South Carolina v. Gathers - Oral Argument

Argument of Donald John Zelenka

Chief Justice Rehnquist: We'll hear argument next in No. 88-305, South Carolina v. Demetrius Gathers.

Mr. Zelenka, you may proceed whenever you're ready.

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

This case presents an opportunity for the Court to revisit the role of the victim in capital sentencing proceedings and prevent further eroding of that role in the criminal justice equation of punishment.

Particularly this case presents the narrow issue of whether the prosecutor's argument during the sentencing phase violates the Eighth Amendment of the United States Constitution when it focuses on the characteristics of the victim, as well as the defendant, rather than only the defendant when the characteristics are directly drawn from the evidence admitted at the trial and obvious to the jury.

In September 1986, Richard Haynes, a 32 year old black male, was brutally beaten, his possessions ransacked.

He was sexually assaulted and murdered by Demetrius Gathers and his accomplices.

The beatings occurred at a city park when Hayres had gone to review religious materials that he had set out on the park bench when he was accosted for the first time in reckless disregard of his rights to free expression in practicing his religion.

In the sentencing phase, the prosecutor commented upon evidence that was admitted to the trial obvious to the jury from the guilt phase the victim was a religious person, that he was a registered voter, and he read from a prayer card in evidence referred to as the Game Guy's Prayer about a person wanting a fair chance in life and giving others that same fair chance.

The Supreme Court of South Carolina, relying on this Court's decision in Booth, asserted that these comments on the personal characteristics of the defendant were not necessary for an understanding of the crime, and therefore violated the Eighth Amendment.

We submit that the Eighth Amendment was not violated by these prosecutor's comments and that the Eighth Amendment allows a jury in any capital punishment situation to have an understanding as to who the victim was and what he was doing at the time he was brutally murdered.

The Eighth Amendment, we submit, does not preclude comments that are directly related.

Yes, sir?

Unknown Speaker: If so, why can't you put in evidence to that effect?

Mr. Zelenka: We submit that to that extent Booth is wrong, that evidence--

Unknown Speaker: Yes, but assuming... assuming Booth is right, if you can't get in evidence, why can you make comments?

Mr. Zelenka: --You certainly should be able--

Unknown Speaker: I mean, I can understand... I can understand half your argument if you just say that Booth is wrong, but... but you're also trying to make the argument that even if Booth is right, you should win in this case.

Right?

Mr. Zelenka: --That's correct.

The evidence--

Unknown Speaker: Well, do you know any other area where we say the... no evidence of that is admissible, and it, indeed, is unconstitutional to admit evidence of that during the trial.

However, the prosecutor may comment upon that during... during his summation.

Do you know of any other area where... where we make that kind of a distinction?

Mr. Zelenka: --I don't think in any area such as this the... excuse me... the elements of what that particular victim were related directly here to the circumstances of the crime that were admissible for that purpose as the res justified--

Unknown Speaker: Well, that's fine, and he could make the argument if it had to do with the circumstance.

But he wasn't making that argument.

He was calling attention to the characteristics of the victim in an effort to get the jury to impose a higher penalty.

Mr. Zelenka: --He was referring--

Unknown Speaker: And if we've said that you can't take into account the characteristics of the victim, then... then that's just wrong, isn't it?

Mr. Zelenka: --Well, the characteristics of the victim that... that Booth was concerned with were characteristics that were not relevant in any way to the circumstances of the crime.

Unknown Speaker: Well, how was the contents of the prayer card relevant to the circumstances of the crime?

Gathers didn't read the prayer card.

Mr. Zelenka: No, we don't submit--

Unknown Speaker: You read the whole prayer card to the jury.

Mr. Zelenka: --He read the whole prayer card to the jury merely--

Unknown Speaker: How... how is that relevant to the circumstances of the crime?

Mr. Zelenka: --It was relevant to the circumstances of the crime that the prayer card was on the scene and was strewn about his body at the time the crime occurred.

Unknown Speaker: Well, how were the contents of the card relevant?

Mr. Zelenka: They were relevant merely to show in the same way any sort of analogy is relevant... to show the characteristics of the event itself, the characteristics of the defendant, as well as the characteristics--

Unknown Speaker: Well, that's your conclusion.

I don't see how it related to the characteristics of the crime.

Mr. Zelenka: --That's the conclusion based upon the interpretation we submit the solicitor was actually trying to place upon the prayer card itself.

Unknown Speaker: Did the evidence show that the defendant had an opportunity to examine the prayer card at the time he was committing these offenses?

Mr. Zelenka: Certainly.

The... the evidence... and it's not contradicted... that when the defendant came upon the scene, Mr. Richard Haynes was changing from some religious clothes at that time and his... the prayer card, as well as a couple of Bibles, were set out on the park bench.

The assault then began to occur, and after Mr. Gathers had knocked the individual unconscious by beating him across the head with a bottle, they then went through his belongings looking for something of value to steal.

Unknown Speaker: The prayer card.

Mr. Zelenka: The prayer card was among those belongings.

Unknown Speaker: Was received in evidence.

Mr. Zelenka: Which was received in evidence in the guilt phase without objection.

It was... and the defendant was not killed at that particular time.

In fact, the... excuse me.

The victim was not killed at that particular time.

The defendant left and then he returned to the scene, accomplished a further assault and--

Unknown Speaker: After he had looked at all these items.

Mr. Zelenka: --After those items had been looked at and scattered about.

That is correct.

Unknown Speaker: Did the... did the Supreme Court of South Carolina say that it was error to consider this evidence or simply error for the prosecutor to comment on it?

Mr. Zelenka: The Supreme Court did not say anything about error in considering the evidence.

What it said was the extensive... excuse me... the extensive comments on the victims character violated Booth v. Maryland because they did not see... read Booth as reading circumstances of the crime to allow such sort of interpretation on--

Unknown Speaker: So, but it didn't suggest that the evidence couldn't be considered.

Mr. Zelenka: --It never suggested that the evidence could not be considered.

That's correct.

It merely interpreted this Court's--

Unknown Speaker: Mr. Zelenka, was there any evidence that the defendant read the prayer card?

Mr. Zelenka: --There was evidence that he looked at the cards, looked at the materials, looking for something to steal.

Unknown Speaker: He was looking at all this stuff when he was looking for valuable material.

Mr. Zelenka: There's no direct testimony the defendant sat and read the card and then made an informed decision that he would then kill the... the victim, Mr. Haynes.

Unknown Speaker: What time of day did this occur?

Mr. Zelenka: It occurred on a... a fall day, and it occurred approximately 10:00 o'clock at night.

The evidence--

Unknown Speaker: Was it a lighted area?

Was it something you could read small print on a prayer card quite readily in the dark?

Mr. Zelenka: --We don't have any information in this--

Unknown Speaker: So, you really don't know whether he read--

Mr. Zelenka: --record that he could read small print--

Unknown Speaker: --the card or not.

Mr. Zelenka: --on the prayer card.

What we do have is testimony presented in the record that they did review these particular materials and they could see various items.

Unknown Speaker: Well, they reviewed them while they were looking for money and jewelry and that sort of stuff.

Mr. Zelenka: Yes, and that the victim--

Unknown Speaker: But you... and you... you would infer from that that they stopped and picked up the prayer card and read it.

It's rather lengthy too, as I remember it... read the whole thing.

Mr. Zelenka: --I wouldn't infer that they read exactly the entirely prayer card, no.

We aren't even asserting that.

We're asserting that the prayer card was merely utilized in this case as an analogy about a person's right to life and right to be free from this sort of attack that he had.

Unknown Speaker: Would the defendant have been able to put in evidence in South Carolina to show that the victim really was not at all the kind of man that's described in the prayer card, but really was... was a fraud and... and did not practice his religion at all?

Mr. Zelenka: That issue was not addressed in this particular case because the defendant never sought to rebut any of that information.

He admitted it.

In fact, during the--

Unknown Speaker: What is your view of the South Carolina law?

Would that be permissible--

Mr. Zelenka: --My view of the South Carolina law on the basis of Gardner v. Florida, the state would have had to have allowed the admission of that testimony if the state was pursuing that same sort of evidence affirmatively.

In the decision of State v. Gaskins, which the defendant has cited--

Unknown Speaker: --Right.

Mr. Zelenka: --that dealt with the situation in which a death row inmate was killed by another inmate who was contracted by the victim's family in the other case to... to have him murdered.

In that case, the South Carolina Supreme Court had a situation that the information was that he had already been sent to death row for the particular murder, and then based upon that information, the culpability of the victim for his particular heinous crimes was clear to the jury.

The situation has never been presented as to whether--

Unknown Speaker: Well, the defendant--

Mr. Zelenka: --xxx is directly rebuttable.

Unknown Speaker: --Can the defendant put in as a mitigating factor the fact that the man he killed was a particularly bad person?

Mr. Zelenka: If that is related to the circumstance of the crime, certainly he could--

Unknown Speaker: Well, no.

Say it isn't... it is unrelated just as... as hers I guess it's not particularly related.

Can he just put in the fact the man... the man he killed was... you know, had been convicted of crimes and one thing and another, and therefore the killing doesn't seem all that bad?

Mr. Zelenka: --One reading of the Gaskins decision would imply that it could not be done, but it was in fact done in Gaskins.

Unknown Speaker: I see.

Mr. Zelenka: It wasn't until the Supreme Court in this particular decision, when it noted accord with... with Gaskins, that they asserted possibly that that information could not be admissible.

However, the particular situation was not raised in this case.

They never sought to challenge that.

In fact, the defense counsel endorsed it in his closing argument.

He utilized religion as a sense of mitigation and utilized this defendant's particular characteristics for religion and for his Christian faith should be something that should cause there to be mitigation in the minds of the jury generally.

In the guilt phase, he argued essentially that perceived mental illness on the part of the victim was something that the jury should consider and acknowledge.

The defense counsel, we submit, also and more fluently presented the situation as to religion as to whether that should be a factor the jury should consider.

And they tried to utilize that in mitigation of this particular case.

Unknown Speaker: Was that after the prosecution's summation?

Mr. Zelenka: Yes, sir.

It was after the prosecution's summation.

Unknown Speaker: To what issue... to what disputed issue in the case was the voter registration card relevant?

Mr. Zelenka: The voter registration card was not relevant to any disputed issue in the case.

It merely presented a glimpse of the individual that was the victim in this particular case.

Unknown Speaker: So, in any... your position is that anytime there's a robbery and a murder and the victim's wallet is involved, you can go through the wallet and... and use that as circumstances of the crime in order to get around the Booth holding?

Mr. Zelenka: No, we don't assert that.

Here the... the voter registration card was another piece of material that was cast aside the victim's body in this particular case.

It's something that the defendant could have known and could have considered at the time before he went back to commit that particular crime.

The voter registration card and the fact that one is a voter does not necessarily stand for anything other than that is a particular trait that this victim had.

Unknown Speaker: Don't you think that's a rather flukish rule of law that... that whether I get the death penalty because... because the jury is... is allowed to consider an argument by the prosecution that the... my victim is a particularly virtuous... particularly virtuous... person, that all depends on what happens to be in the fellow's wallet when I go through it?

Mr. Zelenka: Well, I think--

Unknown Speaker: It's absolutely flukish.

Is... is that really the kind of rule you're asking us to--

Mr. Zelenka: --I--

Unknown Speaker: --If it happens to get into the... into the... into the guilt phase of... of the trial just... just accidentally, then... then it's free game in the... in the argument to the... to the jury on... on penalty.

Mr. Zelenka: --I think in this situation the voter registration card was merely utilized by the prosecution to reflect that Richard Haynes was an individual.

He was a person.

He wasn't just a... a carcass, something that the jury could not ever consider or think about in that particular phase.

The way he--

Unknown Speaker: Well, it doesn't let us do that in other... in other situations.

Mr. Zelenka: --Well, it does let you consider who a victim is we submit in any particular case in the same way as if there are two or three victims in an automobile accident.

The defendant might not know how many people are in the car, but the result of it is he is facing more culpability because of what his action did.

Similarly, in this case, because he was on a park bench in Charleston, South Carolina was a factor the jury could consider because he thought he would be free from any sort of assault at that time.

That is something that the prosecution should allow the jury to consider, and because he was practicing his religion at that time and would not have expected to be accosted in this way, that is something the jury should be allowed to consider in making a decision as to the defendant's particular culpability.

The voter registration card, we submit, was merely an analogy that the prosecution tried to use to focus on that Richard Haynes was a living person.

At that time he had traits and he had qualities.

The defendant in this case, Demetrius Gathers, was not we submit and he was not urged we submit to have received the death penalty because Richard Haynes was a registered voter or because he was a religious person.

He was to receive the death penalty because of what he had done to Richard Haynes who was a human being with particular traits.

Unknown Speaker: This evidence was admitted at the guilt phase.

Is that correct?

Mr. Zelenka: All this evidence was admitted at the guilt phase without objection.

It was introduced then into the penalty phase without objection by the defense attorney, and it wasn't until after the prosecution's closing argument that the defense attorney at that time suggested that the prayer card be removed from the... from going to the jury at that particular time.

We submit the Eighth Amendment does not require a state to neutralize and redact the victim from the trial where properly admitted evidence reveals personal characteristics of the victim.

The evidence, we submit, is relevant to the circumstances of the crime.

It's relevant to the information as to the particular moral culpability of the defendant by reflecting upon the person who he chose to kill on that particular date.

In capital cases the sentencer's attempt must be to make a unique and individualized judgment regarding the crime and regarding the penalty the defendant deserves.

The jury in any capital case is free to consider a myriad of factors to determine whether death is the appropriate punishment.

In this Court's decisions, it's clear that the defendant has virtually free rein to introduce anything in evidence that he considers mitigating to his particular factor.

If the defendant, under this Court's decisions, considered certain information to be relevant, its admissibility should be allowed to be introduced.

The circumstances of the offense, we submit, must include who the victim was and what he was doing at the time the crime occurred.

Here, unlike Booth, the comments did not focus on the reputation of the victim and the effect on his family, but rather on the circumstances of the crime over which the defendant could have had knowledge and control, the apparent selection and choice of a vulnerable victim in September of 1986.

To redact this information from the penalty phase would make Richard Haynes a mere abstraction, we submit, and at most this thumbnail sketch was presented of Richard Haynes gave the jury a quick glimpse of the life the defendant chose to extinguish.

As the defense can humanize the defendant in any case, we submit the prosecution should equally be able to humanize the victim to allow for correct balance in the criminal justice process and the assessment of the offense from the victim's viewpoint, we submit, is germane to any jury's decision as to the appropriateness of the punishment.

In this case concerns that Booth has as to whether this information can be guided were accomplished in this particular setting.

During the prosecution's closing argument, the solicitor advised the jury that the sympathy for the victim is not the way you make a determination as to the appropriateness of the punishment.

You must focus on the characteristics of the defendant and the circumstances of the particular crime.

That is the direction the prosecutor was giving when he made his particular closing argument.

Further, the judge, when he gave his jury charge in this case, said that to make your determination, you should refer to the culpability of the defendant in his action involving the death and criminal sexual conduct of the victim, Richard Haynes.

The trial judge further charged: you should not be swayed by prejudice, by passion, or by other bias or motive in the particular jury charges.

This information gave the jury a guided choice as to the utilization of this information and the determination as to the appropriateness of the penalty in the particular case.

The concerns that Booth had of the effect of the murder on the victim's family, again, were not present in this case.

The articulation of the members of the victim's family in trying to reflect their collateral suffering that they had as a result of the murder in the case was not presented here.

We submit that Booth should not apply to this particular case because--

Unknown Speaker: Well, I take it you... you think Booth shouldn't apply to any characterization of the victim.

Mr. Zelenka: --That's correct.

Unknown Speaker: That... just... just the family.

Mr. Zelenka: The characteristics made by the family and the characteristics of the crime made by the victim's family.

That is correct, that Booth should be very limited to those particular situations.

Unknown Speaker: You think... you think Booth on its face was so limited?

Mr. Zelenka: Booth on its face was probably not so limited based upon certain language that was within Booth.

However, footnote 10 of Booth, we submit, allowed for that sort of limitation to be done.

And we submit that that is an appropriate determination and that these characteristics presented in this case, as presented in other cases that arise out of the facts of the particular murder itself, are subject to a proper, appropriate comment by a prosecutor.

Unknown Speaker: Well, do you think that... do you think then that the... the prosecution should be able to introduce evidence about the character of the victim wholly aside from any... any circumstances of the crime?

Mr. Zelenka: In our argument where we think that Booth is wrong, we think that the characteristics of a victim independent of those directly related to the crime should weigh into a proper sentencing determination by the jury.

That is correct.

Unknown Speaker: But you think... going that far is inconsistent with Booth you think.

Mr. Zelenka: Going that far is probably inconsistent with the first part of Booth.

That's correct.

But the situation in Booth, the factual situation the Court was presented with, is certainly not the situation we're presenting here to the Court.

That evidence went significantly beyond any relevancy that related to the circumstances of the crime or particularly the circumstances of the particular victim in that case.

It put them in a vulnerable position.

In conclusion, we would submit that the Eighth Amendment does not preclude the types of the comments that were related to the circumstances of the crime and the characteristics of the defendant in this particular case.

The prosecutor was merely attempting to humanize the victim and balance the... the sort of mitigating evidence that was presented in this case dealing with the entire background of the defendant, his relationship with his family members, his ability to be a rock to some family members and to be essentially a nonviolent and friendly person that was presented by those particular family members in this particular case.

The vulnerability of the victim was the essence of the argument done this case, that the victim was just a member of society, an individual that had an identity was the attempted argument that the prosecutor was trying to make.

The use of this info conveys our common humanity with those who suffer from this sort of crime and keeps us from thinking of them as faceless abstractions.

We submit that Richard Haynes, who was brutally murdered in 1986, was a real and a unique person.

It is only just that the jury should be permitted to consider that fact in making its determinations.

Unknown Speaker: Thank you, Mr. Zelenka.

Mr. Diggs?

Argument of William Isaac Diggs

Mr. Diggs: Thank you, Mr. Chief Justice.

May it please the Court.

I'd like to draw the Court's attention to page 66... or excuse me... page 17 of the joint appendix concerning the testimony and the lighting.

Justice O'Connor, you asked was it likely that Mr. Gathers read this Game Guy's Prayer and the voter registration card prior to his committing these acts.

The question was:

"What was the lighting like. "

"Was it dark? "

The answer is: "It was dark out there".

So, it's very unlikely, I submit, that this individual stood there and read this card and began to formulate an intent to kill as a result of his knowledge that this man was a Christian and that he was a registered voter.

Also, I'd like to point out that in its presentation, the state has conceded that the voter registration card in this case was not relevant to a sentencing determination because it wasn't relevant to the circumstances of the crime or the characteristics of the defendant.

And as we'll reach a little bit further in the argument, we would submit that the use of a voter registration card to invoke a death sentence from a sentence... a death sentence from a sentencing authority is a constitutionally impermissible basis for imposing a sentence of death.

Unknown Speaker: Do you think a jury is very likely to find a voter registration card critical in deciding whether to impose life or death?

Mr. Diggs: Absolutely not unless they're asked to do that in a closing argument by the solicitor, and that's what I'm submitting is a fair reading--

Unknown Speaker: Well, do... do you think the jury is likely to accede to the solicitor's suggestion that although in... if there... if it weren't for this voter registration card, he shouldn't get the death penalty?

Since the voter registration card is before you, he should.

Mr. Diggs: --I think that a solicitor, a skillful and experienced solicitor, could take a piece of evidence like that and in the nature of the argument that was advanced in this case, that he is a... he is one of us, his life, because of that, is more valuable and--

Unknown Speaker: But--

Mr. Diggs: --therefore based on that a death... a death sentence would be appropriate.

Unknown Speaker: --Well, I can see the solicitor relying on a number of factors, but the idea that it all turns on the voter registration card, which I thought perhaps was your position, makes little sense to me.

Mr. Diggs: Justice Rehnquist, the solicitor argued that these factors... and if you look at this argument in context, the Game Guy's Prayer card... the fact that this man was a Christian and the fact that he was a registered voter who believed in his community and participated in the process, cry out from the grave in support of a sentence of death.

That's the way it was couched, and that's the way that evidence was used in this case.

And what we're saying is unless the state can demonstrably show in some constitutionally permissible way that those factors were relevant to the commission of this crime and in some way reflect on the characteristic of the defendant that it is a... they are constitutionally impermissible bases--

Unknown Speaker: What's your authority for that proposition?

Mr. Diggs: --Well, would cite the Court to the language in Booth v. Maryland itself where this Court cites Zant v. Stephens.

And I would rely on Zant v. Stephens for the proposition that constitutionally protected rights and choices, such as religion and politics, cannot have attached to them aggravating labels by a state in a capital sentencing scheme.

Now, given that proposition, the... the exact reverse would be true with regard to the victim in the case.

And... and I'll explain to you why, because in the United States, you and I all... we all have the right to the... the right to free speech, the right to assemble with other people, and the right to choose or reject a religion.

And it would not be permissible, I would submit to you, to have an individual feel or be told that his life somehow has less value to it because he has or she has rejected a particular religion that the solicitor perhaps has accepted.

If I go into an unsafe area of a community, I want to feel like I am receiving the full protection of the law as well as other people who may be members of other religions separate and apart from the... the one that I happen to profess or reject.

And so, I would submit that religion and politics, constitutionally protected freedom of choice type protections that we have, could never be used as a basis in and of themselves for the imposition of a death sentence.

Unknown Speaker: in this case, I take it the two cards you complain about were received in evidence at the guilt it phase without objection.

Mr. Diggs: That's correct.

Unknown Speaker: And the jury properly looked at them.

Mr. Diggs: That's correct.

Unknown Speaker: The same jury served as the sentencing jury.

Is that right?

Mr. Diggs: That's right.

Unknown Speaker: Do you suppose that it could be said that in view of the evidence of the extreme brutality of this crime and the circumstances of it, that any reference by the prosecutor to these items was harmless?

Mr. Diggs: Justice O'Connor, I don't think that it would be fair to characterize this as merely a reference.

The solicitor, if you look at the joint appendix, took up an entire page reading that Game Guy's Prayer and... and the entire three-quarters of a page--

Unknown Speaker: Well, the jury had read it already, for goodness sakes.

It isn't as though they didn't know what was in it.

It had been in evidence.

They knew what was there.

Mr. Diggs: --It had been in evidence, and he reread the card, the Game Guy's Prayer, in the context of using that card and Mr. Haynes' belief in it in and of itself as a basis for imposing a death sentence in the case.

Now, the evidence could be admitted.

There is certainly evidence in record that not only Mr. Gathers but other people rummaged through this victim's personal belongings.

And it's... it's conceded that the Game Guy's Prayer and the voter registration card was there.

Those items were properly admitted into evidence or were not objected to simply because they were evidence that the individual assailants in this case rummaged through looking for things of value to steal.

I don't--

Unknown Speaker: But they were also admitted at the guilt phase, weren't they?

Mr. Diggs: --That... that was on the question of guilt.

It wasn't--

Unknown Speaker: Weren't they also admitted at the penalty phase?

Mr. Diggs: --Well, it was a wholesale admission of all of the evidence that was admitted at the guilt phase.

Unknown Speaker: So, they were admitted at the penalty--

Mr. Diggs: That's correct.

That's correct.

But I would submit that simply because evidence like that is admitted to show you that perhaps there was an attempted robbery here that the subject matter of that evidence can then be spring-boarded or bootstrapped up to a reason for imposing a death sentence as was done in the closing argument here.

The evidence was properly admitted to show what happened at the... at the criminal assault stage of this case.

But I would submit that the subject matter of that material cannot in and of itself be used as a basis for imposing a death sentence because it is a religious consideration and a political consideration which are constitutionally protected rights.

I think where the state's case in this particular--

Unknown Speaker: --Of course, I take it your position would be the same under Booth if the victim was... was blind or helpless or an infant.

The jury doesn't have... can't consider any of that.

Mr. Diggs: --Of course, it can consider it if those handicaps reflect on he characteristic of the defendant.

Of course.

If it... if it can be demonstrated that the blindness didn't contribute to the... to the offense... for example, suppose you go out and you got a blind child out playing basketball.

Some kids come up and they realize that he can't really see that well, and they see his bicycle parked over.

And so, he can see well enough that he can avoid running into objects, but he can't really identify people.

The individuals kind of sidekick the ball down the hill.

And while the child goes to pick it up, they ride off on his bicycle.

Now, the blindness of the child, lot of course, can be introduced into... at that point.

It becomes relevant to the moral culpability of the defendants.

But if that same child were walking down the street and suddenly hit as a car passed by as a result of a random shooter in that car, the shooter... the... the actor shooting that gun, having no knowledge or indication that that child is blind, shoots him and kills him, then the blindness has nothing to do with the circumstances of the crime or the characteristics of the defendant.

Unknown Speaker: So, If you shoot a gun... so, if you shoot a gun and you hit school children and you shoot a gun and you hit dope dealers, is the penalty the same?

Mr. Diggs: The... the culpability--

Unknown Speaker: Constitutionally.

Mr. Diggs: --The culpability certainly takes into account a child versus an adult, and certainly that would be considered.

Unknown Speaker: It does under Booth in your view.

Why should it do that in your view?

Mr. Diggs: I believe that it is something that reflects on the characteristic of the defendant.

Unknown Speaker: Only If you know, only if you know I understood--

Mr. Diggs: That's right.

That's correct.

Unknown Speaker: --Justice Kennedy's question to be a random shot.

Mr. Diggs: That... okay, I'm sorry.

I misunderstood that.

A random shooting, that's correct.

Unknown Speaker: Random shooting--

Mr. Diggs: Culpability would be the same.

Unknown Speaker: --And I take it your position would be the same if the jury simply mentioned this on its own.

Somebody on the jury said this is a decent man in the community or this was an innocent child.

So long as the shooting is random, that's irrelevant and reversible error under the Constitution.

Mr. Diggs: I'm not sure that I follow that... that question.

Could you--

Unknown Speaker: Suppose the jury on its own considers factors that the Booth case tells us the prosecution cannot mention, i.e., the victim was a decent person in the community--

Mr. Diggs: --Uh-hum.

Unknown Speaker: --or a blind person or an infant or a president... all of those things--

Mr. Diggs: Well--

Unknown Speaker: --would be grounds for reversal I take it if the jury considered them on their own as opposed to the prosecution mentioning them?

Mr. Diggs: --I think that the... you know, that's why we have juries.

That's why we have sentencing authorities to take into account every consideration that's relevant to the circumstances of that crime.

Unknown Speaker: So now... so now we have the position that the jury can consider things that the prosecution can't mention?

Mr. Diggs: Well, I don't... unless it's obvious that... that the jury is going to do that and... and you can cure that by some kind of limiting instruction, I don't see now you could go into the jury room and prevent deliberations on certain aspects of the case.

Unknown Speaker: Well, I'm talking about what the constitutional duty of a jury is.

Suppose you have a well-instructed jury.

The jurors read Booth.

Mr. Diggs: Well, the... I think what you're going to have to do is allow each side to present the evidence that's presentable under the rules of evidence in the case, let that case go to the jury with proper instructions that are applicable to the evidence that has been introduced, and then allow the jury to... to consider the circumstances of this crime and the characteristics of the defendant and make a decision as to what the sentence should be.

Unknown Speaker: Why would you request an instruction from the judge?

Ladies and gentlemen of the jury, necessarily during the... during the guilt phase there's been some evidence admitted that shows some of the characteristics of the defendant.

It shows he was an eight year old and blind.

Mr. Diggs: Characteristics of--

Unknown Speaker: I enjoin you not to consider those characteristics because it has nothing to do with the... for purposes of the guilt phase, for purpose of the penalty, I enjoin you to not consider any of those characteristics.

Mr. Diggs: --Do you mean the characteristics of the victim or the defendant?

Unknown Speaker: Of... of the victim.

Of the victim.

Mr. Diggs: Well, at--

Unknown Speaker: You should get an instruction like that, shouldn't you?

Mr. Diggs: --I don't think that we're talking about at the guilt phase of a proceeding where the question at issue is the guilt or innocence of the accused.

Unknown Speaker: I'm sorry.

At... at the penalty phase you should get an instruction, ladies and gentlemen of the jury, you've learned during the trial incidentally that this was an eight year old, blind boy who happened to be killed, but you should not take that into account for purposes of determining now severely this person should be punished since he didn't know that it was an eight year old, blind boy.

Mr. Diggs: I don't think... when I mentioned limiting instructions, of course, I'm not talking about that situation.

I think that to be... a jury has to be permitted to consider the circumstances of the crime and the characteristics of a defendant, and--

Unknown Speaker: Well, why?

You say we can't tell them to... we can't ask them to consider it, but you... you want to let them violate the law.

Mr. Diggs: --I don't think that if it has... I think it if has nothing to do... I would submit if it has nothing to do with the circumstances of the crime and the characteristics of the... of the defendant, then it has no relevancy to the moral culpability of the defendant.

Unknown Speaker: So, the jury should not consider it and it would be okay to... and probably desirable to instruct the jury not to consider it.

Mr. Diggs: If... if the evidence showed that it did not in some way cast light on the moral culpability of the accused, then that's correct.

Unknown Speaker: xxx.

Well, of course, you assume that moral culpability of the accused has nothing to do with the identity of the victim.

Mr. Diggs: If--

Unknown Speaker: That's your definition of moral culpability.

Mr. Diggs: --If the victim is aware... I mean, if the victim's characteristics are known to the accused and some way can be shown to be an impetus for the murderous act, then it certainly would be proper--

Unknown Speaker: What if in this case the evidence showed that it was broad daylight and the defendant read every word of the voter registration card and the prayer, and then went on and did what he did?

Mr. Diggs: --If you could... if you could fairly infer from that record that the defendant read that card and said I don't like Christians and I don't like voters--

Unknown Speaker: No, no.

He just read it.

He knew fully what he had here in the way of a potential victim, a poor, old fellow who maybe had some rather oddball religious characteristics sitting on the park bench trying to change his clothes.

Mr. Diggs: --Well--

Unknown Speaker: And he reads all that and then does the terrible things that he did to this victim.

Mr. Diggs: --I would... I would answer that by saying if the prosecution can't demonstrate that that knowledge was in some way responsible for the accused's actions--

Unknown Speaker: You don't think that the knowledge goes to the moral culpability of the defendant who knows what he has here in the way of a victim and then cold-bloodedly does the things that this person did to this old man?

Mr. Diggs: --Justice O'Connor, I don't think that his moral culpability would be enhanced because he selected a Christian as opposed to some other individual to murder.

I would submit that's--

Unknown Speaker: We don't know the nature of the religious belief, just some poor, old soul who had these characteristics.

You don't think that relates to the moral culpability of this defendant?

Mr. Diggs: --I would submit that it would not be permitted to be so under the Constitution, under the language that this Court wrote in the Zant v. Stephens case.

Unknown Speaker: What if the defendant goes in and rapes and murders a mother with sleeping children nearby?

You don't think it goes to his moral culpability that he knows the circumstances?

Mr. Diggs: That he knows the circumstances that this... that--

Unknown Speaker: Victim is a mother and is going to leave orphan children when he's finished.

You don't think that goes to his moral--

Mr. Diggs: --Absolutely it does go to it.

Absolutely.

That certainly is circumstance of the crime.

It's something that the defendant knew about when he undertook to engage in this murderous act anyway.

Unknown Speaker: --And precisely so here with this poor, old fellow on the park bench.

Mr. Diggs: Well, he knew that the victim in this case had personal effects that were rummaged through.

We knew that... or Mr. Gathers knew the victim had these items in his possession.

He rummaged through them looking for something to steal, probably money.

And I would submit that none of the items that Mr. Haynes had in his possession at the time reflect really on the moral culpability of this defendant because it can't be shown that they were an impetus for the murder in this case.

Unknown Speaker: But you can't show that the... the mother with her young children... you probably can't show that the young children were an impetus for the murder.

It might be quite the contrary.

Mr. Diggs: Well, I think it goes... in that situation, it clearly goes to moral culpability because he's aware of the fact.

He's aware of obvious ramifications of this act of murder.

Unknown Speaker: So, if this... if this fellow on the park bench had had a small son with him, that could have come in, but the rest couldn't.

Mr. Diggs: That's right.

Absolutely because it would have been obvious to the defendant.

Obviously if you kill a parent that's going to leave a... an orphan child, it goes to the question of culpability.

But that... you know, that's not what we have in this case.

We have a situation where the victim happened to be in possession of certain items and they happen to relate to religion and to politics, a voter registration card.

It... there is an argument in the record that shows that the solicitor utilized those items as a basis is for imposing a sentence of death in the case, and I would submit that's constitutionally impermissible.

That's the position of the Respondent.

Now, the State of South Carolina can't realize... and I think this goes to a lot of the questions that we've... that I have received in the last few minutes.

The State of South Carolina has a common law definition of murder, and it was in effect long before even the Constitution of the United States was adopted here.

So, before we ever even had an Eighth Amendment or a Fourteenth Amendment, South Carolina had that... had adopted that common law definition of murder.

And through this day even, it remains unchanged, and it's the law of the state now.

It was the law of the state at the time Mr. Haynes was killed.

And that definition of murder codified by the general assembly, by the legislature in South Carolina, at Title 16 of our code defines murder as the unlawful killing of another human being with malice aforethought.

Now, If you look... if you research the crime of murder in South Carolina, you find a lot of cases that deal with that element of malice aforethought, but you don't find in that same research any cases that deal with the element of human being.

And I think this is where the state's case here falls down.

Proverbially they can't see the forest for the trees in this case because under South Carolina law now, as it always has, values a human life the same, any human life--

Unknown Speaker: Well, then you would think the South Carolina Supreme Court in this case would have relied on the principle you're talking about rather than relying on our federal constitutional decision in Booth.

Mr. Diggs: --Well, basically the law in South Carolina is that a victim's characteristics are irrelevant to a sentencing consideration because all individuals have that same right of protection in South Carolina not to be murdered unlawfully or not to be killed unlawfully.

And therefore, the Supreme Court of South Carolina, as has the legislature in... in the state as well, declared that personal characteristics of a victim simply aren't relevant in a sentencing proceeding unless they can be shown to be related--

Unknown Speaker: Mr. Diggs, has that always been the law of South Carolina.

I notice this was a 32 year old black male.

And was the death penalty imposed in cases where the defendant and the victim were both black with frequency in South Carolina throughout its history?

Mr. Diggs: --Well, I... I assume that it was.

I'm not... I can't give you a definitive answer.

Unknown Speaker: Perhaps the prosecutor had a special burden here if it wasn't so because he had a black on both... I take it the defendant was black, was he not also?

Mr. Diggs: That's correct.

Unknown Speaker: Yes.

Mr. Diggs: But the position that the Respondent takes in the case is that because human life is valued equally in South Carolina under this statute, and because the status of the law at the time of this case, as reflected in the adoption of the statute back in 1977, if you look at the aggravating circumstances that the general assembly has adopted which permits... the presence of which permits the state to seek a death penalty, they have nothing to do with victims' characteristics because victims aren't valued equally.

We have other aggravating circumstances such as robbery, kidnapping, events of that sort that warrant the state seeking the death penalty.

In fact, under South Carolina law I would submit that the state with the presence of aggravating circumstances is faced with a situation where the death penalty is warranted... is warranted but for the presence of certain mitigating circumstances which the sentencer in the case decides warrants the dispensing of mercy to the accused.

And for that reason, the status of the law... the Supreme Court in Gaskins, State v. Gaskins, held that victim's personal characteristics... the fact that Rudolph Tyner, who himself was a death row inmate in South Carolina, was killed while he resided on death row by Mr. Gaskins and the fact that he had confessed to prior murders was irrelevant when the decision came to be made about whether Mr. Gaskins was to live or to die.

And the sentence Imposed in Gaskins, of course, was... was the death penalty.

Now, in its reply brief, the state argues that Gaskins is really unclear.

We don't really know what the law is in South Carolina because that opinion is not clearly... doesn't clearly state the status of the law.

But I would submit you ultimately have to look at the language in the Gathers' opinion where it cites Gaskins for the proposition that evidence of a victim's bad character is inadmissible in a sentencing phase trial.

I'd move on to the second point that the Respondent would like to make, and that is given the status of the law in South Carolina, there was really no mechanism there in place for us to challenge or rebut the evidence that the solicitor or the points the solicitor urged in his argument to test the accuracy and the reliability of them.

Now, Skipper v. South Carolina is a case that attorneys in South Carolina think is a very important case.

And, of course, the concurring opinion in Skipper talks about the need to be able to confront and test the reliability and the accuracy of information that's being used as a basis for a death sentence.

And in South Carolina... of course, that case relies on Gardner v. Florida.

Unknown Speaker: Well, I assume you wouldn't be able to get in... If the theory on which this were admitted were... were not Just that these were characteristics of the victim, which the jury can take into account, but rather they were characteristics of the victim that the defendant knew of and therefore the Jury can take it into account, I suppose you wouldn't be able to introduce any rebuttal evidence unless you could also show that the defendant knew of that.

For instance, if you had rebuttal evidence that showed that this fellow really wasn't a good Christian... he Just pretended to be a Christian... that wouldn't make any difference so long as the defendant didn't know that he was a phony Christian--

Mr. Diggs: Well, I think under my--

Unknown Speaker: --It gets curiouser and curiouser.

Mr. Diggs: --Under my argument, that's correct.

Unknown Speaker: Yes.

Mr. Diggs: But if the law is that the evidence is admissible anyway regardless of whether it reflects on circumstances of the crime or characteristics of the defendant, then you would obviously have a right and a duty to go out and solicit or dig up the information that shows the contrary and introduce it at... at the sentencing phase in mitigation.

Unless the Court has any further questions, I believe that would be all that I have this morning.

Thank you.

Unknown Speaker: Thank you, Mr. Diggs.

Mr. Zelenka, do you have rebuttal?

Rebuttal of Donald John Zelenka

Mr. Zelenka: I just have a few points on rebuttal, Mr. Chief Justice.

Concerning the... the lighting in the area, would refer the Court to joint appendix page 26 and 27 which is the testimony of Mr. Hardrick on what he saw when he came upon the scene that the defendant... that the victim had a Bible and some paper, that it was just sitting on the bench, and that he had occasion to go through those belongings.

We would submit--

Unknown Speaker: But is there any... is there any... is it clear from the record one way or another that you can see to read the card at that time?

Mr. Zelenka: --It's not clear that you could see to read the card--

Unknown Speaker: Well, you have--

Mr. Zelenka: --xxx time.

Unknown Speaker: --You have some testimony that it was dark.

Mr. Zelenka: There was testimony that it was dark.

There was also testimony that on down the path, accomplices could see what the defendant was doing to the victim.

Unknown Speaker: Well, that may be so, but that... that's a long ways from saying you could read a card.

Mr. Zelenka: That's correct.

And there's also--

Unknown Speaker: Or would... or would recognize a voter's registration card.

Mr. Zelenka: --We'll, he testified that--

Unknown Speaker: I suppose you could recognize money.

Mr. Zelenka: --If you can recognize money, you can probably recognize other items that you took out and you threw around the area we would submit--

Unknown Speaker: Mr. Zelenka, this--

Mr. Zelenka: --Including a Bible and other items.

Unknown Speaker: --This goes to a... a very basic point.

I haven't... I had not understood your briefs to be making the argument that the reason this can be introduced, the fact that he was a good Christian, is only because the defendant knew he was a good Christian.

Is that your point--

Mr. Zelenka: No.

Unknown Speaker: --that you... it isn't.

Mr. Zelenka: No, that's not our point at all.

Unknown Speaker: It's you can show he's a good Christian whether the defendant knew he was a good Christian or not.

Isn't that it?

Mr. Zelenka: That's correct.

The... that's our basic point.

Unknown Speaker: Right.

Mr. Zelenka: It's also our point that the defendant knew--

Unknown Speaker: And is... is... is--

Mr. Zelenka: --that he appeared to be a religious person at the time he committed the acts, that that was some knowledge that he had at the time and during the accomplishment of the acts.

Unknown Speaker: --But that... is that essential for the... for the admissibility in... in... in your view, that the reason it's admissible is because the defendant knew he was a good Christian when he killed him?

Mr. Zelenka: Well, I don't know it the defendant knew he was a--

Unknown Speaker: Or only because the person he killed happened to be a good Christian?

Mr. Zelenka: --There was no evidence in particular that they knew whether he was a Christian or not.

Unknown Speaker: There wasn't.

Mr. Zelenka: Just that he was a religious person with those materials at the park bench at that time.

And that was something the defendant knew before the final blow was struck.

Unknown Speaker: Do we know that they knew that he was a voter?

Mr. Zelenka: we only know that he--

Unknown Speaker: That he had a voter registration card among all that junk.

Mr. Zelenka: --xxx voter registration card was taken out and placed upon--

Unknown Speaker: We don't know that they read it or that they even knew what it was.

Mr. Zelenka: --There is no testimony that by anyone that they particularly read the card, just that it was taken out.

It was on the scene, maliciously threw... thrown beside the body.

Unknown Speaker: So... so, at least as to that argument of the prosecutor, you have to defend the position that it didn't matter whether they knew he was a voter and a good citizen or not.

He was a good citizen, and they should be able to get that in so long as there's evidence that has been admitted at the... at the guilt phase that shows it.

Mr. Zelenka: That it reflected that it was--

Unknown Speaker: Well, but, Mr.--

Mr. Zelenka: --a part of the victim.

Unknown Speaker: --But, Mr, Zelenka, apart from the care that was in his possession, what evidence was there that he was a good Christian?

Mr. Zelenka: There's no evidence in the record apart from--

Unknown Speaker: I mean, how do we know that he subscribed to the... to the tenets of the card in his possession?

I mean, maybe--

--Well, he had a Bible, didn't he?

Mr. Zelenka: --He had a Bible set out on the scene.

He had angels set out on the scene.

He has these religious tracts on the scene, and at the time they came upon him, he was changing from apparently a robe... It was actually a sheet I believe... and--

Unknown Speaker: And the... and the defendant said... at least said that he knew that there... that he had Bible.

He could see that well.

Mr. Zelenka: --That's correct.

He could... in fact, there were two Bibles recovered from the particular--

Unknown Speaker: Yes, but there's a great deal more on the card than just reference to a Bible or a sheet.

Mr. Zelenka: --There's a great deal on the card--

Unknown Speaker: And it took... how long did it take to read that card to the jury?

It took several... It must have taken several minutes, It's a long--

Mr. Zelenka: --No, I don't think it would have taken several minutes, but it would have probably taken between 45 seconds to a minute reading that card.

But, again, that card was already in evidence for the Jury--

Unknown Speaker: --Well, I understand it's in evidence.

I'm not--

Mr. Zelenka: --But what the card stood for we submit is a fair chance in life.

Unknown Speaker: --This is clearly... this is the kind of character he was because he carried this card.

Mr. Zelenka: This is the kind of character that any potential victim is, that they're looking for a fair chance in life and that that fair chance they would also give another individual.

That is essentially a standard--

Unknown Speaker: Counsel--

Mr. Zelenka: --that each of us morally looked to in making any decision.

That is a standard that society looks to to give each individual a fair chance.

That is what the solicitor was doing.

He was utilizing that card for rhetorical comment not saying that the defendant ascribed to each and every part of that card, but it did reflect what an individual was and it did reflect--

Unknown Speaker: --Is there any--

Mr. Zelenka: --that this individual was a person.

Unknown Speaker: --Is there anything in the record to show that defendants could read?

Mr. Zelenka: There's nothing in the record to show that he could read.

There is matters in the record that he did go to school.

Unknown Speaker: Is there anything in the record to say that they did read it?

Mr. Zelenka: That they did read the particular card--

Unknown Speaker: Yes.

Mr. Zelenka: --There's evidence in the record that they looked through the materials at that particular time.

Unknown Speaker: Looking for something to steal is the testimony you called our attention to.

Mr. Zelenka: That's correct, looking for something to steal.

I have no further responses.

Chief Justice Rehnquist: Thank you, Mr. Zelenka.

The case is submitted.