LOCKETT v. OHIO

Transcript: 

Argument of Anthony G. Amsterdam

Chief Justice Warren E. Burger: We will hear arguments next in 6997 Lockett v. Ohio.

Mr. Amsterdam you may proceed whenever you are ready.

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

The case of Sandra Lockett v. Ohio, raises many of the same issues relating to the constitutionality of the Ohio death penalty statutes that were involved in the Bell case just argued.

However, in the Lockett case there are also serious federal constitutional questions in regard to the procedures through which Ms Lockett’s conviction of the crime of aggravated murder was obtained, and because the Court will not and need not reach the question of penalty, unless it affirms her conviction on the merits, I would like to devote some portion of my argument time to the issue of whether or not a federal constitutional was violated in this Lockett’s conviction.

By improper prosecutory or comment on our failure to take the witness stand in her defense.

In addressing this issue, let me if I May it please the court, just describe very briefly the background of this trial and the respective theories of the parties at the trial.

Ms Lockett stands convicted and condemned of the crime of aggravated murder for a killing of Sidney Cohen, a pawnshop proprietor in the course of a pawnshop robbery.

At the time that Mr. Cohen was killed, the gun was in the hands of Al Parker, the chief say prosecution witness in this case.

The prosecutions theory is that, Parker, petitioner’s brother James Lockett, one at Nathan Dew and the petitioner, had conspired and planned together to rob Sid's Market Loan Company that they had all gone there for that purpose, the petitioner had remained outside in the car, that the three man had gone in, committed the robbery in the course of which according to Parker’s own testimony, Mr. Cohen snatched at the gun and it went off accidentally and although the killing was totally outside the plan of the robbery, he was killed.

Now, important thing to recognize --

Chief Justice Warren E. Burger: You are saying totally outside of the plan, and I am not sure what do you mean by that -- stands of death and they had bullets in the gun, did they not?

Mr. Amsterdam: I refer Your Honor simply to Mr. Parker’s own testimony.

If Your Honor will look at page 62, the question was asked now, Al, the purpose to go to the pawnshop was to do what? What was the plan when you went to the pawnshop to do what?

Answer to rob.

It had not been discussed the killing, no sir, okay that was not part of the plan?

No sir.

That is what I mean Your Honor.

Chief Justice Warren E. Burger: And of course, I suppose on that theory the perpetrators would not need any bullets in the gun, if they had no intention or whatever making using of, would they?

Would an empty pistol not have done just as well?

Mr. Amsterdam: Well, Your Honor the --

Chief Justice Warren E. Burger: They loaded it there I had recall --

Mr. Amsterdam: There was a plan to, they did not enter the pawnshop with gun even if with bullets and they certainly did arm a gun which was in there.

There is no doubt to the plan included using a loaded weapon, but the plan did not include killing and it is not one of these execution style, kill a witness type of things according to the prosecutor’s own testimony.

For purposes of the self-incrimination issue however, what is important is this, that the prosecution theory as against petitioner, is entirely if she was a party to this conspiracy to go in and rob.

The defense theory was not that the petitioner did not know her brother and Dew and Parker whether she was somewhere else.

The defense admitted that she went with him to the pawnshop and sat outside, but the defendant’s contention was that there was no plan to rob at all and that she thought they were going into pawn a ring.

No, all of the evidence which connects the petitioner with a specific plan to rob the pawnshop is Parker’s testimony, if this Court will examine the opinion of the Ohio Supreme Court, it will find that it is whole recitation of the facts of the case consists of recitation of Parker’s testimony, with a statement that it was corroborated by the testimony of several other minor witnesses.

What is significant however is that the testimony of those witnesses while corroborating parts of Parker’s and well consistent with a theory of petitioner’s guilt, was also a perfectly consistent with a theory of petitioner’s innocence including the very theory of petitioner’s innocence as spoused by the petitioner at trial, namely that she was just along for the rob.

Now, against this background, the following things happened in the trial - petitioner did not testify, that was not a happy incident which a lawyer indicated she would take the stand, but she declined and did not, she called the only two members of the conspiracy, Dew and her brother, whom the prosecution did not present because Parker was the chief prosecution witness and they both took the faith in front of the juror, leaving all of the, conspirator's out of a count as possible witnesses and then in the course of closing argument in the case, the prosecutor made the argument of which we complain.

In a theme that recurs constantly throughout the argument and staccato repetition underlining for emphasis about theme, the prosecutor repeated again and again, seven times in all, that the prosecution’s evidence was uncontradicted and unrefuted and the prosecutor closed uncontradicted and unrefuted evidence, nothing from the defense, no evidence from the defense.

Now, our submission is simply that in the context of this case, that would be taken by the jury to direct their attention to the defendants’ failure to take a stand in her own behalf and is therefore a forbidden comment under privilege against self-incrimination and vitiates her conviction under Griffin v. California.

To argue this point, I think I need only make a factual analysis, if I may of Parker’s testimony because I think that if one understands what Parker’s testimony was about and how this case appeared to the jury, the Fifth Amendment issue can only be resolved one way. If you look at Parker’s testimony, you will find that there are a total of 15 episodes which in anyway could conceivably connect petitioner to the plot to rob the store, and by 15 episodes I do not want if it gives the mis-impression, there is a lot of evidence.

First of all, all this is Parker’s testimony.

Secondly, many of these episodes are very minor details quite consistent with innocence or guilt, they are just part of the story.

But when I say episodes, I mean scenes, if you conceive of it as though we were projecting a movie or making a movie of these events.

There would be 16 scenes and that is important because the question is who is available to testify each of these scenes.

Our submission is that the only relevant scenes, the only witnesses are Parke, the defendant, the other co-defendants and therefore when the prosecutor says our evidence is uncontradicted, the jury says who could contradict it?

Answer is only the defendant.

Justice Thurgood Marshall: But what do you do when you have as counsel, uncontradicted evidence?

You mean you cannot tell the jury is uncontradicted?

Mr. Amsterdam: I mean Mr. Justice Marshall --

Justice Thurgood Marshall: Let us just state one point of course you can always say it is uncontradicted?

Mr. Amsterdam: If you say on one occasion that the evidence is uncontradicted that would be a very different thing and if you say it seven times uncontradicted and unrefuted.

It also makes a difference whether petitioner is the only person who can contradict or refute evidence.

We are not arguing that the prosecutor can never say evidence is uncontradicted.

What we are arguing is the prosecutor’s description --

Justice Thurgood Marshall: If the defendant does not testify and puts on no defense, then the prosecutor cannot say that his testimony that he has produced is uncontradicted?

Mr. Amsterdam: I would not say that Your Honor, I would say that prosecutor may not amass such a repeated --

Justice Thurgood Marshall: Can he say it three or four times?

Mr. Amsterdam: Depends on the nature of the case.

Justice Thurgood Marshall: I just do not see how you can do that?

Mr. Amsterdam: Well, Your Honor --

Justice Thurgood Marshall: I do not see how you can muzzle the prosecutor by your trial tactics?

Mr. Amsterdam: Mr. Justice Marshall, it is one thing to affirmatively argue the credibility of prosecution witness.

It is --

Justice Thurgood Marshall: I know many cases I have tried, if you were to let me say, uncontradicted I would not have argued because I was so happy to have them contradicted.

You cannot say you muzzle the prosecutor that way, and as defense counsel, I am for --

Mr. Amsterdam: Well, if the prosecutor does make an argument which invites the jury to say to itself.

The defendant did not take the stand, if she had taken the stand then if she had been innocent, she would have taken the stand but she did not take the stand so she must be guilty.

Then it seems to me is what the privilege is all about.

Now, the prosecutor’s argument --

Unknown Speaker: Do you think the jury, jurors and intelligent jurors do not ask that question of themselves even if the prosecutor had never mentioned a word about it?

Mr. Amsterdam: That is certainly a risk which is involved in the system, but it is the square of holding in Griffin v. California that that risk cannot be increased in anyway by comment on the part of any of the parties in the proceeding.

The prosecutor cannot invite the jury to draw that conclusion even though the jury might do it itself, not from the Court and the prosecutor’s argument which hammers on to the jury again and again so that the jury must necessarily be thinking to itself about what we are being asked to convict on is a fact that the defendant did not take the stand and answer the evidence of the prosecution.

There is nothing more or less than a comment on it.

Justice Thurgood Marshall: And that the defendant did not put on any testimony?

Mr. Amsterdam: Not in the context of this case.

I cannot mean that in the context of this case because in the context of this case, the only testimony the defendant could have presented was the defendant’s own testimony.

Unknown Speaker: Mr. Amsterdam --

Mr. Amsterdam: I would agree that the prosecutor can say, can direct the jury’s attention to the fact that there were other available witnesses when the defendant did go, but the very purpose of my analysis of Parker’s testimony was to show that in fact there were no other witnesses in this case.

Unknown Speaker: I trust Mr. Amsterdam, you are not going to consume all of your time on this question.

There are other questions in this case and I think you may fairly assume that some of those have ordered a grant certiorari in this case where I understood there was no other questions?

Mr. Amsterdam: I think that it may make sense for me to pass to the death penalty questions at this point.

Unknown Speaker: You can then answer this one yes or no though was there an instruction in this case, any of instruction from the Court as to the significance of the defendant’s testimony?

Mr. Amsterdam: Yes, there was.

There was a one paragraph --

Unknown Speaker: That says no significance should be attached to it?

Mr. Amsterdam: That is correct.

Unknown Speaker: Yes, thank you.

Mr. Amsterdam: That is correct.

Well, then if may I move to the death penalty, if you suggest?

Unknown Speaker: This first question is covered in your brief, it is covered in your brief is it not; the first question yes?

Mr. Amsterdam: The only thing I wanted to point out Justice Stewart because it was not dealt with in our brief since it was raised on the respondent' brief, was a notion that there are other witnesses who could have testified. Going to Justice Marshall’s question, the answer is on the facts of this case, there are no other witnesses who could testify.

Any relevant events that split the difference between the prosecution and defense theory.

I may move them to death penalty questions.

I simply want to speak to two of the several constitutional attacks on Ohio’s death penalty because I think it is important to point out their relationship.

One is the one of which the Court heard argument this morning that the Ohio death penalty statute is too narrow, too much circumscribes, consideration of mitigating circumstances to meet the command of the Woodson and Roberts cases that individualized consideration be given to circumstances of defense and offender.

The second argument which is raised in both Bell and Lockett, is the argument that the application of the death penalty to a person who was neither a participant in the killing nor an intentional perpetrator of any act that was directed to a killing, for instance, proportionality principle in Coker and earlier cases because Justice Marshall has alleged, Sandra Lockett may be a felon, but not murdered, not a deliberate taker of human life.

Now, I want to point out though that there is a relationship between those two arguments because in combination they produce still a third constitutional intention which is the narrowest conceivable ground on which these cases could be decided.

In as mush as the very circumstance which we contend precludes the death penalty totally.

That is the fact that Sandra Lockett has been condemned for a crime which she did not do, did not attempt, did not intend and it is to kill.

In as much as that factor of the case, it is one of the very factors its consideration of the Ohio statute precludes.

This Court could decide these cases simply on the ground that whether or not it would be constitutional for a state to impose the death penalty in a case like this.

It is unconstitutional for the state to do so while forbidding the sentence or even to consider the mitigating circumstance, that the defendant was not the perpetrator of the crime and neither intended nor did anything in furtherance of the killing itself as distinguished in the underlying robbery.

Now, that argument and the arguments about the narrowness of the Ohio statute in preclusion of consideration of mitigating circumstances.

Chief Justice Warren E. Burger: Are you asking us to abolish the concept of felony murder, felony homicide?

Mr. Amsterdam: Oh, Chief Justice Burger.

There is no attack here at all on felony murder concept, as far as conviction goes that is perfectly appropriate, but if Coker has any meaning, one of its meanings must be that if the defendant’s conviction rests only on the felony that the death sentence which is being imposed not for the murder, but only for the felony is disproportionate.

Our argument goes only to the death penalty nothing to do with the constitutionality of felony murder as a basic conviction.

That is perfectly acceptable, but I think it is important to recognize on the facts of this case however is the fact that that is exactly what petitioner is.

She is at most an armed robber.

She has the mental state, the culpability of any participant in any armed robbery and no more than that.

The prosecution in its brief suggests that the jury must have found that the defendant intended to kill Sidney Cohen because part of the element of aggravated murder is purposely killing.

I want to dispel that theory right now.

It is true that the Court charged to the jury that, but it also charge to the jury and this was a key to this whole case.

At pages 118 and 119 of the appendix, a person engaged in a common design with others to rsob by force and violence on individual or individuals of their property is presumed to acquiesce and whatever may reasonably be necessary to accomplish the object.

If under the circumstances it may reasonably be expected that the victim’s life would be in danger by the manner and means of performing a criminal act, each one engaged in a common design is bound by the consequences naturally or probably arising in its furtherance.

If the conspired robbery in a manner of its accomplishment would be reasonably likely to produce that, each plotter is equally guilty with the principle offender as an aider and abettor in a homicide.

An intent to kill by an aider and abettor may be found on to exist beyond the reasonable doubt under such circumstances.

Now, later on that same page the Court defines, intent as the same thing as purpose and elsewhere in this charge, it talks about inferences as a very different thing for presumption, so what the jury was charged in this case, was that it should find the defendant guilty of purposely killing Sydney Cohen if she participated in an armed robbery attempt.

The Court of Appeals and the Supreme Court affirmed her convictions on exactly that theory, indeed the very issue which divided the Ohio Supreme Court here four to three would never reason on the other two.

So what we are dealing with is we are dealing with a case in which the defendant has been sentenced to die for nothing more than participation in an armed robbery which at someone else’s hands resulted in death, no.

Unknown Speaker: But the same thing goes for James Lockett and Dew?

Mr. Amsterdam: Their involvement could on a factual record be different than this one have been shown to be more substantial.

Unknown Speaker: But how about on this record, how about James Lockett,for example?

Mr. Amsterdam: Mr. Justice, well you see the problem with analysis like that as we are talking about a record in which no lawyer was addressing the question of Lockett’s culpability and so I just do not know the answer what --

Unknown Speaker: So you do not say that only the triggerman may be punished?

Mr. Amsterdam: Oh, no I do not --

Unknown Speaker: Who else may be anybody who had the intent that there be a death?

Mr. Amsterdam: I think that this Court has to look very carefully at what was involved in Coker and what is the rationale for which the Court has sustained capital punishment and all.

The question of whose finger was on the trigger is not important, but the question whether or not the defendant was a participant in the scheme aimed directly and deliberately at human life is very important and this defendant was not a pointer or a plot in a scheme to kill.

Now, whether James Lockett was or not Your Honor I do not know, this --

Unknown Speaker: Well, arguably under your rule Parker perhaps would not be the subject to the death penalty either?

Mr. Amsterdam: Someone other than Parker on this record might be.

Unknown Speaker: But how about Parker?

Mr. Amsterdam: Parker, well --

Unknown Speaker: If that is accidentally and that the plan did not include any intent to cause death?

Mr. Amsterdam: May I distinguish as I did Your Honor two separate issues - the first issue is whether or not death penalty may be imposed on these people at all as a matter of constitutional law and the other is to whether Ohio law may forbid consideration even of these elements.

Now, I will go this far with no hesitation that it is impermissible constitutionally for Ohio to forbid consideration of the fact that Parker’s shooting was accidental, that I would say categorically.

That is to say even if the death penalty can be imposed on Parker, for Ohio to say as it has that whether he shot and deliberately and intentionally killed Sydney Cohen or whether they gone or went off by accident is not relevant, may not even be considered in sentencing that violates the Eighth Amendment.

Now, whether Ohio could say that an unintended killing by someone who is their taking steps toward killing with a knowledge that is not like, that poses a difficult question and this case does not pose.

That is not Sandra Lockett, that might be James Lockett, it might be Dew, it probably is Parker on this record, but it certainly is not Sandra because Sandra Lockett at most was aware of the fact the people were going in the store with a loaded gun.

No indication of any plan as to how it would be used in answer to the Chief Justice’s question simply that bullets would be put in gun.

I take it that the idea of putting bullets in the gun does not necessarily mean to fire because since the gun was being taken from the pawnshop proprietor since he would know that empty it posed no threat.

They would have to load it in order to pose a credible threat for a robbery, so there is no supposition whatever that anybody intended to shoot that gun and Mr. Justice White our submission does not tell at all on whose finger was on the trigger as to whether to use the language of the Gregg case itself.

The defendant has been sentenced to death for a deliberate killing which this defendant has not.

If a defendant is part of a scheme in which somebody else shoots that just as deliberate as if the defendant shoots himself or herself.

I would like to leave some time for rebuttal and although there are other aspects of the case, I think that this has sufficiently presented the inner relationship that the issues, and strictly the narrowest ground of decision, so that it provides a stopping place, unless the court has further question.

Chief Justice Warren E. Burger: Very well Mr. Amsterdam.

Mr. Layman.

Argument of Carl M. Layman Iii

Mr. Layman: Mr. Chief Justice and may it please the Court.

I would like to turn the record to the death penalty issue first and if there is time remaining, I will address the prosecutor’s comment issue.

I would like to point out to the Court that this was not an accidental killing, that would be contrary to what the jury found and that the evidence in the appendix supports Al Parker’s testimony and in fact there is a plan to commit a robbery and which it is reasonably foreseeable that deadly force will be used.

Chief Justice Warren E. Burger: What verdict should the jury have returned if they were persuaded that it was unintended, accidental killing?

Mr. Layman: It was accidental would have to be not guilty.

If it was unintentional -- there is a difference, in Ohio but accidental would not be guilty.

If it was unintentional in a sense that they did not have what we now determined or call purposeful, but before it was an intentional act it would then involuntary manslaughter under statute.

Justice Thurgood Marshall: Can you have accidental homicide in a felony, in a commission of a felony?

Mr. Layman: No, that is the point I am trying to make that it was not an accident --

Justice Thurgood Marshall: And you said it could be an accidental, did not?

I thought she was saying something that really did not mean --

Mr. Layman: No, I did not.

Unknown Speaker: At the common law there could be felony murder that was purely accidental.

In other words, cat burglar climbing up slate roof could dislodge one of the slates and strike, walk in a pedestrian on the head and kill him and that would be a felony murder of common law?

Rebuttal of Anthony G. Amsterdam

Mr. Amsterdam: I do not believe under our state of law that is not the law.

Chief Justice Warren E. Burger: But anyway the jury could have returned to verdict of less than the degree they did, had they believed the testimony?

Mr. Amsterdam: Absolutely.

Chief Justice Warren E. Burger: Thanks.

Rebuttal of Carl M. Layman Iii

Mr. Layman: And the testimony was not just Al Parker’s, Joanne Baxter testified concerning the planning and the use of a weapon by this group on two different occasions and the petitioner in this case dreamed up the idea of robbery.

She thought of and it is in the appendix that we could pick up out grocery store named Easters, but you got to get the duties big and he has got 45 so it is in her mind, it is in the conspirator’s mind that the force will be used.

Now, they did not sit down and plan I am going to go and kill this guy and then rob it; no, but the idea of aiding and abetting, the idea of felony murder is established in Ohio.

Unknown Speaker: Well, let me ask you a question if I may Mr. Layman I understood you to say in response to Justice Stewart’s question I believe it was a moment ago that Ohio does not follow the ordinary concept of felony murder at least what I consider to be the ordinary concept of felony murder and that is that if one goes into the convenient store with a gun intending to rob the proprietor and the gun goes off accidentally in a course of commission of the robbery, he is guilty of first degree murder and what I understood to be classical felony murder law?

Mr. Layman: Ohio presumes the intent or infers the intent that you would say as lacking in your example.

In other words, if you can show the common law scheme of a felony murder, then the Ohio law says that each of the participants whether or not they are was a triggerman has that intent or that purpose but you have to find that they were part of it, and that was reasonably foreseeable that force will be used.

Unknown Speaker: What intent - the intent to kill or the intent to rob?

Mr. Layman: No, the intent to commit an offense.

Unknown Speaker: What do you think it is in this instruction to the jury, it must be established in this case that at the time and question that was present in the mind of the defendant’s specific intent to kill Sidney Cohen.

Does that mean what it says or not?

Mr. Layman: You have to find a specific intent through the inferences coming through aiding and abetting and felony murder rules.

Unknown Speaker: And somebody has to have this specific intent to kill?

Mr. Layman: Right, but you can presume that from all the facts and circumstances in the crime itself.

What Mr. --

Unknown Speaker: But would you presume, do you mean the same thing as infer?

Mr. Layman: Yes sir.

Now, with respect to the mitigating factors --

Unknown Speaker: Mr. Layman, just one detail, you mentioned the testimony about her actual intent, does the record not tell us why she did not go into the pawnshop?

Mr. Layman: That is correct.

She did not want to go in because she was known there.

I --

Unknown Speaker: But does not that suggest she really did not expect the man to be killed?

Mr. Layman: I do not believe necessarily.

There could have been other witnesses there, other people who do were from that pawnshop.

I do not think that is a total answer to that.

Turning to the mitigation phase I would like to point out to the Court that the Ohio Supreme Court in a number of cases has substantially broadened the initial conception or definitions of mental deficiency and psychosis and I point them out in my brief, they are specifically State v. Black and State v. Bell where they broaden the interpretation and while it is true that you take all these factors in consideration in reaching the one of the three specific statutory grounds for mitigation, the Court does consider them.

They do consider each one of the factors that the petitioner complains about the age, the mental state, the degree of participation all work together in reaching one of the statutory grounds and I asked this Court to compare this framework, Ohio’s framework with that of Texas wherein any evidence of mitigation was not in and of itself a basis for mitigation, but had to be utilized in answering a specific question and in Jurek it was whether or not the defendant would be a continuing threat to society.

Each one of those factors was not in and of themselves significant, that a degree of participation or the age or use or the mental state, but they were all taken in consideration through the judicial interpretation of the statute and I would ask this Court to do the same thing with regard to Ohio.

Ohio does consider these factors in reaching their decision.

Petitioner claims that this mitigating factor never works and it is not true Nathan Earl Dew was mitigated on this theory ground, a co-conspirator of the petitioner, but Nathan Earl Dew was the pawn that was directed by the petitioner who planned this, who directed them to go to Sidney Cohen.

She knew that there was going to be likelihood of force, of violent force in reaching the robbery and carrying out the robbery, therefore you have the rule at least in Ohio the felony murder rule and the fact that aiders and abettors are punished equally with the principal.

Unknown Speaker: Are you saying that she had knowledge that the Dew did not have?

Mr. Layman: No, I am not suggesting that, but she is the one that was the mastermind of the crime.

Unknown Speaker: But under the statute how is their principle waived to differentiate between the two, give her the death penalty and that give it to Dew.

Mr. Layman: Because in considering as Black defines the third mitigating factor, the mental state, the emotional state and the degree of participation in it.

She was the mastermind.

She directed this person and you look at Nathan Earl Dew’s mind, his emotional state and you look at Sandra Lockett and she is more culpable and when you talk about well, do you have to intend to commit the murder and intend to kill, I say no, you can consider though that in mitigation, but it should not be in and of itself, the mitigating factor, but it is considered in Ohio’s framework, in 2904 (b) when you consider the nature and circumstances of the crime as well as the history of character and condition of the defendant.

Unknown Speaker: On that degree of participation, do you say that Ohio Court may consider it, it does not fit within the language of anyone of the three specified mitigating circumstances, does it?

But though would you point the language out to me, we talked to you today but it said mitigating circumstance, that the offense was a product of psychosis or mental deficiency, but under which one of those stands would you include degree of participation in the crime?

Mr. Layman: Well, I think it could be considered under anyone of them in that, in reading the first part of it under the first paragraph of B when you consider the nature and circumstances of the crime in reaching this and was this a --

Unknown Speaker: Was the jury so instructed in this case, specifically?

Mr. Layman: Your Honor the jury does not take part in the final sentencing phase.

Unknown Speaker: I have not checked opinion of the Ohio Supreme Court, since you made this point but did the Ohio Supreme Court in this case construe either one of these stands, psychosis or mental deficiency as including degree of participation in the crime?

Mr. Layman: Ohio Supreme Court did not make an expressed determination on that issue and I am saying that you cannot consider all of the established --

Unknown Speaker: Is that the decision of the Ohio Supreme Court that does so include degree of participation within the language of the statute?

Mr. Layman: Not those specific terms as I stated in State v. Black was in the most recent broadening.

It talked about the mental state and the things that go into your mental state or your emotional state and I would like to point out that it seems to me that you can consider whether there was a cold calculative plan by the petitioner to carry out a crime as opposed to some bizarre behavior or some unplanned kind of behavior and look at the degree of participation in that sense in reaching the mental state or the emotional state of the defendant.

Unknown Speaker: That did not say mental state, it says mental deficiency.

I agree with what you say and my difficulty is whether or not it comes within the statute and whether juries are so instructed?

Mr. Layman: I am referring to Your Honor, a broadening interpretation by the Court of that specific language that State v. Black and cited in my brief the citation and Ohio Supreme Court as 48, Ohio State II, 262 which broadens the interpretation of the definition of that particular statute.

Unknown Speaker: And we are to read the statute as interpreted by the Supreme Court of Ohio, is it that what you are telling?

Mr. Layman: Yes sir.

Unknown Speaker: I should not perhaps dwell on this but what about the disparity between Parker and Lockett?

How can state of Ohio conclude that Parker did not commit aggravated murder and the Lockett did?

Mr. Layman: Your Honor I think that is answered in Gregg and the other cases in terms of the necessity for plea bargaining, court approved prove plea bargaining and when you are considering that, you are considering something different than what is before this Court today, the use of mercy, the use of plea bargaining are as I understand did not the same kinds of considerations as you have in this case.

Unknown Speaker: That has accepted a plead from him which necessarily was a determination that he did not commit aggravated murder, was that not?

And now in a separate proceeding out of the same incidence taking the position that Lockett did commit, is that not right?

Mr. Layman: No, that is not correct because Parker did plead guilty to aggravated murder and perhaps.

Unknown Speaker: Was it a murder without aggravation or something I do not mean I understood--?

Mr. Layman: Without an aggravating specification which is necessary to get to the death penalty, you still have the same main charge --

Unknown Speaker: What is the aggravating specification that justifies the death penalty against Lockett and was not present with respect to Parker?

Mr. Layman: Under Ohio statute, the aggravating specification was committing the aggravated murder while committing another crime and this was to what aggravated robbery.

Chief Justice Warren E. Burger: Did she have the same opportunity to plead guilty to that lesser in go to defense?

Mr. Layman: Before trial, she was offered voluntary manslaughter, during trial she was twice offered aggravated murder without the specification and she refused both.

Chief Justice Warren E. Burger: In other words, that was the same degree that Parker --

Mr. Layman: During trial that was the same degree.

Chief Justice Warren E. Burger: But still --

Mr. Layman: Before that the voluntary manslaughter case would only carry was it a 4 to 25 sentence, much less than even aggravated murder case, but she did not accept that at all.

Chief Justice Warren E. Burger: Does this record show whether her counsel recommended that?

Mr. Layman: Yes, they did.

It shows that and they did recommend it and she did not accept it and it is on the record at least in two instances that they wanted to put in the record the offer has been made do you want to accept it and I do not know the rationale, there is one digression in the record where her mother is present and apparently has influence on petitioner.

Unknown Speaker: Is it a correct reading of the Ohio statute that whatever factors may have persuaded the prosecutor that a sentence of 4 to 25 years would have been appropriate in this case and she was sitting outside or whatever might be.

Those factors could not be considered by the sentencing judge, he had to carry out the mandate of the statute?

Mr. Layman: I do not know that I would say that those are the reasons that went into the plead bargaining. Was the strength of the case, whether or not you could convict defendant on --

Unknown Speaker: The judge has considerably less discretion than the prosecutor, that much it clear, a sentencing judge?

Mr. Layman: I would agree to that extent yes.

Once you have got to a conviction of aggravated murder with the specification of it.

Chief Justice Warren E. Burger: Well, is that a question of degree of discretion or it is the question that they have totally different functions, that is the prosecutor and the judge?

Mr. Layman: Obviously that is true.

They have different functions and I do not know that is the kind of questions that we were dealing with when you are saying whether or not this person has been offered to plead before the trial and then having gone through the trial, but you have the same considerations to be facing not only the prosecutor but the trial court.

Unknown Speaker: What is correct, is it not, that if the defendant fails to establish anyone of the three mitigating circumstances, the statute is mandatory in the sense that it requires the death penalty?

Mr. Layman: If none of the mitigating factors are found that is true.

The petitioner contends that the death penalty is disproportionate for this petitioner because she did not commit the crime of aggravated murder with the intent to kill Sydney Cohen, but this totally ignores the rule of aiding and abetting and a felony murder as it is present in Ohio and in federal case law, I cases pointed out and --

Justice Thurgood Marshall: That point as I understood it was not that she should not be convicted or she should not be given the death penalty.

Is that not his point?

Mr. Layman: That is true and I am saying that it is considered, however in relying on Coker in the disproportionality kind of argument you are saying that she is less culpable than the triggerman and I think that that is not kind of thing that this Court can say per se --

Justice Thurgood Marshall: I am not talking about culpability, I am talking about sentencing?

Mr. Layman: True but I think culpability is one of the things that are used in determining whether or not the sentence is imposed properly or not.

What degree of culpability, what degree of planning and participation that she have in this crime?

Did she bring it about and if this Court has to say that the evolving standard of decency argument as well as the disproportionate argument of Coker and Gregg is to apply then you would have to make a rule where person who was classified as an aider and abettor or has a lesser degree of participation than the triggerman then you have to overturn Ohio case law on aiding and abetting.

Unknown Speaker: Well, we are not involved here with a question of Ohio law, we assume the Ohio law has been settled by your legislature and by your Supreme Court construing its enactments, but the question is that Ohio law in its application to this case, compatible with the constitution of the United States that is our question.

I mean Ohio law could conceivably make any unlawful killing or murder punishable by death and there might be no question about what the Ohio law was so that a person speeding and had again killing a pedestrian would be guilty of murder in Ohio and punishable by death.

That would not solve the constitutional question of whether or not the Ohio law in its application to the hypothetical case, I posed was a constitutional law?

Mr. Layman: I agree with that Your Honor; however, in this case you have a very narrow category of murder that is before the Court aggravated murder only applies to a very narrow category of murders. The person has to be either committing a felony murder, and murder for a higher, very narrow group of and only then do you get to the question of mitigating process and when you review the nature and circumstances of the crime here, I think there is sufficient evidence before the mitigating authority or the punishing authority to say that the crime committed was of a degree of culpability, meriting with death penalty and, I would like to turn to the first issue, I might for just a moment and discuss the prosecutor’s closing argument.

Petitioner primarily relies on Griffin v. California which discussed the direct comment of the prosecutor that the defendant did not take the stand and did not see fit to explain the state’s evidence.

This is not the case here.

The prosecutor in this case made the comment that the evidence was unrefuted and uncontradicted but did not directly --

Justice Thurgood Marshall: But he also said that the defense did not put on any evidence?

Mr. Layman: That is true but that is not --

Justice Thurgood Marshall: Well, I mean was in addition?

Mr. Layman: Defense attorney and the defense did not put any evidence, but two things I would like to point out -- the prosecutor’s comments were not objected to a trial and there was an instruction given regarding the defendant’s theory to testify by the trial court that they could not take that into consideration which was directly contrary to the Griffin instruction where they have told that they could take --

Justice Thurgood Marshall: Well, not involved in this case, it has always been (Inaudible) for me to going to person and comment on the failure to take the witness stand as a judge, specifically the instruction?

Mr. Layman: But in relation to this then the state would urge that, first there is a waiver issue under Estelle and additionally that it would be harmless error.

Either one of these factors would be sufficient to refute the petitioner’s comment, however I do not believe that even in and of itself that the comments were such that they were err.

I think you can distinguish them clearly from the Griffin case.

Now, there is one other issue the fourth one that is raised about whether or not this is a new interpretation of the aiding and abetting statute, and I would submit to the Court that it is not a new interpretation, that it is the same and as it has always been.

The legislative commission notes state that this is a codification of the old law.

The trial court in its charge as pointed by petitioner’s counsel, read the old law.

The very quotes he gave you from that charge were the old law on aiding and abetting, unless there is no change and the petitioner had noticed, the old law was to be applied.

I would also submit that this issue is one of statutory interpretation and while as Mr. Justice Stewart noted that it is this Court’s duty to ensure that the statutes are interpreted correctly, still one of statutory interpretation and absence a constitutional issue which they tried to bring in to this case the retroactivity of a change in the law, the statutory interpretation should be followed.

Unknown Speaker: May I go back to the death penalty problem for just a moment.

Under Ohio criminal practice generally, is it normally the practice to take into consideration the prior criminal record of the defendant in the sentencing determination?

Mr. Layman: Yes.

Justice John Paul Stevens: In non-capital cases?

Is there any reason why it is correct, is it not that that prior criminal record is not -- the court is not permitted to take it into consideration, the capital case?

Mr. Layman: No, that is not correct.

You can consider it as I quoted the statute and that you can not only consider the nature and the circumstances of the crime, but you can take into consideration the character, history and condition of the defendant and the history clearly includes just --

Justice John Paul Stevens: Yes, just for the purpose of the determining whether there was duress or whether was mental?

Just for the purpose of determining, one of the three mitigating circumstances?

Mr. Layman: That is true, I would like to point out that --

Justice John Paul Stevens: But in the non-capital case, it is given independent significance, is it not?

Is not the practice of the judge to give it independent weight in determining what kind of a sentence to impose?

Mr. Layman: It is one of the factors that is to be considered among many others in determining sentence.

It is not just the single factor but it is given some consideration or guidelines for sentencing in non-capital cases, just the way there is guideline set up for the mitigation fees.

Under all --

Justice John Paul Stevens: There are more mitigating circumstances that may be considered in a non-capital case, than may be considered in a capital case?

Mr. Layman: There are more statutory and numerated mitigating factors --

Justice John Paul Stevens: Does that sound like a plan -- the legislature would have adopted, but it had not failed but it was compelled to by the Furman case do you suppose?

Mr. Layman: I am not --

Justice John Paul Stevens: Could you defend that really as a sensible way to go about the problem?

Mr. Layman: I think that because the Court made its ruling that they wanted to set up some guidelines, but I do not think that it is necessarily, constitutionally required that it have all the same considerations that you would have, for instance even before that.

Justice John Paul Stevens: In the capital case, a judge would have less latitude than in another kind of case?

Mr. Layman: Now you still --

Justice John Paul Stevens: It sounds weired to me frankly.

Mr. Layman: Mr. Justice Stevens, you have the same ability to make these considerations in going and deciding the question of one of the statutory question --

Justice John Paul Stevens: But not the question of whether or not the capital sentence shall be imposed.

The question of whether or not one of these three mitigating circumstances are present?

Mr. Layman: That is true but in the same manners in Texas where they do not have this as a statutory basis for mitigation, then you have to answer the question.

Is there going to be a continuing threat.

You consider the past record. You consider the degree of culpability.

All of these things go into answering that question but this Court did not require Texas to set out as a statutory grounds, anyone of those factors specifically and say this is a statutory grounds for mitigation.

Justice John Paul Stevens: Do you think the trial judge in Ohio has as much discretion as the trial judge in Texas, in deciding whether or not to impose a death penalty?

Mr. Layman: Yes, sir.

I would also like to point out to the Court that the trial judge here has the benefit of a psychiatric report, pre-sentence investigation.

He has a great deal of information to work with in making his decision and it is required by statute that the trial court have these basis for making his decision so that the Court does have sufficient information to look at the background in the condition of the defendant.

That is apparent in this record where you can now see that the pre-sentence report, the psychiatric examinations were all placed in the record and were considered by the trial court.

If I might quote Justice Stewart in closing in Gregg, Justice Stewart stated that as a heavy burden which rests on those who attack the judgment of the representatives, the people.

And the caution is necessary as this Court become the ultimate arbiter of the standards of criminal responsibility throughout the country and I would suggest that this admonition applies equally well on this case because we have a state that it is not the exactly like any other state.

It is not exactly like Florida, it is not exactly like Georgia or Texas, but it provides mitigating factors which channel the discretion, give guidelines to the sentencing authority.

And I think that it is sufficient to say that this case is not one of a mandatory death sentence.

It gives sufficient guidelines to make the decision to the sentencing theory.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Mr. Amsterdam.

Justice John Paul Stevens: Mr. Amsterdam before you start will you tell us whether you are asking as to overrule the jury and if not whether you agree with your opponent that the jury of the Texas case.

Your opponent argues that the Ohio judge has just as much discretion as the Texas judge that the standards that if we follow the Jurek case where we have to affirm this conviction?

Rebuttal of Anthony G. Amsterdam

Mr. Amsterdam: I disagree entirely.

The dialectic is the same as I disagree with counsel entirely.

The dialectic is the same that is in Jurek, all of the background factors were considered relevant to a statutory question that dialectic is the same, but it makes all the difference in whether that the question is a broad question or a narrow question.

The question in Texas is whether or not the defendant was likely to commit acts of dangers and in the future.

That is a broad question that opens up the defendant’s whole life and in fact virtually anything is relevant to that, but the question under the Ohio statute whether the victim induced the killing, what is the defendant’s background got to do with that at all, whether or not the defendant was under duress.

Defendant’s background has got nothing to do with that?

Mental deficiency, I will come back in a moment to speak to Justice Powell’s question about what it means?

But what it means is something very very narrow?

Yes Justice Stevens, I agree that the dynamic is the same but the problem with Ohio is unlike Texas.

The statutory question to which the background is relevant is so narrow as to cut out most of the defendant’s life with a result that the kind of sending people to the death is a place where is undifferentiated mass which the Court condemned which happens at Ohio did not happen in Texas.

Chief Justice Warren E. Burger: Let me take that last point you made, I am a little confused.

Suppose a woman hired a man to kill her husband so that she could marry someone else.

Do you suggest that under Ohio law or in imposing the penalty that her background would have nothing to do with?

Mr. Amsterdam: Absolutely, it would have nothing.

Chief Justice Warren E. Burger: What if the record showed that on one another occasion she had been charged with the same offense, but found not guilty by a jury?

Mr. Amsterdam: It has nothing to do with it?

Except if that --

Chief Justice Warren E. Burger: Does it not show her state of mind?

Mr. Amsterdam: Except if that is defined as being provocation, but Justice Steven's analysis of the Ohio statute is exactly right, unless one of those three factors is found the death penalty is mandatory and what that means is that every factor that does not go in to one of those three considerations can not even be weighed.

It is irrelevant.

Now, the breadth of those factors is the problem, if one of the Ohio statutes was as broad as question number two in Jurek will the defendant be dangerous in the future, question that opens up the whole affidavit of the problem, but these are narrow and that brings me to Justice Powell’s question.

Justice Powell, may I now direct your honors attention to page 141 of the appendix, in which the trial judge here explicitly defined mental deficiency.

The trial judge and now this is justice Powell on the triar of fact.

This is trial condemned Sandra Lockett on the points of fact under the statute.

This has no juror, judge is making a decision.

The judge says, mental retardation and mental deficiency under the law are synonymous and many goes onto read out of the DSM 2 that is Diagnostic and Statistical Manual of the American Psychiatric Association II Edition, the number categorizing, is saying that not only his mental deficiency identical to mental retardation, you do not have the score -- but you have to score about 70 you are not retarded.

That is why we say that always business about how broadly the Ohio Supreme Court has construed the statute as non sentencing.

The only case in which the Ohio Supreme Court has given a broad construction, the mental deficiency of the black patient, it did not apply the statute to any state of facts in the black patient, simply answering a constitutional challenge that the statute is weighed for vagueness, wherever it has had to apply the term mental deficiency to state of facts, it has said that educational deprivation is not mental deficiency, cultural deprivation is not mental deficiency, emotional deprivation is not mental deficiency, it means mental retardation and if it meant more than that this case would have to be reversed because the trial judge found the facts, found them on the theory that the defendant could be found to have a mitigating circumstance and to escape the death penalty, only if you are mentally retarded.

Now, that brings me back to the question of degree of culpability being considered and if I may speak again to the felony murder question, because I think I were being very unclear on Ohio law as to this, and this is a key question, everyone has asked about it, I think it needs to be be cleared off.

The answer is that Ohio does not have the traditional felony murder rule, that Justice Stewart and justice Rehnquist were talking about.

If you look at page 205 of the appendix, the Ohio Supreme Court says that it does.

Under Ohio and this is not for aggravated murder, this is for first degree murder at all.

There has got to be a purposeful killing in the course of a felony, but what they then say is that any felony which is done with a deadly weapon creates a risk of death as its natural and probable consequence and that one who engages in such a felony is presumed to have intended to kill.

Justice William H. Rehnquist: Then they have a felony murder doctrine when the felony is committed with a deadly weapon?

Mr. Amsterdam: It is equivalent of that Justice Rehnquist, that what it is that they have a different logic but it reaches the same result.

Most states said if you have a killing in the course of a felony, you do not have to intent, you get felony murder.

Ohio says you have to have an intentional killing in the course of a felony, but a killing in the course of a felony with a deadly weapon is presumed to be intentional killing, so you get to exactly the same result and Justice Rehnquist in terms of the answer of your question presumed does not mean to infer, if Your Honor looks at page 117 of the appendix, you will see that the trial judge in charging the jury defines an inference for the jury, and that is very different from what it says about presumption on pages 118 and 119, this is not simply an inference.

Justice William H. Rehnquist: But these are questions that courts in one opinion, you will find misstate or confuse presumption in the inference and I would not be willing to take a face value of anyone single statement in a charge to a jury has been conclusive on a state’s law?

Mr. Amsterdam: I would totally agree, but the point is that every judge who has considered this case below has taken the position the Sandra Lockett was convicted not because in fact she intended Sydney Cohen’s death, not because the jury could have inferred that but because Ohio law says that if you engage in an armed felony, you are presumed; language in the Court of Appeals’ opinion, that liability is attached to the defendant, ascribe to the defendant, this is not language of inference.

This is the language that says the defendant is treated as though she intended killing Sydney Cohen even though she did not and Mr. Chief Justice the answer to the question of what would the jury have done if it had found that she did not intend to kill, the answer to that question is that this jury following these instructions could not have found that she did not intend to kill because if they followed the instructions they were given, they had to find that if she engaged in a plan to participate in armed robbery that she was presumed to intend to kill so this jury could not have acquitted.

The facts of this record --.

Chief Justice Warren E. Burger: That is a law of a felony murder that you have just stated is it not?

Mr. Amsterdam: It is the Ohio version if you will of a felony murder rule, although the trappings of it are different, the result is exactly the same.

So what we have is a case, in which the following are the facts and not only resulted in the death sentence but were not even permitted to be considered by the sentence served and here again is my major disagreement with counsel.

These facts because relevant only to three narrow issues which do not in fact make that relevant, do not enter in the sentencing (Inaudible).

Defendant not only was not the triggerman, that is not terribly the point, but the defendant did not herself participate in any plan or scheme that in corpus killing as a part of the design.

Her culpability is no greater than that of any --

Unknown Speaker: But the Ohio Supreme Court say that she participated in the plan where it was reasonably likely that a killing would take place that is what it said?

Mr. Amsterdam: Oh, I would agree that that factual finding is supported, but Your Honor what this Court said in Gregg was that if that any --

Unknown Speaker: But that is more than the saying it is presumed.

They are ultimate, their bottom line was the Ohio Supreme Court that on this record Sandra Lockett intended to kill that was their bottom line?

Mr. Amsterdam: No, Your Honor it is more I think presumed what the Ohio --

Unknown Speaker: Well, here is page 2 that the record reflects that this was the case and establishes beyond a reasonable doubt that the appellant had a purposeful intent to kill that is their bottom line; however, they got there?

Mr. Amsterdam: The point of mine is a pure and unmitigated fiction, Your Honor is it not?

Is it what the Court said --

Unknown Speaker: I know they say that if you are engaged in a plan where one of the reasonable results would be a killing?

Mr. Amsterdam: Your Honor --

Unknown Speaker: Now, I am just saying what they said?

Mr. Amsterdam: Mr. Justice Holmes once pointed out that even a dog knows the difference between being kicked and tripped off and what the Ohio statute says, if that you can trip over a dog you are presumed to kicked; in short, the defendant’s actual intent to participate in a killing is irrelevant if the Ohio Court deems that death may result from a dangerous robbery the defendant is presumed deemed, treated as though, she committed the deliberate intentional killing which this Court --

Unknown Speaker: Well, this does not distinguish Parker from Lockett, I think it?

Mr. Amsterdam: Nothing distinguishes Parker from the defendant in this case except the state’s decision not to treat them as capitally punishable offender.

Justice Thurgood Marshall: You said very vigorously that this was a fiction.

It is not the concept of felony murder a legal fiction in the classical sense?

Mr. Amsterdam: Your Honor I have not the slightest doubt that the use of a felony murder rule as a fiction and the question as Mr. Justice Stewart put it, is whether life or death may turn on it.

Certainly, some fictions cannot be used in the law that the Pinage case has held that you cannot forbid slavery and you cannot say anybody who breaks a labor contract is deemed to have intended at the time he entered into it to have defrauded and therefore you can specifically enforce it that is involuntary service.

But here we say Ohio is done the same thing.

It has used a fiction that treats a non-murderer as a murderer and this Court said in Gregg, the death penalty was forced in for deliberate murder.

That is not the defendant’s say by fiction that fiction we say is unconstitutional.

Unknown Speaker: Mr. Amsterdam do you think it is very common to say that the Ohio legislature is here creating the problems we have here and misunderstood the Court’s holding an affirming.

Mr. Amsterdam: Oh, absolutely.

The two authors of bill have said in their own article that describing what happened that the statute with which were confronted here was due to senate amendments to a house version that would not represent any of these problems of course that said.

Unknown Speaker: Well, you have argued firmly -- they you argued firmly, did you not?

Mr. Amsterdam: Yes Sir.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.