BULLINGTON v. MISSOURI

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ORAL ARGUMENT OF RICHARD H. SINDEL, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We'll hear first this morning Bullington v. Missouri.

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

Mr. Sindel: Mr. Chief Justice, and may it please the Court:

In July of 1978 Robert Bullington filed a motion to quash the jury panel to be commenced against him under this Court's decision in Taylor v. Louisiana.

It was contended at that time that the statutes constructed in Jackson County violated those provisions in that case in that they excluded women unconstitutionally from the jury.

Five months later he proceeded to trial for his life, at which time the jury came back with a verdict of guilty, the guilt phase of the trial, and rendered a sentence of life imprisonment.

The question now before this Court is whether or not the State of Missouri can seize upon the opportunity to take the reversal of that decision of guilt pursuant to this Court's decision in Duren v. Missouri and resubject and resentence this individual to a trial for his life.

Throughout the proceedings counsel for the defendant and the defendant persisted in claiming that to proceed to trial with the jury panel so composed violated his constitutional rights.

The trial court, following the mandates of the Missouri Supreme Court, denied these motions.

He proceeded to the trial.

Subsequent to the trial his motion for a new trial was sustained and a new trial was ordered.

The State filed a notice of aggravation of circumstances pursuant to Missouri statutory guidelines.

At that time the petitioner filed a notice to quash those aggravating circumstances, contending that he was subject to the Double Jeopardy Clause and that any retrial or relitigation of an issue that had already been determined by a jury was precluded by that clause.

He also at that time contended that it would unnecessarily and needlessly chill his rights to a jury trial, that it would be... that any sentence of death at the second proceeding would be excessive and disproportionate to any sentence, the sentence of life at the first proceeding, and that the statutory provisions under which the State intended to proceed were vague and overbroad under the Fourteenth Amendment to the Constitution.

Justice Rehnquist: Mr. Sindel, what if your client had been convicted by the jury or the judge and sentenced to the death penalty in the first proceeding and it was set aside on the Duren ground?

Mr. Sindel: I think that at that particular time since there had been no determination by the jury of an acquittal or that death was not the appropriate sentence in this particular case, and a jury is specifically instructed in Missouri as to what they need to find.

They need to find the existence of an aggravating circumstance beyond a reasonable doubt, and that that aggravating circumstance is not outweighed by any mitigating circumstances that are presented, either statutory or non-statutory.

If at that time the jury had obviously determined that in fact an aggravating circumstance did exist, then I think the State would not be precluded, because it would not be tantamount or substantially equivalent to a verdict of acquittal.

In this particular case the State had one full fair opportunity to present to the jury their version and why this defendant should suffer with his life.

And at this, they presented all the evidence they wanted to, they presented all the evidence that they had.

In fact, they have conceded that they have no additional evidence.

Unidentified Justice: Does that make any difference?

Suppose they did not make that concession, would you be arguing the same way here today?

Mr. Sindel: Yes, I would.

I think that the verdict of acquittal... I don't believe that the State can seize upon the opportunity because of the trial court's necessary action considering the Missouri Supreme Court's refusal to recognize the decision in Taylor, the trial court's necessary action in putting this defendant to a trial, I do not think that they can seize upon that opportunity to muster additional evidence.

But I don't think that necessarily it makes any difference whether or not there is additional evidence or there is not, to the issue of double jeopardy.

The question is whether or not this defendant was placed in jeopardy, whether or not he went through the ordeal, the anguish of a trial and whether or not he should be subjected to that same ordeal, that same anguish, a second time when a jury, unobjected to by the State, a jury composed, in their opinion, I assume, properly, can then render a verdict of acquittal.

There's no question in Missouri that the sentencing phase is functionally equivalent to a trial.

There is no difference in a trial in the functioning phase except for the evidence that may be introduced.

Justice Stevens: Mr. Sindel, let me ask you one question, if I may.

At the sentencing phase, the jury returned what was like a general verdict of, saying life imprisonment rather than death.

Mr. Sindel: That is correct, Your Honor.

Justice Stevens: Supposing your procedure required the jury to make special verdicts, and they had found that pursuant to Instruction No. 38 even though the mitigating circumstances do not outweigh the aggravating circumstances, as a matter of leniency we will not impose the death penalty.

Mr. Sindel: I believe that's... excuse me.

Justice Stevens: Had that been done expressly, would you then have the same position here?

Mr. Sindel: I would.

First, I would like to point out to the Court that that instruction does not have anything concerning leniency.

Justice Stevens: Well, I know, but it says they are not obligated to impose the death penalty even if they find in aggravating circumstance and also that the aggravating circumstance is not outweighed by the mitigating circumstance.

Mr. Sindel: And I believe that that instruction is consistent with this Court's decision in Lockett, wherein they say that there has to be allowance of a broad scope to the defendant.

Justice Stevens: There's no problem with the instruction.

My question is, what is your position if the jury had made it, articulated a basis for a decision that it was pursuant to this instruction rather than to any deficiency in the prosecutor's proof?

Mr. Sindel: But I think that that instruction does cover nonstatutory mitigating circumstances.

As I read that instruction, and as it is given to the jury, it allows them to determine from all the facts in the case, not those specific facts of aggravating circumstances or mitigating circumstances but all the facts as to whether or not death is the appropriate sentence.

And I think that under that instruction, if they were in fact to return a verdict, special or otherwise... in other words, if they returned a verdict saying, we just didn't find any aggravating circumstances, I think that obviously that would be without question an acquittal.

If they returned a verdict and they said, the mitigating circumstances as submitted were such that we determined that they outweighed the aggravating circumstances, again that would be the functional equivalent of acquittal.

If they find--

Unidentified Justice: Mr. Sindel, isn't your position really... why, for whatever reason the jury may have done it, they did not impose the death penalty, they imposed only a life sentence, and that act operates as an implied acquittal of the death sentence?

Mr. Sindel: --Absolutely.

Unidentified Justice: In other words, I gather, this would be an extension of Green, wouldn't it, if we were to agree with you?

Mr. Sindel: Yes, I believe it would be.

Although, in Green they talked of an implied acquittal, and I don't believe there is anything implied in this acquittal.

Unidentified Justice: Would you say that it's an actual acquittal?

Mr. Sindel: It's an express acquittal.

They had that choice and they came back with it.

And they came back and they said, we find that the State has failed to prove their case.

So that in terms of distinguishing on that grounds, I think that it has more strength, even.

Unidentified Justice: Well, it is possible, isn't it, that a jury, irrespective of the evidence, irrespective of instructions, for whatever reason, they decide not to impose the death penalty?

Mr. Sindel: That is correct, Your Honor.

The jury has complete power under the Constitution of the United States.

They have the complete power to render any decisions that they wish and that cannot be attacked.

It cannot be dissected.

It cannot be circumscribed in such a way as to try and glean or pull from that decision why it came about.

In this particular situation it's obvious that no matter where the determination came from it came down, and they said, death is not the appropriate punishment, life is appropriate in this particular case, with this particular defendant.

And in the same way, by examining these factors and by determining that life in fact is the appropriate sentence, any other sentence under this Court's decision wouldn't necessarily be excessive and disproportionate; another part of our argument.

Justice Rehnquist: Mr. Sindel, in your answer to Justice Brennan's question a moment ago you said the jury expressly found that death would be an inappropriate sentence in this case.

Was there a written interrogatory or written special verdict to that effect, or are you simply relying on the fact that they came in with a life sentence rather than the death sentence?

Mr. Sindel: There is no special interrogatory or special verdict form that's allowed in the State of Missouri.

However, I think that it's clear that if a jury comes back with a life imprisonment sentence, that they must have found that death was in fact inappropriate.

There is very little that they could have otherwise found.

The jury was death-qualified pursuant to Witherspoon, so there's obviously no people that are sitting on the jury that are so constituted that they could not impose the death penalty.

These are individuals who indicated under questioning that they could in fact impose the death penalty in the proper case under the proper circumstances.

The only thing that can be concluded is that in fact this was not the proper case or the proper circumstances.

Now, we would also contend that any sentence other than the sentence of life would have to be excessive and disproportionate under the Court's earlier decisions.

There's no question that the jury had the opportunity to weigh this particular defendant and in the vital interest of the community and the vital interest of the defendant, they determined that the only appropriate sentence was life.

So under those circumstances a retrial and allowing another jury to determine if the first jury was correct, and the Supreme Court of Missouri dealt with this by saying, we can't say whether or not the jury below was a maverick jury.

You don't really know.

But if you allow, if you allow the Supreme Court of Missouri to say that, then every time a life sentence comes down, they can say, that could have been the result of a maverick jury, and then the comparison test that is so vital to this Court's decisions in the holding that Georgia's statutes in Gregg, where they'd said that this appellate review is one of the vital elements that's necessary under the Eighth Amendment to insure and to guarantee both to the community and to the defendant that his rights under that amendment will be respected, will be lost.

I think it's important to point out in terms of the double jeopardy argument and in terms of every argument throughout this case that it is a death penalty case, and there's no question as to how unique it is.

This is why perhaps Stroud and Pearce and Chaffin need to be reconsidered.

They did not provide in those cases for the strict statutory guidelines for the sentence's discretion.

These guidelines are to focus the sentence on the particular circumstances of the case in such a way that we can assure ourselves, assure society, and assure the defendant that he is getting the benefit of all the constitutional rights, because it is a unique penalty.

Justice White: So you're... what about in non-death cases, where, in jury sentencing, and the jury comes in with a sentence of ten years and on retrial the other jury comes in with a sentence of 20 years?

Mr. Sindel: I think that there's no question under the Chaffin decision that that would be proper.

Justice White: Well, I know, but your argument seems to me to require overruling those--

Mr. Sindel: I don't believe so.

I think there's two distinguishing characteristics.

First, this Court recognized in distinguishing... in the Gardner case they distinguished Williams v. New York, a death penalty case, and they say, well, we think that due process requires that there be an adversarial proceeding and that the lawyer be disclosed the contents of a presentence investigation.

Now, there was no overruling of the Williams case because in U.S. v. Grayson that case was again upheld, and they said, the court can determine from the defendant's testimony if they believe that he was committing perjury, and they can use that, in fact, in sentencing.

So there's no question that you do not have to overrule.

But it is perhaps necessary to reconsider the decisions in those cases for two reasons.

One, those cases took place prior to this Court's decision in Gregg, recognizing how unique and irrevocable and final the sentence of death is, and two, the idea that the sentencing phase of this trial is exactly like a trial.

There are opening statements.

There is the introduction of evidence, and the taking of testimony.

There are instructions to the jury, there are arguments of counsel, there is then deliberation by that jury, and a verdict.

This is the functional equivalent of an acquittal.

If it walks, talks, and looks like a duck, it's a duck.

There can be no question that this defendant had to undergo the ordeals and the anxiety and the pressures that exist at trial.

Now, this Court in Breed recognized the existence of those pressures and that ordeal in a juvenile court case and they said, well, then, it doesn't have perhaps as many pressures as a situation where you're on trial in a felony case, but it's still enough, and we recognize that the defendant has a right to be protected for having to undergo those ordeals again.

There can be no question, the magnitude of the ordeal when you are being tried for your life, and there can be no question that this needs to be protected, that the defendant needs to have the protection from this Court of having to undergo that experience again, and that the Double Jeopardy Clause guarantees it to him.

In this Court's decision in Di Francesco there was remarks concerning the finality of judgments, and we are here talking about the finality of judgments, for that jury did render a final decision, a final verdict, and the State had their opportunity to make their case for death.

And the defendant in that case, unlike the defendant in Di Francesco, had a right and was entitled to expect the finality and the repose that is guaranteed to him under the Double Jeopardy Clause.

And unless he is accorded that, there is no question that the State can seize upon the opportunity again and again and again.

Justice White: Well, why should you rely on, be entitled to rely on what this jury did, when you say that jury was unconstitutionally constituted to render a decent verdict?

Mr. Sindel: There was one verdict that jury--

Justice White: Apparently, you think it was enough of a jury for you to hang your hat on for an acquittal?

Mr. Sindel: --Absolutely, because there is no question that that jury was empowered to acquit.

If that jury--

Unidentified Justice: Your position was that jury was a nullity.

Mr. Sindel: --Excuse me?

Unidentified Justice: Your position when you asked for a new trial was that in effect the jury was not a jury.

Mr. Sindel: Our position was that the jury was unconstitutionally composed.

Unidentified Justice: So, then, it wasn't a jury, was it?

Mr. Sindel: Would there be any question in this Court if we had filed our motion, in that case, if they had returned a verdict of not guilty of murder, and perhaps guilty of one of the other offenses, that he could then be retried because we were able to obtain a reversal on that conviction?

I think that Green talks specifically in terms of that kind of forfeiture.

This is not a question of a waiver of rights, this is a question, then, does he forfeit the protections guaranteed to him under the Double Jeopardy Clause?

And Green talks specifically in terms of forfeiture, and that he is not to lose his right to a constitutionally composed jury in exchange for a valid plea of formal acquittal.

I think there can be no question in this case that that jury was constitutionally composed only to render a verdict of acquittal but they could unquestionably render that verdict.

Unidentified Justice: I take it you anticipate a more sympathetic jury the second go-around?

Mr. Sindel: I certainly hope for a more sympathetic jury.

Unidentified Justice: Even though a harder-nosed jury didn't give your man the death penalty?

Mr. Sindel: That's correct.

I would... I obviously have no idea what the jury's going to be like the second time around.

I obviously hope that it's a sympathetic jury.

I obviously hope that it's a constitutionally composed jury.

Unidentified Justice: Well, you'd like a second bite at the apple, wouldn't you?

Mr. Sindel: Well, I would like a second bite at the apple, but then there is no constitutional provision that forbids that second bite to me, but there is a Fifth Amendment provision that forbids that bite to the prosecuting attorney.

Justice White: Well, it's just... maybe it's just an accident that the flaw you found in your case was related to the jury.

You might have gotten a reversal on some other ground that, in some other case, which wouldn't involve any attack on the jury?

Mr. Sindel: That's correct.

Justice White: Then your issue would be cleaner now?

Mr. Sindel: I don't think that the issue would be any cleaner.

I think that it would be identical.

Justice White: Well, I know you don't, and you must not think so.

Justice Rehnquist: Well, what if the original conviction had been reversed for failure to suppress testimony secured in violation of Miranda?

Would you say that the double jeopardy provision barred retrial with the possibility of the death penalty?

Mr. Sindel: Yes, sir.

Absolutely.

Justice Rehnquist: How do you reconcile that with our decision in United States v. Scott?

Mr. Sindel: Well, I... well, my understanding is that if there was an acquittal of any offense.

Justice Rehnquist: Well, the jury convicts, an appellate court reverses, because there was improperly admitted evidence in violation of Miranda?

Mr. Sindel: But we are not asking the Court to set aside a verdict of conviction.

We are asking the Court to recognize a verdict of acquittal, and that is a distinct difference.

In Scott they did not talk in terms of whether... they did talk in terms but found that that was not an acquittal.

But in this particular case it has no other coloring.

It is an acquittal.

There is no question that the jury was there and could acquit, that they had the evidence in front of them; the State has in the beginning conceded that there is no additional evidence.

So it's obvious that whatever evidence they're going to present at the second trial, it's identical to the evidence that they presented at the first trial, and there is no reason that the defendant should have to undergo that ordeal.

In fact, there's specific reason in the Constitution why he shouldn't have to undergo that ordeal.

And there's no reason why the prosecution should have a second bite at the apple when what we have is an acquittal.

We do not have the... setting aside the conviction because of preindictment delay, or because of motions to suppress, or other motions that do not go to the determination of factual elements of the offense.

Unidentified Justice: You're the one who is asking for the second bite, the State didn't ask for the second bite.

Mr. Sindel: Well, I asked for the second play, but I do not believe that by asking for the second trial I waive my rights to protection under the Double Jeopardy Clause.

Unidentified Justice: Counsel, doesn't your argument really get down, as so many of these cases do, to the proposition that death is different?

Mr. Sindel: That is one part of the argument.

There is no question that because death is different, this case has the two elements.

One is the death, and one is the procedures and the specific statutory guidelines that had been set up.

Unidentified Justice: Well, as Justice Rehnquist pointed out, the authorities seem to be against you on most of the procedural points.

Mr. Sindel: But the authorities have never dealt with the situation in what's been a bifurcated trial.

The jury is given specific guidelines, given instructions, submitted evidence to them, and then asked to make a determination as to whether or not that evidence is sufficient beyond a reasonable doubt to establish the elements of the State's case.

And I think that that is the distinguishing characteristic that cannot be ignored.

I think also the fact that this is a death case makes it unique, perhaps the bifurcation.

The State argues that it is the bifurcation that we say is the unique part, but it's not really that.

The bifurcation serves the purpose both of the State and of the defendant.

It precludes the defendant from having to be subject to evidence that would not be relevant to his guilt, but it also allows a State the opportunity to present that evidence in an effort to persuade a jury that in fact they should return a verdict of guilt.

In fact, under the statutory provisions in Missouri, the one in which it says it's outrageously or wantonly vile, horrible, or inhuman, I assume that at that they could present inflammatory photographs that would not be relevant to guilt or innocence and would be precluded from the trial.

Under this particular circumstance they certainly could not come back into court after the jury had rendered a verdict of life imprisonment and say, wait a minute, I have some new photographs, and these photographs absolutely will convince that jury they should return a verdict of death.

Can I have another opportunity at it?

It's precluded from that.

Unidentified Justice: Well, what about the situation where you have another panel of 12 jurors and this panel of 12 jurors happens to believe three or four prosecution witnesses that the earlier panel did not believe?

Mr. Sindel: I don't believe it's a question of belief or not belief in this particular case, but I don't think that the prosecution is allowed the opportunity to again present their case to either strengthen it or to present the same case.

He could not come back in and say, after a verdict of acquittal at a guilt phase, I'm sorry, the police officer just told me that he got a confession from this man.

Can I come back in and resubmit the case to you?

And some juror says, well, if I heard that, I would have convicted; you can't reimpanel that juror, once they have come back with acquittal.

Justice Rehnquist: You don't disagree, do you, that as to your double jeopardy contention, your client can be retried on the same charge, but the death penalty not sought?

Mr. Sindel: Absolutely not.

I believe he can be retried.

In fact, I think that Justice Harlan in the Tateo decision specifically points, and I think that is the point that perhaps the Double Jeopardy Clause hinges on.

There has been the talk of the continuing waiver theory and whether or not he waives his right to the protection of the double jeopardy clause.

But Harlan talks, Justice Harlan talks in terms of the balancing of society's interests as against the defendants' interest, and in this particular case society's interest has been vindicated, it has been properly represented as well as the defendants'.

And at that time society through this jury spoke and they spoke and said, this man does not deserve to die.

I wish to reserve the balance of my time.

Unidentified Justice: Just before you sit down, your argument would require us to directly overrule Stroud v. United States and to overrule what was said, at least, in North Carolina v. Pearce and other cases, wouldn't it?

Mr. Sindel: I don't believe so.

I think it only required that they be reconsidered in light of this Court's decision in Gregg v. Georgia, recognizing--

Unidentified Justice: Well, Stroud was a decision directly on this issue, wasn't it?

Mr. Sindel: --It was a decision in which the jury was not presented with evidence as to why, in fact, a verdict or a particular sentence was proper.

And it did not involve this either-or decision similar to the guilt or innocence decision in a trial, at the particular trial phase, at the guilt phase of the trial.

Stroud does not, and I believe that the Gregg decision requires that Stroud be reconsidered in light of that.

Stroud, individually, at that time, did not have the entitlement to finality that this petitioner deserves.

And I think that it's only a reconsideration of Stroud rather than an overruling of the general principle there.

Unidentified Justice: Well, I won't take any more of your time.

Chief Justice Burger: Mr. Cook.

ORAL ARGUMENT OF JAMES J. COOK, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Cook: Mr. Chief Justice, and may it please the Court:

Petitioner in this case... excuse me.

My name is James Cook, Assistant Prosecuting Attorney for St. Louis County and I represent the respondent, the State of Missouri.

Petitioner in this Court has asked this Court to do certain things, but it is our position that if the death penalty is a legitimate state interest, and if jury sentencing is a legitimate State interest, and if as a general principle increased sentences on retrial does not go against the Constitution as long as we protect against vindictiveness, then there should be no prohibition against a State seeking the death penalty in this particular case.

We believe that what the petitioner asks this Court to do basically is to overrule Stroud, Pearce, Chaffin, and Di Francesco, at the very least.

First position is that the procedure that we now have for death penalty cases, that being the bifurcation, makes the sentencing like a decision of guilt or innocence.

Justice White: Well, Mr. Cook, in Missouri is the jury ever asked to specifically determine what aggravating circumstances and what mitigating circumstances they find present in the case?

Mr. Cook: If they come back with the death penalty, they must state which of the aggravating circumstances they have found beyond a reasonable doubt.

If they come back with life, we don't know if they found that aggravating circumstances existed, so as to ignore--

Justice White: They may have found no aggravating circumstances or they may have found that there were mitigating circumstances that outweighed the aggravating circumstances, or they just may have been merciful.

Mr. Cook: --Right.

We don't know.

Justice White: Suppose you did?

Suppose there was a jury came in and said, we find, we impose life because the mitigating circumstances outweigh the aggravating ones?

Mr. Cook: I don't think that that would be a problem here.

I think you'd have a problem--

Justice White: Well, would it... could you then retry him?

Mr. Cook: --I think so.

Justice White: And ask for death penalty?

Mr. Cook: I believe so.

Particularly in light of--

Justice White: Well, what if they said, we find that aggravating circumstance A was not present?

Could you then on retrial press that same aggravating circumstance?

Mr. Cook: --I'm not sure.

I think that on one hand you could say res judicata.

Justice White: Yes.

Mr. Cook: On the other hand, though, this Court has approved the statutory theory of Florida which is that even if the jury doesn't find the aggravating circumstances, the judge can.

So I think that--

Justice White: So you're relying mostly, then, on the fact this is a general verdict, and the jury just might have been merciful?

Mr. Cook: --I don't want to say I'm relying on that but I do assume that.

What I'm relying on is that the procedure alone does not make this into a decision like--

Justice White: Well, if you assume that the jury imposed life because they found there were no aggravating circumstances you have a problem about pressing the same aggravating circumstances, if you just assumed that that's what the jury did.

I would take your case as not so clear either if the jury said there are both aggravating and mitigating circumstances, but the mitigating circumstances outweigh the aggravating circumstances and the State on retrial says, we're going to present precisely the same evidence.

Mr. Cook: --Right.

I believe my position is easier because of the way the jury system is set up, the instructions under the general verdict type of approach to the specific verdicts.

But I think that you still need to look at the policy behind why we apply double jeopardy.

We apply double jeopardy not really because of the finality, or repose, or the other things that we've talked about.

I submit that this Court has suggested or found that we apply double jeopardy in order basically to protect the individual against government oppression.

The Double Jeopardy Clause is in a way an exception to our basic legal system, which is to find the truth by having your day in court and making sure on appeal that that day in court was done properly.

And under that system you would say, well, the State should be able to check and have an appeal to make sure that was done properly.

But we cannot protect against government oppression and still do that so we make a blanket exception to that and put it in the Bill of Rights and say, okay, the State only gets one shot.

But we do give exceptions to that by saying, if the defendant appeals, the slate is wiped clean.

We don't say that in a way of vindictiveness.

We say that to emphasize the fact that it is only the defendant that can set aside a conviction.

And of course he wouldn't be interested in setting aside an acquittal.

So that when you would take this policy and you try to apply it to the sentencing procedures, or sentencing at all, as was recognized in several of the recent cases, it doesn't apply.

Because you have said, or this Court has said that there's no absolute bar against increasing a sentence.

The only concern we have against increasing a sentence is to protect against vindictiveness.

And we say, in a judge sentencing situation, we have to do that by adding the Pearce limitations, but in the jury sentencing situation we don't have that concern.

There is not that concern about vindictiveness, so we don't need to have the double jeopardy applying to sentences.

Therefore, I think this procedure does not make this into an acquittal.

Bifurcation is for the protection of the defendant, it is not meant to give the sentencing a greater finality than it ever had before.

Justice Marshall: Mr. Cook, suppose the statute said that you can be guilty of first degree murder and second degree murder, which I assume you have in Missouri.

Mr. Cook: Yes, sir.

Justice Marshall: And if you're convicted of second degree murder, you're acquitted on first.

Mr. Cook: Yes, sir.

Justice Marshall: In Missouri?

Mr. Cook: Yes, sir.

Justice Marshall: So why isn't it automatically true that if you are found guilty of life imprisonment you are acquitted as to death?

When you boil it down, that's what they're arguing, isn't it?

Mr. Cook: Yes, sir, I think so.

It's... that argument certainly has been made by members of this Court here and I just think that it is, when you look beyond that argument, behind it, you see that there is a distinction between differences in sentencing and differences in offenses--

Justice Marshall: Well, what would be the difference if they said that you can get life for one or 100 years for the other, and it was the degree was used?

It still would be... you'd go with the first, wouldn't you?

Mr. Cook: --I think you have to look at what that is entitled and what is--

Justice Marshall: But is the language really important or what happens is important?

Mr. Cook: --What happens.

Justice Marshall: The jury said, this man shall not be killed.

Mr. Cook: That's right.

Justice Marshall: In the first hearings?

Mr. Cook: Yes, sir.

Justice Marshall: And, but he was again put in jeopardy as to whether he should be killed or not.

Mr. Cook: Because--

Justice Marshall: Right?

Mr. Cook: --That's correct.

Justice Marshall: That's correct, so.

Mr. Cook: If... well, that's not correct.

You see he was not put in jeopardy about being killed again.

He is put in jeopardy... he's never lost jeopardy or he was put in jeopardy again when his case was--

Justice Marshall: What do you mean, he never lost jeopardy when the jury came in?

Mr. Cook: --Well, that is true if you assume, Mr. Justice Marshall, that jeopardy applies to sentencing.

And I don't think that that is what this Court has said in the past.

Justice Marshall: I didn't... mine was just hypothetical, was that it had... it wasn't sentencing, it was degree of crime.

Mr. Cook: I see.

Well, if the degree of the crime is different, then, yes, jeopardy would have attached and he would not be able to be charged with that.

But then after he--

Justice Marshall: Well, if Missouri says, if you killed somebody with aggravating circumstances, you are subject to conviction of first degree murder and death.

If you are guilty of homicide without those problems, you are guilty of second degree murder and sentenced to life.

Right?

Are you with me?

Mr. Cook: --Yes.

Justice Marshall: And the jury brings in a second degree verdict, life.

Can you try him again on first degree?

Mr. Cook: No.

Justice Marshall: So the only difference is words?

Mr. Cook: No.

I see what you're saying and I think that this Court has rejected that argument.

There is a difference between sentencing and the offense, and although death is unique, certainly, and the fact that the death penalty is available on one case certainly makes it unique, I think that there has been this historic distinction made between what you call an offense and what you call a sentencing.

Justice Marshall: I hope you realize that my hypothetical didn't say anything about limited to death.

Mr. Cook: I understand.

Justice Marshall: Right?

Mr. Cook: Yes.

Justice Marshall: We're together that far.

Mr. Cook: Petitioner mentions that death is unique and therefore that is one of the reasons why this Court can distinguish This case from Stroud, or certainly, Pearce and Chaffin, and Di Francesco, even.

I would suggest that, and agree, that that is unique, that the death penalty is very unique and this Court has bent over backwards, perhaps, to put out extra special procedures for making extra care that the death penalty is only imposed in certain specific situations.

But the uniqueness of death does not allow it to change the basic rules of law called double jeopardy and due process and equal protection, and that is what petitioner asks you to do, and asks you to say as far as Stroud and Chaffin and Pearce that in all cases except death penalty cases double jeopardy means thus-and-such, but in death penalty cases it means something else.

I don't think you can do that, because I think that whittles away at the underpinnings of the whole legal system, which is the Due Process Clause, Double Jeopardy Clause.

The other matter that--

Unidentified Justice: Incidentally, I gather your colleague argues not only the Double Jeopardy Clause but Due Process, doesn't he?

Mr. Cook: --I think so; yes.

Unidentified Justice: And what's your response to that argument?

Mr. Cook: I think the Due Process Clause comes in here under the vindictiveness issue.

Certainly that was the understanding in the Pearce case.

Unidentified Justice: Only?

Mr. Cook: I believe so.

But we worry about vindictiveness as it applies to the sentencing by the jury--

Unidentified Justice: And sentencing by jury doesn't apply then sometimes?

I mean, Pearce doesn't apply to--

--That's Chaffin v. Stynchcombe.

Mr. Cook: --Yes, Pearce does net apply because it's a jury sentencing and that's Chaffin and that's indicated that the concern that caused us to set the limits.

Unidentified Justice: And you don't think the concept of death being unique makes this a different kind of due process claim?

Mr. Cook: No.

I think that this Court has historically in applying due process made sure that certain procedures are followed, that certain laws not be allowed to take away the defendant's due process, but it did not change due process, which is what I think you have to do to make an exception for the uniqueness of death.

Justice Stevens: Mr. Cook, hasn't the State of Missouri itself taken the view that death is different by setting up a special procedure for imposing the death penalty?

Mr. Cook: Yes.

I think so.

Justice Stevens: So, would it be necessarily undermining the entire legal system to say that the rules with respect to capital sentencing are somewhat different as a constitutional matter from the rules for lesser sentences?

And that's certainly implicit in the Gardner holding, isn't it?

Mr. Cook: Yes, sir, I think that raises it perhaps too high, that it raises it above the constitutional procedures.

Justice Stevens: Do you think it's perfectly clear that the Di Francesco holding will apply to death cases... to death?

Mr. Cook: I think that the underlying assumptions and findings in the Di Francesco can apply too, yes; recognizing that sentencing is different, and whether that be a sentencing concerning death or not does not make any difference here.

Certainly in other situations and in the procedures that we follow and the safeguards that we set up, it does make a difference.

Justice Stevens: To put the question more directly, supposing Missouri had a procedure that if the jury does what it did in this case, find no death penalty is appropriate, would it be constitutionally permissible for the State to say, well, there shall be an appeal to an appellate court which could reverse that determination and decide that, well, we think there should be a death penalty, evidence of aggravating circumstances are pretty strong, and so forth?

Mr. Cook: I think so, because I think that's what you have in Florida, where you have what is called an advisory jury opinion.

But certainly I wouldn't think that this Court would allow a state legislature to just call something advisory when in fact it is a jury determination of finding of death or life.

And certainly, in that situation, the judge can overrule it.

Now, there are certain procedural safeguards.

Justice Stevens: What about a procedure that said, we'll have a bifurcated hearing except that if the jury finds no death penalty we'll have a second jury empaneled and have them take another look at it and have a trial?

I suppose that'd be permissible too.

To just specifically say, the State shall have two chances to persuade someone that the death penalty is appropriate?

That's, I guess, what they have in Florida.

Mr. Cook: Well, sort of.

Justice Stevens: Would you think that would be permissible constitutionally?

Mr. Cook: It doesn't sound good, but I don't know the details.

Justice Stevens: It's consistent with your position.

Unidentified Justice: You would have exactly the same issue as you have in this case, wouldn't you?

Mr. Cook: Well, then, you could... I don't think so.

It really doesn't sound very good, though, because, you see, the difference, the difference, I think, is that in this case... in that case it is the government saying, aha, we want two shots at--

Unidentified Justice: Well, here it's the prosecutor.

Mr. Cook: --No, it's the defendant.

It's the defendant's--

Unidentified Justice: No, it's the prosecutor who's filed these aggravating circumstances--

Mr. Cook: --That's correct.

Unidentified Justice: --And is going to ask for the death penalty again, wants to.

Mr. Cook: That is correct.

But it is the defendant who has at his own behest wiped the slate clean and allowed the sentencing to again come before the jury.

And I think that's an important distinction again, not because of being vindictive to the defendant and saying, you can't have your cake and eat it too, and by golly, you asked for it.

Justice Marshall: Well, isn't that true in the case I told you where you were acquitted on first degree, but convicted on second degree?

You can't try to rescind it on first degree, can you?

Mr. Cook: That's correct.

Justice Marshall: So, I mean, it's the same thing here.

Unidentified Justice: Even though the defendant wiped the slate clean, you couldn't try him again.

That's right.

Justice Marshall: Only wipe the slate clean.

Mr. Cook: But, again, I think that assumes a--

Unidentified Justice: Well, there you mandate a distinction between offense and sentencing?

Mr. Cook: --Yes.

Unidentified Justice: That's your only answer?

Mr. Cook: Yes.

Unidentified Justice: Well, that's a pretty good answer because you have authority to support you.

Mr. Cook: I think so; yes.

The other issues presented by the petitioner include the disproportionate and excessiveness, which I'd like to address briefly.

It's argued that on one hand a sentence at the second trial of death would be automatically disproportionate, and the Georgia Supreme Court has so held.

I argue that that is just, I don't feel logical, in that I don't think it was what was anticipated the drafters of this legislation nor by this Court when it approved the comparison of one case with other similar cases.

I think that was authorized or mandated, one, to protect against prejudicial imposing of the death sentence, let us say, only on minorities, or only on poor people; or, to protect against the aberrant jury.

Where we take one case and compare it with itself, though, how do you know which is the right decision?

How do you know which one is aberrant?

That's just, I don't think, logical.

What this has anticipated here is looking at this case in light of other typical, shall I say, kidnap murder cases, or looking at a holdup murder case.

And if in several holdup murder cases or kidnap murder cases similar to this the death penalty was not imposed, then this is the aberrant jury.

Also--

Unidentified Justice: What were the statutory aggravating circumstances?

Mr. Cook: --Be wantonly vile, cruel, inhuman, and the substantial history of serious assaultive criminal convictions.

Unidentified Justice: Not a record of another capital offense?

Mr. Cook: No.

It was a prior kidnapping while armed offense, and a prior armed robbery offense.

And there were other nonassaultive offenses also.

Unidentified Justice: And it's conceded that the aggravating circumstances that will be filed will be identical this time, and that the evidence will be virtually identical, isn't it?

Mr. Cook: It's conceded that the aggravating circumstances are identical.

The State will attempt to present more evidence on this issue than it was allowed to the first time in that we were only allowed to read to the jury the stated offense, as opposed to giving the jury any of the facts of that case which would allow it to make a determination of whether it was a serious assaultive conviction or not.

But that's a trial court decision that we're going to try to change the trial court's mind on.

I don't think disproportionateness applies, and excessiveness is also mentioned.

I don't think that applies either, again for the same reason as I've indicated in the Proffitt decision where a death sentence following a life cannot per se be excessive.

It may be, but you have to look at more than just the one other case.

There's a concern here that this decision would chill the right of the defendant to seek a jury trial in his second case, and of course the petitioner relies on the Jackson decision.

It's our position that this Court has cited that issue in respondent's favor in Chaffin where, although it is concerned about that, it felt that those difficult decisions sometimes have to be made.

And it distinguished Jackson, in that in Jackson it was stated that there was no other purpose or result of that procedure than to chill the defendant's right to a jury trial.

It's our position that there is another purpose or result in this procedure, and that is the stated and approved government, or State interest, in having jury sentencing, and that as long as you have jury sentencing, and as long as that is considered a legitimate State interest, then that is a legitimate State purpose or result.

Also, I would indicate that although Petitioner indicates that the defendant would be absolutely precluded from getting the death penalty if he waives his jury, that is not necessarily so, because he relies on the fact that he would then come under the Pearce provisions and the judge could not give death unless something new had arisen.

But I don't think that we would ever be absolutely sure of that until the moment or sentencing.

I'm not implying that anything new has arisen which would cause the judge in this particular case to give the death penalty but for the Court to find that this chilled his right because he would be absolutely precluded from getting the death penalty by the judge would not be accurate, because there may be those cases where the judge could in fact give the death penalty.

So the decision is not the decision as it was in Jackson.

Petitioner also asked this Court basically to rule that the two aggravating circumstances here are too vague and overbroad.

And the Missouri court has ignored this Court's rulings about the narrowing of the aggravating circumstance that was decided in Godfrey.

And certainly that is one of the circumstances we're using in this case.

I would merely point out that the decision below in the Missouri Supreme Court was handed down before your decision in Godfrey, that the Missouri Supreme Court has not had the opportunity to decide any death penalty cases yet and has not had the opportunity to follow this Court's decision, and so we would ask that this Court give the Missouri Supreme Court the opportunity to constitutionally narrow those aggravating circumstances.

Thank you.

Chief Justice Burger: Anything further, Mr. Sindel?

ORAL ARGUMENT OF RICHARD H. SINDEL, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Unidentified Justice: Suppose, counsel, that you had gone for a new trial on the grounds that through some mistaken, inadvertence one of the 12 jurors that had rendered the verdict was not a citizen of the United States and therefore there was not a duly constituted jury.

Then your claim would be there was no verdict at all, wouldn't you?

Mr. Sindel: Well, Your Honor, I still believe under those circumstances, especially under the circumstances where the State themselves had not complained about the composure of the jury, that the defendant after undergoing the ordeal of trial has a right to rely on that verdict if it is in fact an acquittal.

Regardless of whether or not the jury is properly composed, if it goes to trial--

Unidentified Justice: He doesn't rely very much on the verdict finding him guilty, does he?

Mr. Sindel: --He relies on the verdict of acquittal.

He does not rely on the verdict of guilty, because he needn't under this Court's decisions.

Unidentified Justice: Well, you're using the term acquittal to describe the failure to return a death verdict?

Mr. Sindel: That's correct, Your Honor.

I believe that it is functionally equivalent to acquittal.

I wish if I may respond to several points that were made by my brother.

Unidentified Justice: Of course, that happened in Stroud too.

Mr. Sindel: But Stroud was prior to this Court's decision in Gregg recognizing how unique the death penalty was and did not have the same equivalency to a verdict of acquittal.

Unidentified Justice: Well, then you're getting back to the basic proposition which I think is yours, that death is different.

Mr. Sindel: That is one part of it, and that the procedure used to obtain the sentence of death is different as well.

I think that this is one of the reasons that Di Francesco needs to be overruled and this Court needn't concern itself with overruling the Di Francesco case.

In fact, in oral arguments in that case, Mr. Frey who so ably represented the U.S. Government indicated that this was a question of legal air.

We're not talking here about whether or not there's legal air.

He also indicated that under certain circumstances... in response to Justice Stevens' questions... under certain circumstances, especially the death penalty, there are certain probative problems of procedural fairness that would have to be considered.

So obviously Di Francesco does not apply to this particular case.

Di Francesco did not have the adversarial proceeding that is contained and is mandated by Gardner v. Florida.

Unidentified Justice: Well, it still isn't the case, I gather, Mr. Sindel, that your due process argument as distinguished from your double jeopardy argument is key to the concept that death is unique.

Mr. Sindel: I'd like to correct that point.

If you read the brief... well, excuse me... but if the State would have properly read the brief, he'll see that nowhere do I raise the point that any sentence of death would be vindictive.

That is not the point that we raise.

Unidentified Justice: No, but is it central to your due process argument that death is unique?

Mr. Sindel: I believe so.

I think Beck v. Alabama specifically says that.

They say that because death is unique, there is a higher requirement, and that Beck v. Alabama recognizes, although no other case recognizes, that lesser included offenses in a death case must be submitted, and that is because of the necessity for that higher requirement of due process.

I also believe that in applying death, it says that to apply the death penalty in the Beck case, there must be this elevated procedure that is followed, and there's no question that it has to be followed under the Eighth Amendment prescriptions.

I think that in Di Francesco the argument that was presented is consistent somewhat with Professor Westen's argument in his article that's quoted there, "The Triptych of Double Jeopardy", the idea that there are three things that Double Jeopardy Clause is to protect, the finality of jury verdicts of acquittal, the lawful administration of sentence, and third, the expectation of finality or repose that exists in the defendant after he has undergone the ordeal of trial.

I would suggest that if you use the Wayne technique that Professor Westen suggests, and also we cite to a new article that he has written in our supplemental brief, distinguishing Di Francesco, in which he talked specifically about this case, that argument would hold water, and that Di Francesco needn't be distinguished as well as Stroud and Pearce needn't be overruled to sustain a decision in this particular case that Mr. Bullington need not undergo the ordeal of a trial again.

The prosecutor has indicated--

Unidentified Justice: You mean the death sentencing procedure?

Mr. Sindel: --That's correct.

The prosecutor has indicated that at the second phase of the trial he looks to go into perhaps the facts surrounding the alleged serious assaultive convictions.

These are 13-year-old convictions that the defendant had prior to this trial.

I think that this is somewhat indicative of the problems--

Justice White: If... if we agree with you on the retrial which will go forward, will the jury do the sentencing?

Mr. Sindel: --Yes.

Justice White: And is there more than one--

Mr. Sindel: Yes.

Justice White: --Is there only one sentence it could give if it finds guilty?

Mr. Sindel: Of capital murder; right.

Justice White: So it has no... there's no discretion?

If you win on retrial and if he's found guilty, there can only be one sentence?

Right?

Mr. Sindel: But if there were a mandatory sentence... yes, that's right... if there are mandatory sentences, it would be the same result.

Unidentified Justice: Well, at the first trial they imposed a life sentence but then something about a 50 years?

Mr. Sindel: The provision under the statute is that he is to be sentenced to life without provision for probation and parole for a period of 50 years.

Unidentified Justice: But that's statutory, that wasn't the jury's verdict?

Mr. Sindel: In essence he's buried.

Unidentified Justice: So on retrial, if you win, there will be no need to present to the jury any evidence whatsoever with respect to sentencing?

Mr. Sindel: If I win here there, will be no need.

If I win there there will be no need either.

Unidentified Justice: No, no, but if you win here on retrial?

Mr. Sindel: If he were to be found guilty of capital murder, then there would be only one available sentence.

Unidentified Justice: Well, there wouldn't be a separate sentencing proceeding at all?

Mr. Sindel: There would be no need to because there would be only the one available sentence.

Unidentified Justice: Exactly.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.