

Justice John Paul Stevens: But then you are really not in this terrible dilemma that you cannot figure our the answer?

Mr. Leonard Kirschner: What I am saying is this.

The counsel says where a judge uses this --

Justice John Paul Stevens: Well maybe counsel is inconsistent, but we are not going to necessarily do what counsel says?

Mr. Leonard Kirschner: Well, I think that this goes beyond counsel that I think that we are at a point, I think this Court reflected that they are not going to say specifically what has to be and does not have to be in a mitigating circumstances to individualize the penalty.

Now, this Court may say that youth in and off itself is a bar to any death penalty and if it does, Ohio does not pass, I will tell you that now.

But if the Court takes that to be taken into consideration then I think it does pass constitutional muster and the Supreme Court of Ohio has reflected that it is taken into consideration.

Justice John Paul Stevens: Taken into consideration only as to the whether or not there was duress, not legal duress, but of coercion, undue influence on the one hand or a mental deficiency on the other or for those two purposes, is that what you have in --

Mr. Leonard Kirschner: The mental deficiency in my opinion is interpreting and reading all of the cases and their interpretation of the language goes beyond the mental deficiency as specifically defined.

The totality of all of the cases and I think there are approximately 28 or 29 in Ohio at the present time, goes well beyond the limited confines that you are a moron or an imbecile or something of that nature.

I think -- and the Supreme Court has pronounced this.

They have held that where you take the person’s history, his background his nature, circumstances, you take the total picture and that person may be have a high IQ and conceivably he would have a mental deficiency or quirk which a trial court could based on the evidence presented to it find a mitigating circumstance and in duress, in a decision which I have cited in my brief at page 38, which was even before any matters concerning the death penalty in the case of Dominic (ph) v. Robinson.

I cited on page 38, in determining whether a course of conduct results in duress, the question is not what effects such conduct would have upon the ordinary man, but rather the effect upon the particular person towards whom such conduct is directed and in determining such a effect, the age, sex, health, mental condition of the person effect it, the relationship of the parties and all the surrounding circumstances may be considered.

Now, if we take that definition and we hold that is the definition as to the legal standards and we take the Ohio’s interpretation that we can go beyond that.

When we have a situation of Willie Bell who says that he was so co-operative, but forgot to tell the police about the fact that the week before he was shot off the shotgun along with Samuel Hall.

If we take the case of Willie Bell who forgot to specifically set forth in his brief.

Now, I submit that these are not matters reflected in the record and the reason was a witness disappeared, but if we take the fact that Willy Bell says that he want to date in Ohio long after any drug effect which he might have had, was still working on it.

And he went there and he participated in the crime of the putting a second person into the trunk of a car, assisted in that preparation in putting a second person and a response to that I believe Mr. Chief Justice's question to counsel, yes he could have left counsel reply that he could only have left the Samuel Hall at the time prior to the actual murder itself.

But if I recall the facts as reflected in the record, Willie Bell was riding one car, Samuel Hall was riding the other as they were leaving and Willie Bell only took off on his own after his observed a police car, stopped.

Samuel Hall's car in which he had the second victim in the trunk.

So that there was a period of time when Willie Bell could have cut bait and left Samuel Hall and was not under the influence or duress.

And when we take Willie Bell’s reflection, he had admired Samuel Hall's style.

Now, is that duress, I do not think so and we take all these other things.

Chief Justice Warren E. Burger: We resume their it is 1 o' clock.

I believe your time has expired in any event counsel.[Recess]

Mr. Hoefle you have about 4 minutes left.

Rebuttal of H. Fred Hoefle

Mr. H. Fred Hoefle: Yes Your Honor, thank you.

Mr. Chief Justice may it please the Court.

In Mr. Kirschner's argument, Justice Powell asked the question regarding the definition of mental deficiency and whether or not that had been changed.

On page 23 and 24 of our brief we cite all of the Ohio Supreme Court cases to date involving allegations of mental deficiency.

The Bailus case explicitly limited mental deficiency to retardation or low intelligence and excluded emotional cultural or behavior abnormality, 23 and 24.

The Harris case explicitly holds that a 17 year old associate help is not considered psychotic or mentally deficient under the statute.

The Royster case refused to equate IQ with mental deficiency and held that there was no mental deficiency in the case of a defendant whose IQ is 75 in 1962, 1961, in 1966 and 1954 and 1968.

The Edward’s case explicitly holds that educational deficiency does not equal a mental deficiency and finally in our case the court found no mental deficiency even though the defendant was 16, at that time considered emotionally immature not only as an adult by adult standards, but on a peer group standard.

He was less mature then the average 16 year old.

He was on drugs on a daily basis for three years up until the day he was arrested.

That his IQ tested in 1972 at 81.

Justice Byron R. White: You think the Ohio courts are warranted under the statue in taking age in consideration in determining person’s mentality?

Mr. H. Fred Hoefle: Not under the definition of mental deficiency as they have given here Your Honor because --

Justice Byron R. White: If someone wants to argue that because the person is young, it is more likely that he is not mentally confident, is that kind of an argument that is out of bounds under the statute?

Mr. H. Fred Hoefle: We argued here that because he was 16 he was per se mentally deficient under the statue and they said no, they said age can be considered.

Justice Byron R. White: You agree with that age may be considered?

Mr. H. Fred Hoefle: No I do not agree with that because I do not think age --

Justice Byron R. White: But the court said it could be considered?

Unknown Speaker: What the court link to was senility, indicating something in addition.

Rebuttal of Leonard Kirschner

Mr. Leonard Kirschner: Over age or underage.

Unknown Speaker: Well, senility means more than old age.

It means imperative of your mental or emotional because of old age?

Rebuttal of H. Fred Hoefle

Mr. H. Fred Hoefle: I see and that might correspondingly relate to IQ, but our point is that when we discuss youth that we should not execute children, we are taking about -- in mental deficiency, we are talking about two different things, you can be a genius --

Justice Byron R. White: I understand that.

My question although is whether the evidence is relevant to determination of mentality?

Mr. H. Fred Hoefle: I do not think that evidence itself.

Justice Byron R. White: The court said they can consider it?

Mr. H. Fred Hoefle: So they did, but I do not see how you could meaningfully give a consideration in determining whether the man – the defendant --

Justice Byron R. White: Well, in Ohio law it is not executable evidence, I mean, it is a kind of evidence they may consider?

Mr. H. Fred Hoefle: Well, under the statute you can put in anything you want.

The only thing is that none of it has any meaning.

Justice Byron R. White: Except the court said that they would consider it?

Mr. H. Fred Hoefle: Yes they did say that.

In closing I would like to again quote the statute very briefly, is that the 2929.04(B) where regardless of whether one or more of the aggravating circumstances listed, just specify and prove beyond the reasonable doubt.

The death penalty is precluded when, considering the nature and the circumstances of the offense and history, character and condition of the offender, one or more of the following is established by preponderance of the evidence and than at least the three narrow mitigating factors.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.