Ohio v. Huertas - Oral Argument

Argument of Jonathan E. Rosenbaum

Chief Justice Rehnquist: We'll hear argument next in No. 89-1944, Ohio v. Ediberto Huertas.

The spectators are admonished the Court remains in session.

There will be no talking in the courtroom.

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

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

This case today is about fair and evenhanded justice for the accuser.

I have three points I would like to briefly make at the beginning of my argument.

Firstly, I submit there is no independent State ground upon which the lower court decision was predicated.

It is obvious from a reading of the opinion that the sole authority relied upon by the Ohio Supreme Court was this Court's holdings in Booth and Gathers.

Secondly, the evidence--

Unknown Speaker: May I just interrupt you?

I hate to do this, but you say from reading the opinion.

I remember Justice Stewart used to lecture me periodically about the importance of the syllabus in Ohio law.

Now, what does the syllabus say the holding is?

Mr. Rosenbaum: --The syllabus in this case is taken directly from the text of the opinion from Section 1(e), and it says expressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant's constitutional right to have the sentencing decision made by the jury and judge.

And they argue to the court that the key word there is constitutional right.

And the only authority, indeed the only constitutional authority cited and relied upon by the Ohio Supreme Court, is Booth and Gathers.

And in fact, the very next sentence--

Unknown Speaker: But do those cases, do Booth or Gathers deal with the issue discussed in the syllabus?

Mr. Rosenbaum: --Absolutely.

They deal with the constitutional ramifications which the Ohio Supreme Court felt to comply... to take out the opinion evidence in this case as well as the evidence of harm caused to the victims in general.

And I submit that the very next line of the opinion from that same section says, after reviewing the arguments presented we find no grounds on which to distinguish Booth and Gathers, and we are thus compelled to follow those cases and vacate the sentence of death.

Unknown Speaker: Let me just be sure... are you now reading from the syllabus or the opinion?

Mr. Rosenbaum: I am reading from the very next line that came from the opinion... the syllabus.

The syllabus was lifted word for word from section 1(e) of the opinion--

Unknown Speaker: Yes, but the references to the cases that you just made is not in the syllabus, is it?

Mr. Rosenbaum: --That's correct.

It's in the very next line.

But the reference--

Unknown Speaker: Next line of the opinion?

Mr. Rosenbaum: --The very next line of the opinion, that is correct.

But the reference to the constitutional right is in the syllabus, and that's what we're talking about today, not opinion evidence, but the constitutional ramifications that took out the opinion evidence in this case and also persuaded the Ohio Supreme Court through, I believe, a misinterpretation of Gathers, to say that it is not relevant to a person's moral guilt when he knowingly causes trauma on known victims prior to the time he made his decision of guilt.

Unknown Speaker: Counsel, on this point, as I recall the opinion of the Ohio Supreme Court, it cited no State authority in support of its holding on this... that you have just quoted from the syllabus.

Mr. Rosenbaum: Mr. Justice Kennedy, it cited no other authority other than Booth and Gathers.

There was no State statutory law, no State evidentiary rulings, and no State case law.

Unknown Speaker: Well, Mr. Rosenbaum, did either Booth or Gathers involve testimony of the witness as to what the penalty should be in the case?

Mr. Rosenbaum: The... Booth had... did not involve testimony--

Unknown Speaker: I thought it was quite different, a different kind of evidence in those cases.

Mr. Rosenbaum: --In the Bronsteins' statement in the victim impact statement that was this Court's basis, or was construed to be inappropriate by this Court, they make reference to, although they did not express the desire to impose the ultimate penalty, they said that the person was not subject to rehabilitation, that justice should be swift, and they clearly implied what their thinking was, although they did not come out and say that.

Unknown Speaker: It seemed to me that the Ohio syllabus here was focusing on a somewhat different point, to whit, the recommendation of the penalty and nothing more.

Mr. Rosenbaum: I think the syllabus clearly points out that what is important here is the constitutional right, and I think the constitutional rights involved, and whether there is a prohibition based upon those rights.

I think that the opinion evidence is a very small part of this case, and it... a reading of the entire opinion, although I concede that in Ohio the syllabus is the case law... illustrates this.

This Court held in Caldwell v. Mississippi that it will not assume that a State court--

Unknown Speaker: Counsel, can you tell me... can you make an inference as to why in preparing the syllabus, whoever prepares it, the court focused on just the opinion as to the ultimate issue, as opposed to the other kinds of Booth-Gathers evidence that really was introduced into this trial?

What--

Mr. Rosenbaum: --I cannot make--

Unknown Speaker: --Can we speculate on why that might be?

Mr. Rosenbaum: --I am reluctant to speculate, but I can respond to your question by saying in Chief Justice Moyer's concurring opinion he made it very clear that this ruling came from their concerns about Booth and Gathers, and that they asked... that he felt this was a very confusing case, and he asked for this Court to review it and revisit it.

And I think that gives us some insight to tell you that this case is more... is about far more than opinion testimony.

And a reading of the entire case shows that as well.

This Court held--

Unknown Speaker: As a matter of State law in Ohio is opinion evidence on the penalty in a criminal case admissible as a matter of Ohio law?

Mr. Rosenbaum: --I... this is a point that has been raised by the respondent, and they cite the case of State v. White.

And I submit to you that the flaw in their argument is this.

Unknown Speaker: Well, you can just answer the question.

Mr. Rosenbaum: I will, thank you.

The answer is it does in the guilt phase, and that is what White deals with.

White was a 1968 case, and it was written, obviously, way before Ohio's bifurcated capital death penalty scheme.

Unknown Speaker: In determining whether a defendant is guilty or innocent in a criminal case in Ohio, lay witness opinion as to the penalty is considered relevant?

Mr. Rosenbaum: Is not considered relevant.

Unknown Speaker: Not considered relevant.

Mr. Rosenbaum: It is not considered relevant, and that... in the guilt phase.

White deals with the guilt phase, and the purpose of bifurcating a capital scheme is obviously there are types of law or types of evidence that will not be appropriate and will be prejudicial--

Unknown Speaker: Are there Ohio cases holding that lay witness opinion evidence is relevant in the penalty phase of a capital case?

Mr. Rosenbaum: --No.

Unknown Speaker: Thank you.

Mr. Rosenbaum: There are not.

Unknown Speaker: Mr. Rosenbaum, when the Supreme Court of Ohio decided this case and said that the testimony of the lay witness was not admissible, did it rely on any Ohio cases to say that or did it rely on the United States Constitution?

Mr. Rosenbaum: It relied solely upon this Court's interpretations of the Eighth Amendment based on Booth and Gathers.

And I argue to this Court, because of that and this Court's holding in Caldwell v. Mississippi, that this Court should not assume that a State court decision rests on adequate independent State grounds when the State court decision fairly appears to rest primarily on Federal law or even to be interwoven with Federal law.

In this case the Ohio Supreme Court expressly relied primarily on Booth and Gathers to reach its decision, which is encapsulated in the syllabus.

I argue to you--

Unknown Speaker: I think one can read the discussion on page 21 of the cert. petition as indicating they thought that Booth and Gathers were so far different that even the dissenting justices' opinions in Booth and Gathers would not have applied to this case.

That's what I read them as saying in so many words.

Mr. Rosenbaum: --You read the majority of the Ohio opinion as saying that?

Unknown Speaker: Yes, at page 21.

Mr. Rosenbaum: I... I think that this Court has wrongfully applied Booth and Gathers on page 21.

I mean, of the... the Ohio Supreme Court has wrongfully applied this Court's holding in Gathers on that page in this case.

Unknown Speaker: But, as I say, they're talking about the position of the dissenters in Booth and Gathers in there.

Mr. Rosenbaum: Correct.

Unknown Speaker: But we could perfectly well affirm without doing anything one way or the other to Booth and Gathers, couldn't we?

Mr. Rosenbaum: You could affirm the Ohio Supreme Court decision?

Unknown Speaker: Yes.

Mr. Rosenbaum: Absolutely.

And you could also reverse the Ohio Supreme Court decision--

Unknown Speaker: Could we reverse without--

Mr. Rosenbaum: --without affecting Booth or Gathers.

And I argue to you that this is because the Ohio Supreme Court has misinterpreted this Court's holding in Gathers when it ruled that it is no more heinous to commit a crime when you know that you are going to leave traumatized victims, that you are aware of, either at the time you made your decision to kill or prior to making that decision to kill.

So this Court could leave Gathers intact and reverse the Ohio Supreme Court and reinstate the death penalty.

I would like to argue today that Booth is a departure from this Court's traditional jurisprudence which is... made in capital litigation cases, which made an attempt to channel the discretion of the jury and evidence that it is to get.

And to arrive at this it has sacrificed evidence that is relevant and necessary, and that is victim impact evidence because, as this Court held in Booth, it may create an impermissible risk of the death penalty being arbitrarily imposed.

I argue to you that this presupposes that jurors cannot ever be channeled or deal with victim impact testimony in a rational way, nor can trial... nor can trial courts regulate victim impact testimony.

Unknown Speaker: --Do you think that if Booth and Gathers were overruled we might expect that the kind of testimony that was in this transcript would be fairly typical in death penalty sentencing proceedings in which the father of the victim recommends the death penalty?

Mr. Rosenbaum: No.

And I'm going... I'm asking this Court to overrule Booth and Gathers and permit only objective, factual, easily rebuttable, readily anticipatible victim impact testimony.

The opinion evidence in this case--

Unknown Speaker: So you think that some of the testimony here went beyond--

Mr. Rosenbaum: --Oh, absolutely.

Unknown Speaker: --what's appropriate?

Mr. Rosenbaum: The opinion evidence in this case came in over the objection of the State of Ohio.

The defense asked the defendant's mother, in a question that presupposed the answer, or implied it, didn't you already tell myself and the probation officer that you don't want the death penalty imposed?

She dodged that question by saying I leave it up to the courts and jury.

He then pinned her down, over the State's objection, to say well, can't you forgive, as a Christian?

And she said I can.

Unknown Speaker: Well, what about the father's testimony?

The State introduced that.

Mr. Rosenbaum: The State... absolutely.

The State then, faced with the implication in a predominantly Christian community that this woman, the mother of the deceased, is able to forgive this man for killing her son, over my objection, which I think is irrelevant and inappropriate, tried to counter and neutralize that, and I called the father and asked him the same question.

And I submit to you that this dichotomy and this unfairness is the result of the regime of Booth and illustrates the handicap that has been placed upon the prosecution.

Unknown Speaker: Well, I don't, I don't see why the same thing wouldn't have occurred if Booth and Gathers were somehow off the books.

Mr. Rosenbaum: Well, that's... it's possible.

That's correct.

Unknown Speaker: But you... but you indicate that it's inappropriate.

Mr. Rosenbaum: I think it is inappropriate.

It came in over my objection, and I am asking this Court, if it doesn't see fit to overrule Booth, to modify it and provide that both sides can bring in objective and limited victim impact testimony so that there will be an equal balance between the State and the defense.

And I argue to you that the result of this prohibition that came through the regime of Booth is that the penalty phase is now the mitigation phase.

We solely focus upon the defendant.

Personal responsibility is no longer a function of the harm caused.

If that is the case, just retribution can no longer be a legitimate concern in our capital sentencing scheme.

And I say that to you because if a jury is not aware of the actual and complete harm caused through the admission of objective victim impact testimony on both sides, it cannot express the community's outrage, conscience, or contemporary values over a capital case.

Unknown Speaker: Well, I'm not sure how, if you thought the mother's testimony was appropriate... was inappropriate, that the trial was made all that much better by introducing further inappropriate testimony by the father on the same subject.

Mr. Rosenbaum: In looking back on that case, or that decision, I don't know if I would have made it.

But I was in the middle of a trial, faced with the devastating impact of testimony, prior to the Booth decision, that a woman has now forgiven the murderer of her son, as a Christian, when I have a predominantly if not entirely Christian jury.

Now the State sought to neutralize that, and maybe in hindsight that wasn't the best thing to do.

But I think a modification or reversal of Booth will actually prohibit this in the future, because the penalty phase will be the penalty phase and not the mitigation phase, when the defendant can offer anything that he so desires and the State cannot rebut that.

Unknown Speaker: Was this case tried in Elyria?

Mr. Rosenbaum: Yes, it was.

Unknown Speaker: xxx suggest we should affirm?

Mr. Rosenbaum: I am making three ultimate--

Unknown Speaker: Even if we do to Booth what you want us to do, this sort of evidence wouldn't get in.

Mr. Rosenbaum: --This... I argue to you that the evidence in this... the opinion evidence in this case, when the State went on to neutralize what the defendant did, is either harmless error or an invited error, and this case is not about this.

Unknown Speaker: It's a rather strange argument to say that the existence of Booth and Gathers invites testimony of this sort.

I just can't follow that.

Mr. Rosenbaum: The existence of Booth and Gathers has created a one-sided regime, and this case illustrates that.

And in an effort to let the... or offenders, prove their mitigation, they can put in anything they want and the State cannot.

An example of that is this case.

The defendant calls his entire family to the stand, or enough of it to testify about the rest of the family, and they testify about their mutual love relationship and the benefits that the respondent has caused them.

What they are saying is his death will impact upon our lives.

But the State cannot counter that by putting on the actual impact of the murder that the respondent caused.

And this one-sided thing, I think, goes back to the point that we have taken retribution out of the term "professional responsibility".

This Court has acknowledged, and the entire history of capital jurisprudence in this country acknowledges that communities should express the public outrage, concern, and contemporary values, and that retribution is a valid and constitutional consideration in a capital sentencing.

Unknown Speaker: But all you're really asking, as I understand it, is that we adopt a rule, a kind of opening-the-door rule, so that if the... whatever kind of evidence on mitigation the defense puts in, you should be allowed to counter with like evidence.

Isn't that all you're saying?

Mr. Rosenbaum: I am asking first and foremost for you to overrule Booth and put the balance back in this, to make the penalty phase--

Unknown Speaker: But all we have to do to get what you want in this case is a kind of opening-the-door rule, isn't it?

Mr. Rosenbaum: --You could modify Booth, or even to get what I really need, I guess, in this case is you could just rule that the Ohio Supreme Court has misinterpreted Gathers, and because the respondent knew of the trauma he was going to cause prior to his decision to kill, that was relevant to his moral guilt, much less personal responsibility, which is the other issue I am arguing, and therefore the Ohio Supreme Court erred.

Unknown Speaker: But that doesn't reach the opinion on the ultimate issue, testimony by the father.

Mr. Rosenbaum: Well, I think it does, because that... that opinion is based upon the constitutional restraints that the Ohio Supreme Court felt it was operating under as a result of Booth and Gathers.

This opinion is far broader--

Unknown Speaker: I don't understand.

I... is what you're saying that, without Booth and Gathers, the Ohio Supreme Court could have found it, what, harmless error or invited error, but because of Booth and Gathers it was precluded from doing that?

Mr. Rosenbaum: --Exactly.

Unknown Speaker: Is that the point?

Mr. Rosenbaum: Exactly.

That's how they interpreted that.

I want to follow up on my point that as a result of juries' not being able to express the community's conscience, contemporary values, and outrage, that our system of justice... the public may lose faith in our system of justice because the public will be aware of the actual harm caused, but because of Booth the sentencing jury will not be, and if they are they can't use it.

As a result of that, punishment will not fit the crime.

The jury cannot express the community's outrage because the jury does not know what the community knows.

And we have taken harm out of the personal responsibility equation.

I also argue to this Court that the Eighth Amendment applies to all criminal cases, yet only in capital cases does it preclude victim impact testimony.

This is not required by the text of the Constitution.

Our history is rich in examples where offenders have been punished for the harm they caused, whether they intended it or not.

The Fiola case dealing with Federal officers, Roberts v. Louisiana, and presidential assassination statutes... there is a Federal one which authorizes the death penalty as well as aggravating circumstances for that type of killing.

These are inconsistent with Booth and produce anomalous results.

And despite this history, Booth precludes jurors from knowing the actual harm caused, and it does so at a time when modern thought requires that victims be included in our system of justice so that they can be addressed and redressed, not excluded.

I argue to you that the per se exclusion of Booth is over broad, and that the harm that it seeks to cause, that risk can be dealt with by the traditional methods normally associated with our everyday trials in our criminal justice system.

These safeguards include discretion of the trial judge, the bifurcated nature of our capital penalty litigation scheme, and mandatory review at all levels.

I am asking you to overrule Booth and permit the inclusion of reliable and objective victim impact evidence on both sides.

Unknown Speaker: Mr. Rosenbaum, what do we know now that we didn't know when we decided Booth that would justify us in overruling it?

Mr. Rosenbaum: I think what we know now is that Booth has created confusion, that Booth has taken the retribution aspect out of capital sentencing, and that it... basically, it is wrong.

And the lower courts and the State courts are having a hard time applying it.

There are anomalous results, there are inconsistent results based upon the statutes and specifications.

If you consider assassination of the President, am I precluded now from offering evidence that the victim of this crime is the President of the United States?

Booth is inconsistent with that, and I know that you have argued that in your dissenting opinions in both Booth and... and Gathers.

I am asking you to overrule Booth and include objective victim impact evidence, not opinion.

If this Court will not do that, I am asking you to modify it so the State is on an even keel, so that the State can put on testimony concerning the actual impact felt and caused by the murder, as opposed to the potential impact that is going to fall to the defendant's family if he is executed.

And if this Court does not see fit to do that, I then, as my final argument, ask you to overrule State v. Huertas and reinstate the death penalty because the known harm caused to a victim and his family that you are aware of prior to your decision to kill is relevant to your moral guilt and says something about your blameworthiness, and thus should be considered.

Unknown Speaker: Mr.... you go ahead.

What protections would there be besides your... your concession that opinion evidence of relatives should not be allowed in as to what the penalty ought to be?

Don't you think it's rather unfair to the defendant to put on a weeping widow or, you know, a bereaved mother, tears streaming down her face in front of the jury?

What protections are there against that sort of--

Mr. Rosenbaum: That... the protections are twofold, or they are, one, these are the things that our trial courts deal with in everyday life.

You know, there is little difference if I put the widow... or the grieving mother as it was in this case, on the stand in the guilt phase because she actually witnessed the threats that this man made that exemplify or demonstrate his prior calculation and design.

These are things that we have to deal with on an everyday basis: prejudicial evidence and weighing the probative value of that evidence.

We have consistently called upon our trial courts to make the proper judgments in these manners in every case, in every way except Booth.

For some reason we have decided that the systems that we have... the history of our country has built into the criminal justice system are no longer adequate to deal with grief.

And the grief of a mother or the grief of a widow is something that every juror realizes.

Unknown Speaker: --Is Booth and Gathers... are Booth and Gathers then just a shorthand way for us to ensure that no inflammatory testimony is being introduced at the trial?

Is that what Booth and Gathers are really directed to?

Mr. Rosenbaum: I think Booth... that is... I have no quarrel with your statement except other than shorthand.

I think it is, it is longhand and it is too long.

And that this... these are... this is evidence that is needed by the State to prove certain elements of the case that are relevant to retribution so that the jury can actually speak to the community's conscience, outrage, and contemporary values in the imposition--

Unknown Speaker: It's an overly inclusive and overly constrictive rule?

Mr. Rosenbaum: --That is exactly my point.

It is over broad.

The safeguards which we have trusted in every other area of criminal justice... our criminal justice system... with regarding prejudicial versus probative value of any piece of evidence, whether it be victim testimony, whether it be the photographs of a murder victim at the scene.

These safeguards have always served us well, but this Court, because it was afraid that there may be an impermissible risk of an arbitrarily imposed death penalty, I think has overreacted and has handicapped the State.

Unknown Speaker: May I ask you this, Mr. Rosenbaum, about the need to overrule Booth because of the harm it has done in excluding this victim impact evidence?

The Ohio Supreme Court on page 13 points out that in State against Post, which was also a 1987 case, they noted that the admission of victim impact evidence at capital trials was not expressly permitted by the Ohio statute.

I drew the inference, perhaps erroneously, and this is why I wanted to ask you as an Ohio lawyer, that prior to Post and prior to Booth there probably were not any Ohio cases approving the use of victim impact evidence in capital trials?

Mr. Rosenbaum: That's correct.

Unknown Speaker: So that really all Booth did, as far as Ohio law was concerned, was maintain the status quo?

Mr. Rosenbaum: No, I disagree.

Unknown Speaker: Well, how... in what respect did it change it?

Mr. Rosenbaum: Because the legislature has refused to specifically include, make it mandatory that victim impact evidence--

Unknown Speaker: Right.

Mr. Rosenbaum: --be included.

The legislative history, as documented by the... refiled by the National Association of Criminal Defense Lawyers, documents that the legislature refused to make it mandatory inclusion.

That is a vast--

Unknown Speaker: And I gather there are no Ohio cases permitting it either?

Mr. Rosenbaum: --There is no Ohio case... well, with the exception of... the issue really has not been addressed.

And the reason is, and as Booth says--

Unknown Speaker: That's my very point.

--and it quotes Ohio Revised Code section 2929.03(d)(1), which says it does not expressly authorize it, but there has, the legislature has refused to speak, and it has not been excluded in any way.

And as a result of the Booth regime it is not going to come in in Ohio.

Did the legislature refuse to speak pre-Booth or post-Booth?

When, when was that?

Mr. Rosenbaum: --It was pre-Booth.

Unknown Speaker: Given the fact that there is an Ohio legislation authorizing victim impact statements in these cases, what stated legislative criterion for imposition of the death penalty would this... would the evidence be addressed to if it were admissible as you want it to be?

Mr. Rosenbaum: Well, first of all, the Ohio statutory scheme as it exists does not make... does not make it mandatory that it be included.

I don't know if you understood that.

The victim impact legislation in Ohio clearly makes it mandatory in all other areas but capital litigation.

And so the legislature has not spoken in any way, and I don't think that the legislature can speak now in light of the Ohio Supreme Court's constitutional ruling based on Booth and Gathers.

However, I think what should be included is, as I have been arguing, is that victims should be free to come to court and express objective thoughts about their losses.

Not that I love you, I miss you, that kind of stuff, but truly objective thoughts that can be anticipated and rebutted.

And I would like to reserve the balance of my time.

Unknown Speaker: May I just ask you further question?

Is there any extant Ohio legislation right now to which this kind of evidence would properly be addressed?

Mr. Rosenbaum: The only statute that may apply to this type of situation is Ohio Revised Code section 2929.03(d)(1), which makes it discretionary.

In other words, if the defendant requests a presentence report and that presentence report, if requested, must go to the jury, traditionally presentence reports in Ohio include victim impact-type testimony.

Unknown Speaker: Is there, is there a statute defining aggravating circumstances?

Mr. Rosenbaum: Yes.

Unknown Speaker: And do... are there categories within that statute to which the testimony you want to come in would properly be addressed--

Mr. Rosenbaum: No.

Unknown Speaker: --if... under the present law?

Mr. Rosenbaum: There are categories that pertain to like the killing of a peace officer, presidential assassination, Governor assassination, but nothing else.

Thank you.

Unknown Speaker: Very well, Mr. Rosenbaum.

Ms. Bour-Stokes, we'll hear from you.

Argument of Joann Bour-Stokes

Mr. Bour-Stokes: Mr. Chief Justice, and may it please the Court:

I would like to begin by stating this morning that the Ohio Supreme Court did base its holding on the improper opinion testimony of the father in this case, and it seems that my opponent this morning has conceded that there was error in allowing the father's testimony.

To support my position I would first like to start by the proposition of Ohio law that what is stated in the syllabus is the law of the case, and any conclusions in the opinion that are not carried forward into the syllabus do not constitute the law of the case.

So if one looks at the syllabus in this case, it only concerns the father's testimony.

Unknown Speaker: That's a very strange rule.

I don't think it's replicated anywhere else, is it?

Mr. Bour-Stokes: I don't think so, Your Honor.

It is a very unique rule to Ohio, and the way the Ohio Supreme Court interprets its own opinions.

Unknown Speaker: As Justice Stevens said, Justice Stewart used to lecture us about Ohio syllabi.

Mr. Bour-Stokes: And it's very important in this case.

I would like to also respond to--

Unknown Speaker: Well, you have to... you have to... the word "constitutional" is in the syllabus, isn't it?

Mr. Bour-Stokes: --Yes, Your Honor, and I would like to respond to the fact that the constitutional right referred to in the syllabus cannot be a Federal constitutional right, first because it talks about the constitutional right to a jury and judge decision.

This Court has recognized in Spaziano v. Florida that there is no Federal constitutional right to a jury decision in capital case.

And the Ohio Supreme Court had recognized that long before this case.

Unknown Speaker: You're saying the syllabus couldn't be wrong?

Mr. Bour-Stokes: I'm... no, no, I don't believe a syllabus is wrong.

It comports entirely with--

Unknown Speaker: Well, but it could be wrong.

I mean, the mere fact that, that if it referred to a Federal constitutional right it was in error, I mean, we reverse State supreme courts now and then.

Not only their syllabus but their entire opinion may be wrong.

It... it's thinkable, at least, isn't it?

Mr. Bour-Stokes: --I think what the Ohio Supreme Court decided in this case is entirely correct, that the opinion testimony was improper in this case.

Unknown Speaker: Well, if you're looking around for some evidence of what they meant by constitutional right, I suppose it's not against the Ohio rules to look at their opinion, is it?

Mr. Bour-Stokes: No... it's not, Your Honor.

And if you look at the opinion--

Unknown Speaker: Well, look at it.

They never... they don't... they've never cited any, any constitutional case from Ohio.

Mr. Bour-Stokes: --That is correct, Your Honor.

Unknown Speaker: The only constitutional law they discuss is Federal.

Mr. Bour-Stokes: And what the court did was, in--

Unknown Speaker: Isn't that right?

Mr. Bour-Stokes: --It did... yes, correct, Your Honor.

And it discussed Booth and Gathers in the context of Mrs. Harris' testimony, and her improper testimony.

Unknown Speaker: But Ms.... may I interrupt you, Ms. Bour-Stokes?

Mr. Bour-Stokes: Um-hum.

Unknown Speaker: Do they discuss any Federal constitutional decision discussing the constitutional right to having the sentencing decision made by the jury?

Mr. Bour-Stokes: No, Your Honor.

The only Federal Constitution decisions they cite are Booth and Gathers.

And the principles from Booth and Gathers cannot be--

Unknown Speaker: Which have nothing to do with that constitutional right.

Mr. Bour-Stokes: --Right.

The constitutional rights from Booth and Gathers cannot be the constitutional rights that control the Ohio Supreme Court opinion in this case, because those were the Eighth Amendment principles this Court enunciated in Booth and Gathers about the distortion of evidence and the emotional impact of the crime on the family.

Unknown Speaker: Well, is there an Ohio constitutional provision that gives... that requires that the sentencing decision be made by the judge and the jury?

Mr. Bour-Stokes: There is no specific provision, Your Honor.

What the Ohio Supreme Court did early on in its jurisprudence was recognize that there is a constitutional right to a jury trial in Ohio in a State case, under the Sixth--

Unknown Speaker: Under the Ohio constitution?

Mr. Bour-Stokes: --Yes, Your Honor.

Under the specific provision that you're entitled to an impartial trial by jury.

And the--

Unknown Speaker: Now wait, is this an Ohio constitutional provision?

Mr. Bour-Stokes: --Yes, Your Honor, it is an Ohio constitutional provision.

What the Ohio Supreme Court also did was recognize there is also a constitutional right to be tried by a jury in a capital case in Ohio.

And those two provisions combined are what controls in this case.

Unknown Speaker: And what are... do you cite those decisions in your brief?

Mr. Bour-Stokes: I cited State v. Jenkins, Your Honor, which is the important case, and it is cited in my brief in a footnote, and is in the table of authorities.

Unknown Speaker: And just to be clear, that rests on Ohio constitutional law?

Mr. Bour-Stokes: What it... it interprets an Ohio statutory provision about the right to jury trial.

And I infer from that decision that the Ohio Supreme Court felt that there was a State constitutional right to a jury trial.

And--

Unknown Speaker: Well, do they... do they cite the State constitution?

Mr. Bour-Stokes: --No, Your Honor, but what happens then later on is the Ohio Supreme Court recognizes that there is no Federal constitutional right to a jury trial, in a case called State v. Rogers, and since that time the Ohio Supreme Court has consistently recognized that there is a constitutional right to a jury trial in Ohio.

Unknown Speaker: Ms. Bour-Stokes, did the Supreme Court of Ohio in its opinion in this case cite State against Jenkins?

Mr. Bour-Stokes: It could have cited State against Jenkins--

Unknown Speaker: Did it... I said did it cite?

Mr. Bour-Stokes: --Oh, no, I'm sorry, Your Honor.

It did not cite State v. Jenkins.

The only Ohio principles that the court cited was, early in its discussion, it cited State v. Post dealing with the victim impact evidence.

Unknown Speaker: Let me ask you one more question, if I may.

In a case decided some years ago by this Court, Perkins v. Bengay Consolidated Mining Co., written by Justice Burton who was another Ohioan, of course, and interested in the Ohio syllabus rule.

I think he says that the opinion of the supreme court may be consulted if there is doubt about what the syllabus means.

Is that still an Ohio rule?

Mr. Bour-Stokes: Yes, it is, Your Honor.

And what's important to support my argument today is if you look at the way the Ohio Supreme Court opinion was structured in this case, it set forth clearly what the Court was going to address.

The first four arguments dealt with Mrs. Harris' testimony, and then the court went on to state that the father's opinion testimony in this case went beyond anything considered by this Court in Booth and Gathers.

So the Court was drawing a distinction between what this Court set out in Booth and Gathers and the fact that the father's opinion testimony in this case was improper.

Unknown Speaker: But the point is simply whether... it isn't whether it goes beyond what was approved in Booth and Gathers.

It certainly does, in the view of the Ohio Supreme Court.

But let me ask you this.

The syllabus is taken verbatim from a sentence in the opinion.

Mr. Bour-Stokes: Yes, it is, Your Honor.

Unknown Speaker: And that sentence is followed by the following, as if in explanation of why they had said that.

"We... after reviewing the arguments presented, we find no grounds on which to distinguish Booth and Gathers, and we are thus compelled to follow those cases, vacate the sentence of death, and remand for imposition of a life sentence in accord with Penix, supra. "

We are compelled by Booth and Gathers to decide this case the way we decided is what they're saying.

Now, doesn't that explain what the syllabus means?

Mr. Bour-Stokes: No, it does not, Your--

Unknown Speaker: When it refers to a constitutional determination?

Mr. Bour-Stokes: --No, it does not, Your Honor, first of all because, as I have explained, the constitutional principles from Booth and Gathers do not concern the constitutional right to have your capital sentencing decision made by a jury or by a judge.

Second of--

Unknown Speaker: I may agree with that.

But did the Ohio Supreme Court agree with it?

That may just be a basis for reversing them.

The point is not whether it's true, but what the Ohio Supreme Court thought it was saying.

Mr. Bour-Stokes: --Second, if there is a conclusion in the opinion that is not carried forward to the syllabus in Ohio, that does not constitute the law of the case, and that's the Ohio Supreme Court's reading of its own structure of its opinions.

Third, this--

Unknown Speaker: What was the second?

I'm sorry.

Mr. Bour-Stokes: --If there is a conclusion in the text of the opinion that is not carried forth into the syllabus, it does not constitute the law of the case.

Unknown Speaker: Well, I don't read that as a separate conclusion.

I read that as an explanation of the prior sentence.

"We are thus compelled to follow those cases. "

Mr. Bour-Stokes: I read as a very... I disagree, Your Honor.

I read as a very separate conclusion because the court is referring to all of the arguments advanced in this case dealing with Mr. and Mrs. Harris' testimony, and this concluding paragraph comes at the conclusion of all of those sections.

And the reference to Booth and Gathers specifically refers to their analysis of Mrs. Harris' testimony.

I would also like to point out that the Ohio Supreme Court has concluded as a matter of State law that the father's opinion testimony in this case was not relevant to any of the decisions the jury had to make in this case.

It provided no factual information, and it impeded on the jury's decision in this case to determine what the appropriate sentence was.

Unknown Speaker: Well, it may have been irrelevant in the abstract under some criterion, but if Booth and Gathers didn't necessarily keep it out, and if it was in fact addressed to testimony of a like character from the other side, the Ohio Supreme Court might very well have allowed it either on an open door theory or as harmless evidence, had it not believed that Booth and Gathers required a different result.

Isn't that true?

Mr. Bour-Stokes: No, Your Honor.

First of all I would like to dispel the notion that this was in any way invited error by defense counsel.

The chronology of events is very important.

The father's--

Unknown Speaker: Well, let me... before you do that, let me just go back to my question on one point.

If that is the way the Ohio Supreme Court had interpreted the record, but for its belief that Booth and Gathers required this result, the Ohio Supreme Court might have come out the other way.

Isn't that true?

Mr. Bour-Stokes: --No, Your Honor.

I think if this--

Unknown Speaker: You mean on no conceivable understanding of the facts could Ohio have come out the other way if they had not believed that Booth and Gathers required this result?

Mr. Bour-Stokes: --No, Your Honor, I think the Ohio Supreme Court's analysis was very distinct from that, and even if this--

Unknown Speaker: You certainly don't give up ground.

[Laughter]

Mr. Bour-Stokes: --And even if this Court were to overrule Booth and Gathers, the result in this case would not change.

The father's opinion testimony is still improper under Ohio law.

And I would like to go on to address the invited error doctrine raised by--

Unknown Speaker: Ms. Bour-Stokes, you say the father's opinion testimony is improper under Ohio law.

In its opinion in this case, did the Supreme Court of Ohio cite an Ohio case for that proposition?

Mr. Bour-Stokes: --No, it did not, Your Honor.

It did not cite an Ohio case.

Unknown Speaker: Isn't that rather strange?

Mr. Bour-Stokes: I wouldn't say it's strange.

It's unique in this case that the Ohio Supreme Court did not cite--

Unknown Speaker: Well, if it's unique, surely that's a fortiori strange, isn't it?

[Laughter]

Mr. Bour-Stokes: --I will be willing to admit that it could be very strange in this case, Your Honor, that they did not cite an Ohio Supreme Court opinion.

But that does not necessary lead to the conclusion then that the decision was not based upon State law grounds, because before the decision in this case was rendered the Ohio Supreme Court had already found that opinion testimony in the ultimate issue that's not helpful to the trier of fact is not admissible in a case, and this... and this decision comports with that ruling.

In addressing the invited error doctrine, the father's testimony was before the jury in this case, or was admitted before the parents ever took the stand.

The presentence investigation report was admitted into evidence at the State's request before Mr. and Mrs. Harris took the stand.

Contained within the presentence investigation report was a victim impact statement.

In that victim impact statement the father flatly stated that Mr. Huertas should receive the death penalty for the crime in this case.

Unknown Speaker: Is that what the Ohio Supreme Court was referring to?

That statement?

I didn't get from its opinion that that's what it was addressing.

I thought it was addressing his... his live testimony.

Mr. Bour-Stokes: The Ohio Supreme Court did address the live testimony, Your Honor.

Unknown Speaker: Yeah.

So what is... what does the other have to do with it?

Mr. Bour-Stokes: My argument this morning is that in no way was the question posed to Mrs. Harris somehow invited error by defense counsel, because the error occurred before Mrs. Harris ever took the stand in this case.

Unknown Speaker: Not the error the supreme court was relying upon to reverse this case.

The error that the Ohio Supreme Court was relying upon was the error of introducing live the testimony of the father.

Mr. Bour-Stokes: That's--

Unknown Speaker: It didn't even address the other one.

Mr. Bour-Stokes: --That's correct, Your Honor.

My argument this morning is not addressed to the Ohio Supreme Court opinion, but to the argument raised by the State of Ohio that somehow this was invited error.

Unknown Speaker: But we're, we're addressing the Ohio Supreme Court opinion, and the question is whether it was... whether the error the Ohio Supreme Court opinion found was invited.

Mr. Bour-Stokes: And... no, it could not have been invited, Your Honor, because of the fact that the presentence investigation report was admitted, and the fact that the Ohio Supreme Court--

Unknown Speaker: Wait, wait.

Why does that make it uninvited?

You put the mother on the stand, that doesn't in... what if... what if counsel had sought to cross-examine the mother?

Could the... could counsel have done that?

The mother says yes, I can, as a Christian I can forgive him.

Could counsel for the State come in and say now, now think about it.

I mean, you know you're supposed to forgive him, but do you really forgive?

Don't you really think this person did a horrible thing and should be punished for it?

Could counsel for the... for the State have asked that question?

Mr. Bour-Stokes: --No.

Under the ruling of this case, Your Honor, it would have been entirely inappropriate.

Unknown Speaker: That... that wouldn't have been invited error either?

Mr. Bour-Stokes: No, Your Honor.

Unknown Speaker: No.

So the defense can put on anything, and in trying to reply to it, it's not invited error?

Mr. Bour-Stokes: But the problem--

Unknown Speaker: Why?

Mr. Bour-Stokes: --The problem in this case is that Mrs. Harris' testimony was not relevant to any sort of rebuttal of the defense evident... and the Ohio Supreme Court so concluded in this case that it was not proper rebuttal.

That Mrs. Harris' testimony was irrelevant from the outset.

She had nothing to offer under Ohio law that was pertinent to the penalty phase.

Unknown Speaker: Shouldn't have been put in then, should it?

Mr. Bour-Stokes: Absolutely, Your Honor.

And Mrs. Harris was--

Unknown Speaker: But having been put in, if the judge let that in, why wasn't the State justified in thinking the judge would let the rebuttal to it in?

Mr. Bour-Stokes: --First of all, Your Honor, since defense counsel already knew that the evidence was before the jury because the VIS was admitted before they ever took the stand, defense counsel had an indication from the trial court that this type of evidence was going to be relevant in his courtroom.

So what progressed with Mr. and Mrs. Harris' testimony, I think, was in direct response to the fact that the trial court felt the PSI and the VIS in this case was permissible under Ohio law, which it is not.

I would like to go on to address the victim impact statement and the issue raised about what Ohio law allows along the lines of victim impact statement.

Since 1968 the Ohio Supreme Court has held that victim impact evidence is not allowable under Ohio law.

And the Ohio legislature also has made a specific finding that victim impact statements are not allowable at the sentencing phase of the capital case.

Unknown Speaker: Now, Ms. Bour-Stokes, the Ohio legislature passed a statute that provided that they were not to be admitted?

Mr. Bour-Stokes: What happened, Your Honor, was--

Unknown Speaker: Well, can't you answer that yes or no?

Did the Ohio legislature pass a statute that said they were not to be admitted?

Mr. Bour-Stokes: --Yes, Your Honor, and in order to conclude that you have to look at the legislative history that went along with the statute.

As the bill was originally introduced into the Ohio legislature it included capital murder.

After discussions, floor debate, that specific provision covering capital murder was taken out of the statute, and the statute was passed without capital murder being included.

Unknown Speaker: Now, this is a statute which allow victim impact testimony generally?

Mr. Bour-Stokes: That's correct, Your Honor, allowed victim impact testimony in noncapital cases.

Unknown Speaker: Allows it to be admitted or compels it to be admitted if offered?

Mr. Bour-Stokes: Allows it to be admitted should the victim's family wish to make a statement or--

Unknown Speaker: It's up to the judge, but the judge can say I don't allow victim impact statements?

Does it--

Mr. Bour-Stokes: --That's correct, Your Honor.

That is correct.

Unknown Speaker: --Is that right?

The judge can say, even though there's a statute on it, the judge can say I know the State says it's admissible, but that just means it may be admitted, I can keep it out?

Mr. Bour-Stokes: First of all, there are three statutes that--

Unknown Speaker: See, I thought the statute was compulsory, and all the State did was decline to make it mandatory for capital cases, but without saying whether it was admissible.

Mr. Bour-Stokes: --No, Your Honor, I do not read the statute that way at all.

There are three statutes in Ohio that cover victim impact.

Two of them provide that if the victim's family wishes, it may make a statement at a plea hearing or at trial.

The third section covers when a victim impact statement shall be considered by the trial court, and those are very limited circumstancing... when imposing... deciding what the minimum term should be for an indefinite felony, and deciding what a fine should be.

So in only those two cases in Ohio is it mandatory that the trial court consider victim impact information.

And the Ohio Supreme Court in another capital case has already concluded that that statute does not cover capital cases, and victim impact evidence cannot be admitted under that statute.

Unknown Speaker: What is the Ohio statutory law right now defining aggravating circumstances?

Mr. Bour-Stokes: There is a specific statute in Ohio, Your Honor, that lists... enumerates eight specific aggravating circumstances.

The type of evidence at issue in this case today does not fall within any of those aggravating circumstances.

And it's also important to know that in Ohio nonstatutory aggravating circumstances may not be admitted at the penalty phase.

So if the evidence does not constitute an aggravating circumstance or a mitigating factor, it is not relevant under Ohio law.

And no argument can be made before this Court today that the testimony in this case, either Mr. or Mrs. Harris' testimony, was somehow relevant to Ohio's capital statutory scheme, because it's not.

Unknown Speaker: Well, the Ohio Supreme Court could have reversed on that ground but didn't.

I mean, that isn't the issue we took this case to determine.

I mean, we... the Ohio Supreme Court decided on some constitutional ground, not on the ground that this evidence doesn't go to any aggravating factor that Ohio law allows.

Mr. Bour-Stokes: No, Your Honor.

But in its opinion the Ohio Supreme Court did discuss the jury's constitutional obligation to weigh the aggravating circumstances--

Unknown Speaker: Oh, but we--

Mr. Bour-Stokes: --and the mitigating factors.

Unknown Speaker: --We only look to the syllabus.

[Laughter]

Mr. Bour-Stokes: But if there's some confusion in this Court about what constitutional right means and what the court meant by its syllabus, then this Court can go into the text.

And if this Court looks at the text and looks at the analysis the court used, it did rely on the jury's obligation to weigh the aggravating circumstances and mitigating factors, and that this evidence somehow impinged on that obligation and was impermissible under Ohio law.

If there are no further questions, I would respectfully ask that this Court affirm the decision of the Ohio Supreme Court.

Thank you.

Unknown Speaker: Are you going to argue that Booth and Gathers should not be overruled?

Mr. Bour-Stokes: Your Honor, I do not think that Booth and Gathers... this is an appropriate vehicle for a Booth and Gathers analysis because of the fact that Ohio law prohibits the introduction of victim impact statements.

Unknown Speaker: Suppose we think that's wrong?

Mr. Bour-Stokes: If the Ohio Supreme Court determines that under Ohio law that constitutionally can't be admitted--

Unknown Speaker: Suppose we reach the Booth-Gathers issue?

Mr. Bour-Stokes: --If this Court were to reach the Booth and Gathers issue and decide... and overrule Booth and Gathers, the result in this case would not change for two reasons.

First, because--

Unknown Speaker: So you don't care if we overrule Booth and Gathers?

Mr. Bour-Stokes: --Oh, I absolutely care, Your Honor.

[Laughter]

I would prefer that this Court not overrule Booth and Gathers, and I think, for all the reasons that have been advanced to this Court before and the policy considerations.

Those cases were properly decided under the Eighth Amendment and should stay in force.

My argument this morning is this case does not give this Court an appropriate vehicle to adjudicate the propriety of the Booth and Gathers decisions, (a) because of the improper opinion testimony of the father in this case, and because of the fact that Ohio law prohibits the introduction of victim impact evidence.

Thank you.

Unknown Speaker: Thank you, Ms. Bour-Stokes.

Mr. Rosenbaum, do you have rebuttal?

You have 3 minutes remaining.

Rebuttal of Jonathan E. Rosenbaum

Mr. Rosenbaum: Thank you.

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

I would briefly like to say that I think the argument made by the respondent illustrates the one-sided focus of the Booth regime.

We keep hearing about Mrs. Harris' testimony, Mr. Harris' testimony, and no one in the court below recognized the invited error or that the defense had done the exact same thing.

Everything that the State asked of the victim's parents in this questions was in a direct... was in direct rebuttal or was the exact same question that the respondent's lawyer asked.

And there is a one-sidedness under the Booth regime.

And the penalty phase has truly become the mitigation phase [inaudible].

Unknown Speaker: Of course, Mr. Rosenbaum, there is... isn't there also a one-sidedness in the whole business of you're limited to statutory aggravating circumstances on the one side, but on the other side they can use nonstatutory mitigating circumstances?

That's kind of one-sided, too.

Mr. Rosenbaum: That is one-sided.

Unknown Speaker: And it's probably unconstitutional, too, under your argument.

Mr. Rosenbaum: No, I don't... I would not go that far.

Unknown Speaker: Why not?

Mr. Rosenbaum: Because the State has recognized, or you... this Court has recognized that the State has a legitimate right to rebut that, and that's what the State did here.

And you cannot recognize the State's right to rebuttal and then chop it up, and call that equal justice.

And that's what I am arguing about here.

Unknown Speaker: Of course it's kind of one-sided that they have to prove their case by a... beyond a reasonable doubt, too.

Mr. Rosenbaum: Well, the State of Ohio welcomes that burden.

Unknown Speaker: Yeah.

Mr. Rosenbaum: And that is fair, and that is a proper part of--

Unknown Speaker: Some one-sided things are okay, and others are not.

Mr. Rosenbaum: --But in this burden the State should... in meeting its burden the State should not be severely handicapped.

The State should be able to meet victim impact testimony that the defense can put on in mitigation with the actual harm caused, and include victims in our system of justice.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Rosenbaum.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Tuesday next at ten o'clock.