Cases by Issue - Jurors and Death Penalty

Morgan v. Illinois - Oral Argument

Fri, 09 Jan 2009 14:49:34 +0000

Case:

Morgan v. Illinois

Media File:

91-5118_19920121-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Allen H. Andrews, III

Chief Justice Rehnquist: We'll hear argument next in No. 91-5118, Derrick Morgan v. Illinois.

Mr. Andrews, you may proceed.

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

The issue in this case is whether, in a capital case, a defendant's right to an impartial jury requires a trial court to inquire of potential jurors whether, if the defendant is convicted of murder, they would automatically impose a sentence of death at a subsequent sentencing hearing.

The issue in this case arose at Mr. Morgan's trial.

The defendant asked the trial court to ask the jurors, would you impose... if you convict Derrick Morgan of murder, would you impose a sentence of death no matter what the facts are.

The trial court declined, giving an explanation that he had asked that question in substantially similar form at some earlier time, but he had not.

At the State's request, the trial court did ask the potential jurors whether they could never impose the death penalty upon Mr. Morgan.

Following those questions, approximately 17 jurors were excused because they could not sentence Mr. Morgan to death, or they said they could not.

Mr. Morgan was convicted by the jury of murder, and he was subsequently sentenced to death by that jury.

The Illinois supreme court affirmed both the conviction and the death sentence.

On this issue, it ruled that there was no requirement to reverse Witherspoon in the jury, in other words, to ask whether the jurors would always impose death.

It also held that because Mr. Morgan could not demonstrate that any of the jurors were prejudiced against him, that he was not entitled to any relief.

This Court granted certiorari to review that decision.

Now, the Sixth Amendment and the due process clause of the Fourteenth Amendment guarantee a defendant an impartial sentencing hearing in a death penalty proceeding.

Automatic death penalty jurors, people who would automatically impose death, cannot serve because they cannot be impartial.

Unknown Speaker: Is that question... would that question, is it really asking, will you... would you always impose a death penalty, even if you are instructed to weigh mitigating and aggravating circumstances?

Mr. Andrews: That question did not... the form of the question did not discuss the Illinois statute.

It did not discuss weighing--

Unknown Speaker: So, in short, it does cover that... it does mean would you disobey your instructions.

Mr. Andrews: --Actually, it definitely does mean would you disobey the instructions.

That is all that the defense was trying to find, was to discover whether jurors were being seated who could not follow the law.

And indeed, that is the only thing that they wanted.

Unknown Speaker: Well, let's assume they said, and satisfied the court, yeah, we'll obey our instructions.

But then at the end of the weighing, there's all these... still an area of discretion, isn't there?

Mr. Andrews: There's a tremendous amount of discretion.

Unknown Speaker: But the question wasn't just narrowed to that.

Mr. Andrews: The question was not narrowed as to whether they could weigh aggravation or mitigation.

Unknown Speaker: Or it wasn't narrowed to whether where you have discretion, whether you would always vote for the death penalty?

Mr. Andrews: No, it wasn't.

It was even narrower than any of that.

It was whether you would always impose death, no matter what type of sentencing procedure had been followed.

It was not even as broad as probably would have been allowed by decisions subsequent.

Unknown Speaker: Well, I know, but if somebody, any juror who said, I won't obey my instructions, is going to be thrown off, isn't he?

He's not going to answer yes to that.

Mr. Andrews: No, he's not going to say that he would not obey the instructions.

There's a tremendous amount of pressure.

And for that reason, these general questions about whether or not you would obey the law, or whether you can be fair, are not adequate to reveal whether somebody would automatically impose the death penalty.

Unknown Speaker: Mr. Andrews, why do you say it amounts to violating your instructions?

I mean, I gather the instructions are, you know, given your assessment of what is mitigating, you should let him off.

But if a juror says, hey, I am really... I am a hard nose, and I would not allow any mitigation for this kind of... why is that disobeying the instruction?

He is just telling the judge, that's the way my judgment works.

That's not disobeying the instruction, is it?

Mr. Andrews: You're right.

It does not require them to disobey the law.

They're told in Illinois that the death penalty will be imposed unless mitigation outweighs aggravation.

Well, to jurors such as these, the mitigation will never outweigh the aggravation.

They believe that death should automatically be imposed, so therefore they will never find enough mitigation to preclude the imposition of the death penalty.

Unknown Speaker: And it's your position that there's nothing in these instructions that the State can point to to counter the effect that you fear.

Mr. Andrews: No, there is absolutely nothing in the instructions, because that is precisely what they are told, that they have that discretion, and it is pure weighing.

And there is no... the Illinois supreme court has said that there is no burden of proof upon the State, so they can do whatever they want, as long as they weigh the mitigation.

And even if--

Unknown Speaker: Is a part of your submission, Mr. Andrews, kind of sauce for the goose, sauce for the gander, that since the State is entitled to ask Witherspoon/Witt types of questions to jurors to see if they would ever impose the death penalty, you should be able to ask similar questions kind of pointing in the other direction?

Mr. Andrews: --That is part of our argument.

We don't demand absolute equality, but in an issue of this importance, where the State is allowed to exclude, as in this case, perhaps 17 people, we do think that fundamental fairness requires that we should be able to discover the opposite type of jurors, those jurors who would always impose death.

Unknown Speaker: Well, would your position be the same if the Witherspoon question was not asked?

Mr. Andrews: I believe that even if the State does not Witherspoon, the defendant's interest in obtaining an impartial jury is so significant that he should, at his request, be entitled to have the judge inquire of these jurors whether they would automatically impose death.

If for some reason the State decides that they do not care whether there are anti-death penalty people on the jury, their decision should in no way force a defendant to perhaps be tried by a jury composed of people who would automatically impose death upon him.

Unknown Speaker: Would you say you're entitled to have a question asked of jurors, do you favor the death penalty?

Would you lean towards imposing the death penalty in any case, or not?

Mr. Andrews: No, Your Honor, we merely want a question that would reveal whether they could, you know, consider the mitigation and follow what the Constitution requires, and not be automatic death penalty jurors.

Unknown Speaker: Mr. Andrews, you mentioned fundamental fairness.

That's sort of a due process standard, but you're also relying on the Sixth Amendment, aren't you?

Mr. Andrews: Yes, Your Honor.

Unknown Speaker: How can you rely... I thought we've held, I know we've held, that the Sixth Amendment does not apply to... that there is no Sixth Amendment right to a jury in the penalty phase of a trial.

Mr. Andrews: Well, when there is a jury in the penalty phase in the trial, when the trier of fact in the penalty phase has to be impartial, and--

Unknown Speaker: Well, that's a due process claim, though, not a Sixth Amendment claim.

Mr. Andrews: --Even though there is no right to a jury, it seems to me that when the State gives you the right to a jury, that the jury has to be impartial, as required.

Unknown Speaker: Well, again, that's, it seems to me, a due process assertion.

I don't see how you can get to a Sixth Amendment right to an impartial jury when there is no Sixth Amendment right to a jury.

Mr. Andrews: Well, this Court has specifically held in Turner v. Murray that the Sixth Amendment applies.

There's the Bollington v. Missouri case that says that a death penalty sentencing hearing is the equivalent of a trial, and I would say that certainly supports the Sixth Amendment application to the sentencing hearing.

Unknown Speaker: I'm just saying I don't understand it.

Well, it wouldn't hurt your feelings to rely on due process, would it?

Mr. Andrews: No, Your Honor, it wouldn't hurt my feelings to rely on the equality argument, either.

I would just like some relief for Mr. Morgan.

Now, the risk... there's a great risk that these people will serve if this inquiry isn't made.

Now, the cases of Ross v. Oklahoma and Mu'Min v. Virginia, automatic death penalty jurors appeared in there.

There are a large number of State cases where these people appear.

In June of 1991, there was a poll that said 76 percent of the population favor the death penalty, and half of those believed in the concept of a life for a life.

So there are definitely people out there who will do this, who will impose death automatically.

And furthermore, it is not, as the State perhaps suggests, merely a question of numbers, it's a question of logical consistency.

These jurors are as unfit to serve as a juror who would not impose the death penalty, and logically we should be entitled to inquire--

Unknown Speaker: I take it that in the State courts of Illinois the judge voir dires the jury all the time?

Mr. Andrews: --The judge has absolute discretion.

He can allow the jurors to voir dire... the attorneys to voir dire if he sees fit.

In this case, the trial judge allowed absolutely no participation other than to request questions.

So the trial judge can preclude any inquiry.

And in this case the attorneys had no chance to ask--

Unknown Speaker: Would it have satisfied you if the judge was willing to ask the jury, do you swear to follow your instructions, including the instruction to weigh any mitigating evidence against the aggravating evidence?

Mr. Andrews: --No, Your Honor.

Unknown Speaker: Would that satisfy you?

Mr. Andrews: No, Your Honor.

Unknown Speaker: Why not?

Mr. Andrews: Because as was pointed out earlier, these people might think that they're weighing mitigation and aggravation, but they're not weighing it in any meaningful manner as is contemplated by the Constitution.

What they do is they believe that no mitigation can outweigh the aggravation.

It is automatic.

Any weighing would be pointless.

It is not meaningful as the Constitution contemplates.

Unknown Speaker: Well, how would your question bring it out any more subtly or more discreetly?

Mr. Andrews: It would just directly ask them.

They would know what was required of them.

Could you... they wouldn't even have to know what was required of them.

Would you automatically impose death?

If they answered yes, they would be removed from the venire, and they could not be on the jury.

Unknown Speaker: But you're going to find a fair amount of people, I dare say, who answer no to that question.

Mr. Andrews: Yes.

Unknown Speaker: And yet are very likely to find that the aggravating circumstances outweigh the mitigating circumstances.

Mr. Andrews: Well, we're not arguing that the death penalty can't be imposed in suitable cases.

Unknown Speaker: Would it have satisfied you if the judge says, well, I'll ask this amended question.

Would you, despite your instructions to the contrary, always impose the death penalty?

Mr. Andrews: That would, I believe, satisfy me, because that would reveal that these people would always impose a death penalty.

However, that question is not the reverse of the Witherspoon question.

Ideally, what would be asked is would you always impose it, and they would answer.

And if there was some problem with the type of answer that they gave, if there was some ambiguity, then the trial judge would continue it and explore it more.

Unknown Speaker: But our law does not prevent them from always imposing the death penalty.

We don't say that a juror must weigh and be able to come out with a result against the death penalty.

A juror who always comes out with a death penalty is a perfectly acceptable juror, as far as our case law is concerned.

He just has to be given the opportunity to weigh.

We don't say that he must have at least a reasonable possibility of coming out in favor of the defendant.

If he wants to weigh and come out that way, he must be allowed to do so.

Mr. Andrews: What the case law has said is that weighing has to be meaningful.

Now, if he's automatically going to impose death, his weighing is not meaningful, and he is not--

Unknown Speaker: Where does it say that it must be meaningful?

I don't... I think there has to be a meaningful opportunity as far as the restrictions placed on the juror are concerned, but I don't think we've ever said that the juror has to be someone who will have a reasonable possibility of coming out that way.

Mr. Andrews: --Well, the defendant has a right to present mitigation.

Now, to effectuate that right, he has to be able to present it to jurors who will pay attention to it.

Otherwise, it's an absolutely meaningless right.

Unknown Speaker: Why is that?

Suppose I'm the type of juror who... I just really don't like any hearsay evidence, including some hearsay evidence that comes in under exceptions to the hearsay rule, and I'm just not persuaded by that kind of evidence.

Do I have to be excused?

Mr. Andrews: Yes, because you cannot follow the law to--

Unknown Speaker: No, the law tells me to give it whatever weight I think it's entitled to.

In my view of the thing, I think this kind of evidence is entitled to zero weight.

I'm not a bad juror for that, am I?

Mr. Andrews: --I'm not saying that these are bad people, or anything of that nature.

I'm saying they are not fit to be jurors.

It's a very logical position in its own way, that death should be automatic following a murder.

But the defendant's right to present this mitigation to defend his life is meaningless if these jurors are on the jury.

And if these jurors were fit, this Court would not have held in Ross v. Oklahoma that a death sentence must be vacated if there's even one juror on the sentencing jury.

Unknown Speaker: Were you trial counsel?

Mr. Andrews: No, I was not.

Unknown Speaker: Have you tried death cases?

Mr. Andrews: No death murder cases, Your Honor.

Unknown Speaker: How often would you predict that some juror is going to answer yes to your question?

Mr. Andrews: I would have no way of predicting.

I mean, certainly couldn't tell from this record, since the question wasn't asked.

But it seems to me the kind of question that isn't necessarily... shouldn't be based--

Unknown Speaker: You speak about these people as though they were really quite a group of people.

Mr. Andrews: --I honestly couldn't tell you how large a group of people there are.

I would say that perhaps as the death penalty becomes increasingly popular that they would become more common.

But again, the defendant's right to preserve his life is pretty well ruined when such an individual serves on the jury.

And whether there are a lot or a few, the question is whether can... will some of them possibly be seated?

And they definitely will, and that is what all of these cases show.

So it's not necessarily a question of how many there are, or are there as many as would not impose death.

Unknown Speaker: At least we knew there was one in Ross v. Oklahoma.

Mr. Andrews: Yes, and there was one in Mu'Min.

And in Ross it was, the juror said, I can be fair.

And then they asked him, but would you always impose death?

And he said, oh, yes, I would.

I wouldn't consider a lesser sentence.

So that case is a perfect example of where the fairness question, or the following the instructions wouldn't apply, because they don't really know what fairness involves, or what the law involves in the future.

You need to ask this question.

That tells them what the law is, and that is what allows them to make an honest answer.

And they don't find themselves on the jury.

Now, in addition to the number of people who actually might or might not be out there, there's just a tremendous amount of prejudice resulting from a people's serving on this.

Because these people have already decided the ultimate issue in this case.

It's not like race or bias against beards or any of the other biases, it goes to the ultimate issue.

A racist might acquit somebody, even though he does not like their race.

He might do it.

But this is a person... it's a bias of an entirely different type.

They don't think there's anything wrong with it.

They will never, ever, you know--

Unknown Speaker: Well, what about a person who is perfectly willing to follow the instructions, but if they were questioned, they said, you know, I really am not much moved at all by this evidence of an abused childhood.

You know, I had an abused childhood.

I rose above it.

I think it's all a lot of bunk as mitigating circumstance.

If they want to put in some other kind of mitigating evidence, that's fine, but that just doesn't move me at all.

Should he be excludable?

Mr. Andrews: --No, because he can consider the mitigation, he just does not give a certain type that much weight.

Perhaps if he said, absolutely, I would refuse to consider the mitigation, perhaps he should be excluded.

But realistically, you're not allowed to inquire of these jurors what type... about the type of mitigation you might present.

We just want to know whether--

Unknown Speaker: Isn't that going to be the next step if we rule in your favor?

Mr. Andrews: --No.

No, I do not believe that it would be, because this goes to the ultimate issue of whether they can just absolutely follow the law.

It is the ultimate issue.

That is a prejudice against a certain type of evidence.

It is not outcome determinative of itself.

He could consider other mitigation and not impose death, or he can consider that mitigation and give it very little weight.

This just goes to the ultimate issue.

It is just like the Witherspoon juror.

Unknown Speaker: Of course, if there are one of these persons who, if you didn't have your question asked and there was one of these always will give the death penalty people on the jury, of course, he couldn't control the verdict just by voting for the death penalty alone.

Mr. Andrews: No.

Certainly not in Illinois, where it requires a unanimous jury.

Unknown Speaker: And it's different on the other side, though.

In the Witherspoon case, in Illinois, a single person could avoid a death... could negate a death penalty.

Isn't that right?

Mr. Andrews: Yes, that's absolutely true, and that's the whole point of the statute.

But it is not true that that somehow... well, first the State argues that they have this greater interest than we do in discovering the Witherspoon reasons for the purpose outlined in your question, but their interest is really wholly irrelevant.

If our interest in discovering these jurors is great enough, I'd be willing to concede to them that theirs is 10 times greater than ours.

But as long as ours is great enough to require the inquiry in this case, their interest is absolutely irrelevant.

It's just not logically equated to this.

Unknown Speaker: Are you so interested because you would think that that single juror out of the 12 would be able to unduly influence the other 11?

Mr. Andrews: No, it is not a matter of undue influence at all.

What it is, is the structure of the Illinois death penalty statute, where one juror can preclude the imposition of the death penalty.

So the way it works is you've got 12 shots at saving your life.

Unknown Speaker: And if this one person wasn't so hide bound, he might be the person to vote against it.

Mr. Andrews: Exactly.

And the more people you have on, the fewer chances you have.

And the fact that each juror can prevent it makes each individual juror a very crucial person.

Unknown Speaker: And you say the Constitution requires that you have 12 shots at this rather than just 11 or 10 or whatever?

Mr. Andrews: I'm not saying that the Constitution requires any number of jurors or anything.

I'm saying that the statute should... that the State's point about the statute, that their interest is greater, is absolutely incorrect, because the statute is designed to make the death penalty difficult to impose, and that each of these jurors should not be able to... should have the opportunity to preclude it, and that the automatic death penalty people don't.

Unknown Speaker: Well, I think if you're talking about a Sixth Amendment right to a jury and an impartial jury, I think that argument may go.

But if you're just talking about fundamental fairness, it doesn't seem to me fundamentally unfair to allow this decision to be made by 12 individuals, some of whom may have this attitude, even though others don't.

Mr. Andrews: Well, if that is the position of this Court, the next cases you're going to see is what about with three of these people on the jury?

What about with six?

And we'll be fine-tuning that for a long time.

Unknown Speaker: Do I understand you're making the rather extreme argument that you're entitled to have all 12 jurors unbiased?

Mr. Andrews: Yes, exactly.

Just as if in a trial, you know, no one would ever say that a racist was entitled to sit on a jury for guilt merely because the other 11 jurors would have to agree with him to convict.

It's just not done.

Unknown Speaker: For making the rather extreme argument that you are a biased juror if your particular view, which is not unlawful, of a crime is that this crime deserves the death penalty, and I will listen to the evidence of aggravating and mitigating circumstances, Your Honor, but I will tell you now, with this kind of a crime, I will always find in favor of the death penalty.

Is there anything unlawful about that?

Mr. Andrews: Yes, they cannot consider mitigation.

It's not a crime per se, but they are not fit to be jurors.

Unknown Speaker: They consider it.

They just come down against your client.

Mr. Andrews: Well, they don't meaningfully consider it.

They just... if they as much as told the judge before they've heard it that they're not going to give the guy any consideration about it, they're not going to consider the mitigation.

That's about as much as I can really say on that subject.

It's just that if they're announcing in voir dire that it's always going to be death, there is no consideration that follows in the sentencing hearing.

Now, given the fact that in Ross v. Oklahoma this Court has said that these jurors shouldn't serve, it would seem to me that perhaps the State's greatest interest in this case would be to allow this inquiry so that we don't have to keep coming back in collateral proceedings in the future to overturn these convictions.

Because if we don't get to voir dire these jurors on this subject, the only time we can find out about whether they would automatically, or did automatically, impose a death penalty is years later in a collateral proceeding, and then the State's going to be in the posture of re-creating these trials and finding their witnesses.

And it seems to me their best policy is to agree that we ought to have this inquiry whenever the defendant asks for it.

Unknown Speaker: I don't understand.

How do you find out in collateral proceedings?

Mr. Andrews: You go and interview the actual jurors and you ask them, were you... did you believe that you would automatically--

Unknown Speaker: But will the judge allow you to inquire into that?

Mr. Andrews: --This is after the trial.

You can't, like, do this on direct appeal.

You have to wait for the collateral proceedings and go out, and you interview all of the witnesses, and you interview the trial attorneys and the jurors.

It's done all the time.

And it's so far perfectly permissible to interview the jurors.

Now, as far as the other inquiry--

Unknown Speaker: And the statement of the interviewer is admissible in the collateral proceedings?

Mr. Andrews: --You could call the juror themselves after they've talked to you.

Now, as far as a few more points on the State's positions.

Now, they argue that, you know, that the fairness inquiry is adequate.

But even the Illinois supreme court has finally realized, after Mr. Morgan's case, that direct inquiry... there is no better way than direct inquiry into this.

And they have backed away from their idea that these fairness questions can reveal it and that the defendant is somehow required to show that the jurors are prejudiced, even though he was never entitled to ask about the subject matter.

And as far as the instruction about following the law, here in this case, in the discretion of the trial judge, he didn't even ask three of the jurors if they could follow the law.

So here, at a minimum, in this case, the following the law was not adequate because they were not even asked.

Unknown Speaker: Mr. Andrews, how do you want this question to be asked?

Is it to be asked with reference to the particular crime at issue?

I mean, would you say in the voir dire, you know, this is a case of the rape and murder of a, you know, of a 15-year old, or something like that?

I mean, could you describe the exact crime before you ask the question?

Mr. Andrews: No.

We do not seek that right at all.

We would seek, you know, Wainwright v. Witt, or Witherspoon... anything, no hypotheticals, no facts, just direct inquiry on whether they could follow this crucial area of the law.

Would your belief that the death penalty should be imposed, you know, interfere with your performance of your duties as a juror?

Unknown Speaker: Should be imposed for what?

It's hard for anybody to answer that question.

I mean, what crime are we talking about here?

Shoplifting?

Mr. Andrews: No, the death penalty.

If you convict Derrick Morgan of murder, would you automatically impose a death sentence in this case?

That would be fine.

I think that that would cover it.

Unknown Speaker: What if the juror says, well, it would depend on the nature of the murder?

How, you know, how gory and heinous it was.

Mr. Andrews: I think that that is a juror who can consider mitigation and who is not an automatic death penalty juror.

And if there was some doubt in the trial court's mind, then he could inquire further.

Unknown Speaker: And you don't think counsel would follow up with, well, let me describe to you this murder, and then the circumstances of the murder--

Mr. Andrews: No, not in Illinois, because the trial judge has complete discretion, and if he thinks that the trial counsel is doing something that he shouldn't be doing, then he would tell counsel to stop.

Unknown Speaker: --So you would just describe the nature of the offense, murder, or whatever--

Mr. Andrews: Yes.

If you convicted Mr. Morgan of murder, would you automatically impose death?

In conclusion, I would just state that because of the importance of this issue to the defendant's right to a fair sentencing hearing, and because the questions were not asked in this case, that the judgment of the Illinois supreme court should be reversed.

And if there were no further questions I'd like to reserve my remaining time for rebuttal.

Unknown Speaker: --Thank you, Mr. Andrews.

Mr. Gillis, we'll hear from you.

Argument of Kenneth L. Gillis

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

Petitioner asks for a per se rule here, which would require all State trial judges in capital cases to ask a particular form of questions to prospective jurors.

Except for the racial prejudice cases, Turner v. Murray, capital cases, this Court has never required that of State trial judges.

The area about the thoughts about the death penalty was adequately opened by the trial judge here.

One juror, Benjamin Dexter's, views were extreme, and he was excused from the jury.

The trial judge's questions adequately explored that area.

Unknown Speaker: May I ask, on that juror, I gather he's the one that said he would automatically impose the death penalty if there were a conviction of first degree murder?

Mr. Gillis: Well, he related, too, that a friend's parents had been murdered, and he speaks somewhat inaccurately, but I would say a fair reading of that is that he would either put that person to death or perhaps he was referring to the petitioner in this case.

Unknown Speaker: The question I wanted to ask you is supposing the juror, it comes out during the colloquy, that he believed in the eye for an eye and a tooth for a tooth, and that if there were ever a conviction for first degree murder, he thought that nothing less than the death penalty should be imposed.

Would you think it would be an appropriate challenge for cause to remove that juror?

Mr. Gillis: Yes, I do.

Though I think that we must look realistically at the whole situation of a trial.

The jurors don't know much about the case at this point, just the charges and some of the names, the victim's name and the defendant's name.

It's only after they get the complete set of instructions later on in the trial that they would have their attention focused on the narrow issue of aggravation and mitigation in this case.

Unknown Speaker: May I carry my question one step further?

Agreeing that it would be appropriate challenge for cause, do you think the Constitution would require that a challenge for cause be granted on the facts I've given you?

Mr. Gillis: No, I don't believe it's a constitutional issue.

Unknown Speaker: How then do you explain Ross?

Mr. Gillis: In Ross v. Oklahoma, that juror did not sit, but a peremptory challenge was used.

Unknown Speaker: Well, but I thought the Court made it very clear that if that juror had been seated, that a reversal would have been required under the Sixth and Fourteenth Amendments.

Mr. Gillis: Well, I think that in Ross the question was the whole make-up of the jury, whether the jury was impartial, a kind of a factual inquiry about the impartiality of that juror.

Take... Darrell Huling in that case did not sit, but as I recall, a peremptory had to be used and the Court held that that upset the fairness of the mechanism in so far as the jury selection.

Unknown Speaker: Mr. Gillis, why did you answer yes to Justice Stevens' question?

Why was it a proper challenge for cause?

Mr. Gillis: It may not be a constitutional violation, but I think a judge using his discretion could apply the Witt standard and say that this person was impaired on that issue, that he may not be able to set aside that view, and he may not be able to follow the law.

I think it's discretionary, however.

Unknown Speaker: Well, it's discretionary, then, for him to say, not necessary but discretionary for him to say, something like this.

The need for a deliberative process implies the need for individuals who at least are capable of going either way, depending on the evidence.

This individual is not capable.

Therefore, I will excuse for cause.

But are you saying that it's up to the judge to determine whether that is in fact his standard for cause?

Because you said the judge didn't have to do it.

You said it was within the judge's discretion to excuse for cause.

Mr. Gillis: I think it is within his discretion to rule whether this person is so impaired that the person could not consider the issues in the case.

Unknown Speaker: Well, are you saying, then, it would also be within his discretion to say, I find that the person in fact could not go in one direction regardless of what the evidence would be, but in my judgment, as long as this juror will consider the evidence before he comes to the inevitable result, that is enough, and I will not excuse for cause.

Is that also your position?

Mr. Gillis: I think a leaning is not necessarily enough, but--

Unknown Speaker: Well, this isn't a leaning.

The judge concludes that no matter what the evidence is, the juror can only go one way.

For example, an eye for an eye, a tooth for a tooth juror always is going to impose... vote for the death penalty if there is a conviction.

Are you saying that it is within the judge's discretion to say it is constitutionally sufficient that the juror will consider the evidence even though the result of considering that evidence in that juror's case is inevitable?

Is that your position?

Mr. Gillis: --I think if the juror, before hearing the evidence, is locked into one point of view and cannot give up that point of view, that that is not a proper juror.

Unknown Speaker: So that if the outcome is certain, if no process of deliberation would change the result, then the judge has to excuse for cause.

Mr. Gillis: If the judge makes that finding.

If he or she makes that finding, I would think so.

Unknown Speaker: And does the Federal Constitution require that result?

Mr. Gillis: I don't believe that that is in the Sixth Amendment or the Fourteenth Amendment.

It's a matter that's been left to the discretion of the State trial judges, and I think--

Unknown Speaker: Well, if the Constitution doesn't require it, then I don't understand your answer in this Court when you have a Federal court trying to determine what the State court must do.

I just don't understand your answer.

Mr. Gillis: --I'm sorry.

I... my point is that given this Court's jurisdiction, and given that this is a State court, that it should be left to the discretion of the trial judges, and not constitutionally mandated through the Sixth and Fourteenth Amendments.

Unknown Speaker: What if the State wants to ask prospective jurors whether they would never be able to impose a death penalty?

Mr. Gillis: I... the form, I think they could legitimately ask questions about attitudes about the death penalty as Witt and Witherspoon have talked about.

Unknown Speaker: Can the State require the trial judge in Illinois to ask those questions, or such a question of prospective jurors?

Mr. Gillis: Other than through persuasion, I don't think the State can require it.

Unknown Speaker: There is no constitutional requirement that the State be allowed to do that?

Mr. Gillis: That's right.

Other than the opinions of this Court--

Unknown Speaker: And you find nothing in the opinions of this Court to suggest the contrary?

Mr. Gillis: --That's right.

It's only if the process is done, as in Witherspoon, it must be done fairly.

Witherspoon restricted the State's right to excuse, but I don't think that it requires this to be done, this sort of questioning to be done.

Unknown Speaker: Suppose we say that it is a violation of the Federal Constitution for a juror who automatically will vote for the death penalty to sit on the jury.

Suppose we say that.

Do you lose this case?

Mr. Gillis: No, I don't think so.

There is still--

Unknown Speaker: Because even though there is a constitutional right to excuse that juror, you don't have to provide a mechanism for discovering that bias?

Mr. Gillis: --In Ross, the juror admittedly and clearly said, I am always for the death penalty.

We don't have that situation here.

We've got one juror--

Unknown Speaker: What we're asking here is whether or not there must be a mechanism to uncover and disclose that bias.

Mr. Gillis: --We have a mechanism here.

The trial judge opened up and explored the area.

I don't think there has to be a particular mechanism, a particular form of words.

And that, the Court has never ordered that, except in the racial prejudice case or a situation like Hamm v. South Carolina, where there were special circumstances.

Unknown Speaker: You rely on both the voir dire and the instructions as being adequate to guard against any juror who would automatically impose the death penalty.

Mr. Gillis: The whole trappings of a trial court, the solemnity of it, the judge is there, the voir dire, the introductory remarks, and the juror's oath that he swears to follow the law and apply the law to the facts, and then the instructions, which, in this case, narrowed the discretion, that still there is discretion, but it's vastly narrowed from the situation.

Unknown Speaker: Well, can you point to anything specific in the instructions that it would advise a juror that it is his duty not to impose the death penalty automatically?

Mr. Gillis: The instruction says if you find any mitigating factor that you should not impose the death penalty.

That's on joint abstract, page 123.

Unknown Speaker: You just--

Mr. Gillis: No.

Unknown Speaker: --What?

Mr. Gillis: That's correct.

Unknown Speaker: What was your page, Mr. Gillis?

Mr. Gillis: 123.

If you unanimously find, from your consideration of all of the evidence... now, that's the no mitigating factor.

The flip side of it is, if you unanimously find from your consideration of all of the evidence that there are no mitigating factors sufficient to preclude the imposition of the death penalty, then you should sign the verdict requiring the sentence of death.

Unknown Speaker: Well, I suppose that the hypothetical is that this juror says, I don't think there are ever mitigating factors.

Mr. Gillis: Well, that's... that may be a matter that comes in the jury deliberation room once that occurs.

Unknown Speaker: But my point is there's nothing in the instructions that would advise the juror that this was an incorrect disposition on his part.

Mr. Gillis: Everything about the process, including the instructions, directs the jurors to see if they can find mitigation.

If a person is so made up that they just do not believe in this facts... in this case that there amounts to mitigation, then I think the juror's within their right to vote for the death penalty.

But you're right, that nothing in particular points out... nothing in voir dire points out these decisions which will come later.

Although the judge did a thorough job of explaining that first there'd be a finding of guilt, innocence, and then there'd be a finding of eligibility, and then there would be a finding about aggravation and mitigation.

So the jurors knew, and one of the juror's answers mirrored the fact that he recognized that decisions would be made later on down the line, of which they did not know the facts at that point.

Unknown Speaker: Mr. Gillis, can I give you just one other hypothetical?

I don't mean to push you too hard on this, but I'm assuming a question whether the juror would in all cases vote in favor of the death penalty in all cases of first degree murder because that was his conviction.

And after the defendant's peremptory challenges have been exhausted, say the interrogation of the jurors revealed that there were 12 such people in the panel, and they all got on the jury.

Would you think that would be consistent with the Federal Constitution?

Mr. Gillis: Well, it seems to me that there's a basic core of fundamental rights in the Fourteenth Amendment that that situation would cry out for relief.

Unknown Speaker: I think it would, too, but why wouldn't one do it, then?

Because isn't the theory of it that the 12 are not completely unbiased if they have that fixed view on penalty?

Mr. Gillis: In the real world, we wouldn't be able to... there's nobody that stamps this person automatically for death penalty.

Unknown Speaker: No, but that person very candidly says... and there are such people out there.

I don't think anyone denies that there aren't some people who believe very sincerely that this is the correct punishment for--

--But I think when they're in a trial and they're directed by the judge that here are the instructions, read the instructions, and they are informed to follow the law, and follow their oath, that that person's individual feelings would be placed in a very secondary position to the solemn instructions of the law.

Well, I take it your answer is that in my 12-person hypothetical, that would violate the Constitution, but a one-person hypothetical would not.

Mr. Gillis: My answer is that it's... and I hope I'm not quibbling... that it's not clear, with one person, whether this person is that type of person that would automatically--

Unknown Speaker: But I'm assuming in my hypothetical that the question is sufficiently unambiguous that you find that it is that kind of person, that the person just is the opposite of the Witherspoon-kind of person.

Some people are conscientiously opposed to the death penalty, some people sincerely believe that it's the correct punishment in every capital case.

And I'm just saying if you find one such person by a proper question, do you think the Constitution permits that person to serve on the jury?

Mr. Gillis: --The question in a State court of whether that violates fundamental fairness?

Unknown Speaker: Yes.

Mr. Gillis: I do.

I would not... I wouldn't let that person sit.

But I think in the realistic setup that we find ourselves in, that--

Unknown Speaker: Suppose enough of the facts are described.

I mean, let's say Adolf Hitler is put on trial, and the jury knows there is somebody who's been guilty of the murder of millions of people.

All right?

And you think it would be fundamentally unfair if all 12 jurors thought, gee, you know, I don't frankly care what mitigation you want to put in, death penalty is appropriate for this, and that's the way I'm going to vote.

That's a basically unfair trial?

Mr. Gillis: --Well, no, I think in that case we've assumed some knowledge about the facts, which raises another issue.

Unknown Speaker: Well, not all the mitigation.

You don't know anything about mitigation at all.

All you know is more than that it's first degree murder.

You know the number of murders.

So you're relying on the fact that only... it's when you only know the degree of the crime, is that it?

You cannot know anything more than this is murder.

What if you tell them it's a murder of eight people, and then you have a juror who says, if he killed eight people, he ought to die.

That's unfair.

Mr. Gillis: I think that the inquiry is about whether they could keep an open mind, follow the instructions that the judge gives them.

Unknown Speaker: I can't keep an open mind if this person has killed several million people.

Does that make me a biased juror?

Mr. Gillis: I think that juror is assuming knowledge about the facts in the case.

Unknown Speaker: Certainly... by the way, Illinois bifurcates the penalty hearing.

Mr. Gillis: Yes.

Unknown Speaker: First into finding the statutory aggravating circumstance, and his age?

Mr. Gillis: First, it's to find if he's eligible--

Unknown Speaker: Yes.

And then the second phase is whether or not--

Mr. Gillis: --there's any mitigating factors.

Unknown Speaker: --Well, that phase, though, is for deciding whether he will get the death penalty.

Mr. Gillis: That's correct.

Unknown Speaker: And there the judge specifically instructs him that they have a duty of following every instruction.

Mr. Gillis: Yes.

And this judge, particularly he asked nine of the 12 jurors that question.

One other one said he would answer similarly to all the other questions, and that the subject of following the law was mentioned throughout the voir dire process in this case, which had three venires brought to the courtroom.

If there are no other questions, we would ask the Court to affirm the conviction and sentencing.

I thank you.

Unknown Speaker: Thank you, Mr. Gillis.

Mr. Andrews, you have four minutes remaining.

Rebuttal of Allen H. Andrews, III

Mr. Andrews: Thank you, Your Honor.

Very briefly, in response to the question about whether the State has a right to inquire of these people whether they could indeed impose a death penalty, in Lockhart v. McCree, this Court said that if these jurors could not make a guilt/innocence decision because of their feelings on the death penalty, ipso facto the State is entitled to inquire as to whether or not they are automatically against the death penalty.

And that's all we're saying here.

Unknown Speaker: Was that dicta, do you suppose, in that case?

Mr. Andrews: It conceivably could have been, but it is very persuasive, it makes sense.

We're not here to quibble with the State's right to exclude these jurors who can't follow the law.

And it fits with our position that indeed if they can't follow the law, they shouldn't be on the jury.

Now, the State also talked about the mechanisms were in place--

Unknown Speaker: The State's complaint in Witherspoon was not that the juror would never impose the death penalty at the penalty stage.

It was rather that a jury who was that much opposed to the death penalty would not convict, right?

Now, the defect that you claim in this case would not produce a juror who would come out the wrong way on the guilt phase, would it?

Mr. Andrews: --Not according to the State, no.

Unknown Speaker: Well, tell me, is the State wrong about that?

Why would a person who--

Mr. Andrews: No, this Court has said that--

Unknown Speaker: --Am I going to convict somebody just so I can impose the death penalty on somebody?

Mr. Andrews: --I would not think so, no.

Unknown Speaker: I wouldn't think so.

Mr. Andrews: No.

Unknown Speaker: So Witherspoon is really a different situation.

You have a juror who cannot deliberate impartially on the guilt phase.

Mr. Andrews: That is only part of the Witherspoon decision.

But what is important is that when they can't deliberate on any phase, you ipso facto get to ask the question to reveal that.

In any event, it is that you get to ask the question, not what phase it is.

In this case, talking about the mechanism in this case, one of the jurors said, equivocally, according to the State, look, I'd always impose a death penalty.

Well, with the mechanism that was in place in this trial, there was no further inquiry.

The trial judge didn't ask him what you mean, sir, or anything like that.

Under the trial court's discretion there was absolutely no further inquiry, where at least... because he didn't have to.

If he didn't--

Unknown Speaker: Do you say that for every possible challenge for cause there must be voir dire directed to that possibility?

Mr. Andrews: --No.

We would limit it to a case like this where it just determines the ultimate issue before the court, where they would give them the death penalty.

This is the ultimate issue.

That makes it different from race, beards, anything else.

Unknown Speaker: How about bias or partiality?

Mr. Andrews: Even with bias and partiality, that's almost always covered in any event.

Unknown Speaker: Well, but supposing a trial judge didn't cover it?

Do you say there would be constitutional error for him not to allow some sort of a voir dire on that subject?

Mr. Andrews: It could be constitutional error.

That might go back to the special circumstances that might be required that would indicate that there was some need for the inquiry.

But here, where it goes to the ultimate issue, that is the special need.

That is why we need the inquiry with this specific type of bias.

No further questions?

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Andrews.

The case is submitted.

Unknown Speaker: The Honorable Court is now adjourned until tommorow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Ross v. Oklahoma - Oral Argument

Wed, 13 Apr 2011 20:11:02 +0000

Case:

Ross v. Oklahoma

Media File:

86-5309_19880119-argument.mp3

Related Transcript:

86-5309_19880119-argument.xml

Transcript:

ORAL ARGUMENT OF GARY PETERSON, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 86-5309, Bobby Lynn Ross versus Oklahoma.

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

Gary Peterson: Thank you, Mr. Chief Justice, and may it please the Court.

The issue in this case is whether it's constitutional for a State to take away a preemptory challenge from a defendant in a capital case, to take it away by forcing him to use it to remove a juror from the jury who should have been removed for cause because he was unable to consider a life sentence.

This case was the type of case historically in which preemptory challenges have been regarded as most valuable.

The defendant was black, he was charged and tried in a virtually all white community for the murder of a white police officer.

The trial judge specifically found that the defendant's race was an issue in the trial.

Unidentified Justice: Had there been a change of venue granted?

Gary Peterson: Yes, there was.

It was moved to the next adjoining county.

The case had received a lot of publicity before trial.

Unidentified Justice: Whereabouts in Oklahoma was it?

Gary Peterson: This was in western Oklahoma, far western Oklahoma about 150 miles west of Oklahoma City.

Although he tried to kind of remedy the publicity by changing the venue, it turned out not to be... the crime occurred in Elk City, Oklahoma.

Unidentified Justice: Elk?

Gary Peterson: Elk City.

Unidentified Justice: That's way out in the panhandle, isn't it?

Gary Peterson: Well, it's on Route 66 in western Oklahoma.

The case was actually tried in Cheyenne, Oklahoma, which is a little town of 1300 people about 30 miles from Elk City.

He tried to remedy the publicity by changing the venue but it turned out really not to have very much effect.

Almost all the jurors that were called had heard about the case and it appeared not to have been a very effective move.

There was a real danger of prejudice against the defendant under these circumstances, and challenges for cause or not an infallible way of obtaining an impartial jury.

There's a real risk that some prejudice jurors are going to get by challenges for cause, are going to get by voir dire, and are going to get on the jury.

That's where preemptory challenges are valuable.

Unidentified Justice: Well, how many were given here?

Gary Peterson: Nine.

Unidentified Justice: Pardon?

Gary Peterson: Nine in first degree murder statute.

Unidentified Justice: Right.

And your argument essentially is that one of them had to be wasted to remove the juror who should have been removed for cause anyway.

Gary Peterson: That's right.

Unidentified Justice: Now, you don't deny that Oklahoma could have provided only eight to begin with, or maybe even only what, two to begin with?

Was there any obligation to provide any preemptory challenges at all?

Gary Peterson: No, there's not.

Unidentified Justice: None at all.

Gary Peterson: There's only an obligation to have an impartial trial, but I don't think that there's any particular number that's required by the Constitution.

Unidentified Justice: So your contention is that it violates fundamental fairness to give him only eight instead of nine, that's what it comes down to?

Gary Peterson: That's right.

I think the State legislature has to make a judgment of how many preemptory challenges are needed in a particular State to secure a fair trial.

Pretrial publicity, the news media may be more pervasive in one State than another.

Juror qualifications may be higher in one State than another.

So I think the fact that some States may have a smaller number of preemptory challenges doesn't necessarily answer the question.

I think the only way that we can be sure that the defendant received due process is if he got the statutory number that's allowed.

Unidentified Justice: What if the Statute allowed the prosecution ten challenges and the defense nine?

Gary Peterson: I think we have a problem with that.

That's kind of a Wardius v. Oregon situation where there are non-reciprocal benefits where the State has a procedural edge on the defendant in conducting a trial.

Unidentified Justice: What provision of the Constitution do you think would be violated by that, if any?

Gary Peterson: The due process clause.

Wardius v. Oregon was a situation where a notice of alibi statute applied only to the benefit of the prosecution and not to the defense, and the Court held in that situation that it was a denial of due process.

And we think the same argument would apply here.

Unidentified Justice: Well, what if the Oklahoma legislature had found in connection with enacting a statute, like Justice O'Connor poses, that we'd looked into all the jury challenges that have come up in Oklahoma, and on the average, we think the typical juror is a little more prejudice in favor of the defendant than in favor of the State.

And therefore, we think we have empirical basis for saying that a ten/eight ratio will put them back to parity.

Gary Peterson: It's hard for me to square that with Wardius v. Oregon, and I guess the legislature in Oregon concluded that the defense doesn't need this discovery as much as the prosecution does.

I don't think it's fair and I think that no State gives the prosecution more preemptory challenges than the defendant, and a lot of States give the defense more.

Unidentified Justice: And that's how we decide.

We say, is it fair, the way you do, is that how we decide this case?

Gary Peterson: Well, I'm not sure that the question of ten versus nine really controls this case.

I think the due process clause question turns on whether there's been a statutory right that's important enough that's been denied in this case that is entitled to the production of the due process clause.

Unidentified Justice: Well, if you had eight challenges and one of them was just like this and you used the preemptory on that one, and you didn't use any of your other preemptories?

Gary Peterson: I think it's easier to find harmless error in that situation, if the defendant didn't really need the preemptories in the first place, it's hard to see how it really harmed him to have to use one on this particular jury.

Unidentified Justice: And the difference between that one and this one is?

Gary Peterson: In this case, the defense used all their preemptories and asked for more, and didn't get them.

Unidentified Justice: Did you ask for more preemptories?

Gary Peterson: The defense lawyer asked for additional preemptories before the trial, but under our law in Oklahoma, the trial judge couldn't do it.

Unidentified Justice: I know, but he didn't after this event, and he passed every juror, didn't he, that proceeded?

Gary Peterson: He didn't try to prove challenge for cause against any of the jurors that were seated.

Under our law, the trial judge could have given him more than nine preemptory challenges and he denied it once before and the law hadn't changed between the time of the pretrial ruling and the time of the stay.

Unidentified Justice: Well suppose the judge, do you think, couldn't the Judge have, if he'd have asked and argued, the Judge could have changed his mind on disqualifying for cause, and in which event, the eight preemptories wouldn't have been exhausted.

Gary Peterson: I think that the defense attorney had to accept the trial judge's ruling for whatever it was.

Unidentified Justice: Counsel, you've been speaking of due process.

I thought your case also rested on the Sixth Amendment?

Gary Peterson: That's true.

We have two arguments in this case.

One is that the rule of Oklahoma procedure that requires you to use an preemptory challenge in order to remedy a Sixth Amendment violation in order to enforce the right to a Sixth Amendment impartial jury penalizes the exercise or the enforcement of the Sixth Amendment right.

Unidentified Justice: Because in this case, you came up with a different jury than you would have had had the Judge ruled correctly?

Gary Peterson: It could have been a different jury if the Judge ruled correctly.

Unidentified Justice: Well, isn't it almost inevitable it would have been?

Gary Peterson: The defense attorney certainly wanted more preemptories and I think if he'd had them, he would have used them.

Unidentified Justice: Like one more?

Gary Peterson: He wanted one more.

Of course--

Unidentified Justice: Does the case go off on more preemptories?

Doesn't it go off on the proper use of such preemptories as were available to him?

He had nine and he wanted the Court properly to permit him to use them?

Gary Peterson: --That's right.

Unidentified Justice: I think we're going down a blind alley when we speak of different numbers of preemptories.

Gary Peterson: The juror who was challenged for cause in this case.

I don't think there was much dispute that he should have been removed.

He said twice that he was going to return the death penalty upon conviction.

He went on to say that he wouldn't consider any other possible penalty.

The Oklahoma Court of Criminal Appeals specifically found that his responses were unequivocal, and that it was error to seat him.

Unidentified Justice: Aren't we bound by that finding?

Gary Peterson: I would say since our argument depends on a finding of a Sixth Amendment violation, that the Court has the power to examine the facts and redetermine it.

There's certainly no reason to.

I think that it's clear that his answers were unequivocal and the Oklahoma Court was certainly right in its finding that it was error.

Unidentified Justice: This is not a First Amendment case, this is a Sixth Amendment case.

I would have thought that finding was binding.

Gary Peterson: We would be happy if the Court considered it to be binding.

Unidentified Justice: Of course, that juror was not, I mean, he was seated but didn't participate in the trial, right?

Gary Peterson: That's right.

Unidentified Justice: Because one of the preemptories was used to eliminate him, so basically what you're... we really don't know what the effect of this was.

You're saying one other juror might have been challenged for cause who... you're not asserting that any of the jurors that were on the jury was known to be biased on in any way contrary to your client.

You just think if you had one more preemptory, it would have been nice.

Gary Peterson: We don't know if any of the other jurors on the jury were impartial or not.

We do know that the defense attorney thought they were not impartial, because he specifically said that at the end of the jury selection.

And of course, that's the type of situation where preemptory challenges are most valuable, when the defense attorney thinks the jurors are biased but can't sustain a challenge for cause.

So we think that the laws of a preemptory challenge in the situation here was harmful.

It wasn't an option for the defense attorney just to leave this juror on the jury and complain about it later on appeal.

Under our Oklahoma procedural rule, he had to use a challenge on him in order to preserve the right.

If he had not used a preemptory challenge on this juror, he would have really been stuck with the result of the trial which was with a biased juror.

Unidentified Justice: So there's no remedy at all then, effectively?

Gary Peterson: As the Oklahoma Courts have treated this, yes, that's right.

On the question of harmless error, Chapman v. California says that the burden of proving that a constitutional error is harmless is on the beneficiary which is the State in this case.

It also says that the burden of proof is proof beyond a reasonable doubt.

While we don't have to prove anything on the harmless error issue, we think that the evidence gives every indication that the error was in fact a harmful one.

There's no dispute that if the defendant had another preemptory challenge, he could have used it to change the composition of the membership of the jury.

Unidentified Justice: Yes, but might not the argument be made that in order to show the argument was harmful, or not harmless, you would have to show that the other juror would have done something different?

What you're talking about substituting one random juror for another really.

Each of them passes challenge for cause.

That one juror would have done something different than the one who was seated did?

Gary Peterson: I think the burden is on the State to prove that the randomly selected another juror whose identity we don't know, whose background, whose beliefs we don't know, would have done the same thing as the actual juror.

I think it's impossible for them to show that.

It's unclear that a harmless error analysis can ever be applied in a situation like that.

This Court's jury selection cases going back to Strauder v. West Virginia have never tried to figure out what another juror would have done, or how he would have decided the case if the Constitutional error in jury selection had not occurred.

I think it would be unprecedented for the Court to try to apply a harmless error analysis in that situation.

The evidence in this case was in conflict on the issue of guilt and the murder charge.

The defendant said that he did not intend to kill the decedent.

If a jury accepted that testimony, they would have to acquit him of murder.

And there is conflicting evidence on the sentencing issue as well.

Unidentified Justice: Did you represent the defendant on appeal?

Gary Peterson: No.

Unidentified Justice: Has there ever... was there any, at any time, a statement by the attorney for the defendant that had he had another preemptory, he would have used it, and he would have used it against Mr. X or Mrs. Y?

Gary Peterson: No, there was not, it's not in the record, no.

And of course, that's part of our argument on the harmless error case, is that that type of statement, even if it was made in the way that the Oklahoma Court asked for it, wouldn't prove anything.

Unidentified Justice: Well, it would prove something if the lawyer said, if a judge happened to ask the lawyer representing him on appeal, would you have used your preemptory to challenge anyone on that jury, and if so, who, and if he said, I wouldn't have used it, that's certainly harmless error, I suppose?

Gary Peterson: I agree, it would be harmless error in that case.

But what the defense attorney did in this case was simply--

Unidentified Justice: He didn't say anything.

Gary Peterson: --Well, he said he believed that the jury was not impartial and it was not fair.

I don't think that if he had identified a particular juror that he would have challenged, that it would have proven anything under the Gray v. Mississippi case.

The reason is that the error that the trial judge made happened in the sixth round of jury selection.

The statement that the Oklahoma court demanded a counsel that he didn't make would have been made after the ninth round.

If the sixth round had happened differently, if a judge had ruled differently, there could have been a bunch of different jurors on the panel by the time of the ninth round.

Unidentified Justice: But when the petitioner's lawyer said he didn't think the jury was impartial, he was talking not in any legal sense because he agreed they weren't subject to challenge for cause.

He just meant they weren't the kind of jury he would have liked to have try the case, don't you think?

Gary Peterson: I think what he meant was what he said that it was not a fair and impartial jury.

Perhaps he could not find evidence that he would need to sustain a challenge for cause.

Unidentified Justice: He was speaking at least of his intuition and something that he couldn't prove to the satisfaction of the judge?

Gary Peterson: Apparently so, that he did not have the proof.

Unidentified Justice: Counsel, was the procedural due process claim ever made below?

Gary Peterson: In some sense it was.

Certainly the Sixth Amendment claim was made more clearly, but counsel in the lower court did invoke Swain v. Alabama and some cases like that, which we think kind of recognize a due process right preemptory challenge.

Unidentified Justice: Mr. Peterson, I'm having some trouble with the notion that what constitutes harm is the substitution of one impartial juror, that is, lawfully determined to be impartial, not challengeable for cause, for another impartial juror.

Suppose that there's some error made by a judge that causes the case to be delayed, some legal error that causes the case to be delayed.

Because it's delayed, you get a different jury than you would have had had the case come up earlier.

Now, I assume it's impossible in that case also for the State ever to prove that the jury you would have gotten on the earlier date would have convicted you just as the jury you got on a later date is.

But I fail to see any constitutional violation there, and similarly here, it seems to me that once you've determined that you have seated a jury that is not challengeable by cause, that is fair and impartial, hasn't your client gotten substantial justice?

Gary Peterson: Well, in the trial delay situation, the defendant doesn't have a right to have a particular jury hear his case.

There's been no right relating to the composition of a jury.

Unidentified Justice: To a particular jury to hear his case in this instance either.

Gary Peterson: He does have a right to exclude particular jurors from the case as a result of a preemptory challenge, and the inevitable consequence of the right to exclude is the right to bring on somebody to replace him.

And I think that's a distinction.

Unidentified Justice: Well, I can think of a hypothetical under the legislation requiring criminal trials to be brought on for trail promptly, so you could say he's entitled to have a jury selected as such and such a date, and because of some error by the Government, he isn't tried in time, how could you ever prove that the different jury he got would not have come out to a different result?

Gary Peterson: One way to look at it, I guess, is the nature of the preemptory challenge right as opposed to some statute that just requires that a trial begin on such and such a date.

A preemptory challenge is a right that this Court, itself, has said that this is one of the most important rights secured to the accused.

Unidentified Justice: But here it's only a State law right, isn't it?

You're not contending that there's any Federal Constitutional principle that requires preemptory challenges?

Gary Peterson: That's right, but it's still an important right, and this Court has said so in its own decisions.

Unidentified Justice: Yes, but you agree that Oklahoma wouldn't have had to accord any preemptory challenges at all?

Gary Peterson: That's right.

It is an important right.

It has six and a half centuries of history behind it.

I think it is regarded as a basic, a fundamental right of the criminal justice system.

It's universally recognized in every State and Federal jurisdiction.

It's the type like the right of appeal that the Court considered in Evitts v. Lucy, that's a right that's important enough that the loss of it is a grievous loss.

It's the type of grievous loss that brings the due process clause into play.

Whereas, perhaps some other State procedure may not have quite the same magnitude and it may not be entitled to due process.

Unidentified Justice: Mr. Peterson, if there had been one preemptory challenge that the defendant didn't exercise, would you be here?

Gary Peterson: That's a harder case.

Unidentified Justice: You said there might have been quite a difference in the jury, there might have been several different jurors.

But what if there'd been one preemptory left over?

Gary Peterson: There are tactical reasons why a defense attorney might not want to use the last one, because if he uses the last one, the last juror that comes on he can't strike, no matter how unfavorable he perceives that juror.

I think it's a higher... it certainly would be a stronger case for harmless error than this one, but I'm not sure that the Court could say beyond a reasonable doubt that if he'd reserved one, that an additional preemptory challenge in the sixth round wouldn't still have changed the jury's composition.

The likelihood of a different outcome in a criminal case in Oklahoma if a jury membership is changed is especially strong on the question of sentencing.

The reason for that is that Oklahoma's laws do not require a unanimous verdict on the question of sentence, if the jury should decide to impose a life sentence, one juror, if that juror should become committed to returning a life sentence, can force the verdict of a life sentence.

The Judge has to discharge the jury if they disagree and return a life sentence, even if there's just one juror on that jury whose in favor of a life sentence.

The State cannot prove beyond a reasonable doubt that the additional juror who would have been brought on if another preemptory challenge had been used would not have been that juror.

And we think that that pretty much disposes of their harmless error argument, especially on sentencing, but that same juror could have led the whole jury to a different result on the whole case as well.

On the question of whether an additional preemptory challenge, if it had been available, would have been used in a way to change the jury's membership, the record shows that the defense lawyer did everything he could to get as many preemptory challenges as he could and use them all.

He used all the ones up that he had.

He tried to get some before... some extra ones before trial unsuccessfully, in view of the fact.

Unidentified Justice: Mr. Peterson, when did he use his last?

This occurred on the sixth round, when was the last one used?

Gary Peterson: The last one was used on the ninth round.

Unidentified Justice: Toward the very end.

Gary Peterson: There's every reason to believe that if he had had another preemptory challenge in the ninth round, he would have used it and it would have changed the jury's composition.

There were only two things he didn't do.

He didn't ask for more challenges after the Judge made his mistake; that would have been futile.

The Judge had already ruled that he wasn't entitled to them under the State law.

The only other thing he didn't do was make a statement about who he would have challenged if he'd had another challenge, which he didn't, which the Oklahoma Court said should have been made at the end of the ninth round.

If the sixth round had been played out differently, the jurors of the ninth round would have been completely different, so what counsel did or didn't say at the end of the ninth round doesn't prove what would have happened if the Judge hadn't made the mistake earlier.

And that's just, as we see it, is virtually the same as Gray v. Mississippi.

In Gray, the Court said that a statement by counsel about how he would have used his preemptory challenges if the Judge had ruled differently on the previous challenges for cause, just didn't have any value in determining what would have happened.

It didn't have any value in deciding whether harmless error occurred or not.

And we think the same ruling should be applied here.

Unidentified Justice: Mr. Peterson, the harmless error requirement is not under the due process part of the case, right, but under the Sixth Amendment?

Gary Peterson: As we see it, the harmless error analysis has to be gone through at least in some way no both.

Unidentified Justice: Well, how does it work under the Sixth Amendment, what he was deprived of under the Sixth Amendment, you say, was an impartial jury, by seating the biased juror incorrectly, right?

Gary Peterson: No.

What we say on the Sixth Amendment argument is that the state impermissibly burdened the enforcement of the Sixth Amendment right by requiring the defendant to use up preemptory challenges, all of them, in order to preserve his right to obtain appellate review on the seating of a jury that was biased.

It's kind of like Griffin v. California or those cases where the State has put some type of burden on the defendant's exercise of his right.

Unidentified Justice: But that assumes you have a Federal right to nine preemptory challenges.

Don't I have to accept that in order to agree with that analysis?

Gary Peterson: No.

I disagree.

I think it just depends on what kind of right you have in the State.

If the State says you have nine challenges, and as a condition of enforcing your Sixth Amendment right, they say, well, in that situation, you're only entitled to eight, I think they're burdening the exercise of the Sixth Amendment right, the enforcement of the Sixth Amendment right, I think that's an unconstitutional burden.

Unidentified Justice: Any time in jury selection where a judge refuses to disqualify this or that juror for cause, and the defense uses preemptories, then it's just open to have a court say well, the trial judge was wrong in seating those jurors and making the preemptories be used.

Gary Peterson: Well, the State doesn't have to have a rule that says you have to use preemptories to correct this kind of error.

In fact, a lot of States don't.

Unidentified Justice: Well, it's a pretty poor risk, I suppose, but you wouldn't have needed to use your preemptories against those people and you certainly then could have had review of it.

And you had review of it anyway in this case.

Gary Peterson: If he hadn't used the preemptory challenge on Mr. Huling, it would have been waived.

It could not have been reviewed by the appellate court.

And there's a lot of decisions where they've said, we refuse to review it because you didn't exhaust your preemptory challenges, you had the ability to +/-

Unidentified Justice: Well, in any event, any time the judge makes a mistake in refusing to ask a juror to step down for cause, any time he makes a mistake and a preemptory's used, then we've got this kind of a case.

Gary Peterson: If the State elects to enforce that type of rule where defendants have to use their preemptory challenges to correct the judge's error.

If they don't do that, there's no problem.

The defense can simply make a tactical decision about whether to remove the juror and if he doesn't, he can argue about the juror as impartial, and if he does, there's probably going to be a--

Unidentified Justice: Well, he's taking a terrific risk I suppose in that way.

Gary Peterson: --That's true.

Unidentified Justice: In a death case.

Gary Peterson: That would be a difficult choice to make.

Unidentified Justice: What if a judge wrongfully under State law excuses someone on a hardship claim.

Now, does that raise the same kind of problem?

Gary Peterson: With respect to our due process clause claim, I think it does.

I think that what our argument depends on is that there is an error of State law and that the judge didn't follow it.

Unidentified Justice: That's all it takes to make a Federal due process claim.

Gary Peterson: If the State Court requires that the defense use up preemptory challenges to remove these challenged jurors, I think that a mistake by a judge that takes away something valuable like a preemptory challenge is a denial of due process.

That was what the Court held in Hicks v. Oklahoma.

Unidentified Justice: Well, what if in the case I hypothesized, the trial judge says this person is granted a claim of hardship exemption.

You say that's a violation of State law and you appeal to the Oklahoma Court of Criminal Appeals.

That Court says, no, it wasn't a violation of State law.

Do you think you can bring that question here, was it a violation of Oklahoma law to excuse that person saying that the Oklahoma Court improperly construed Oklahoma law?

Gary Peterson: I think the Court is going to have to give a very high degree of deference to what a State Court says it's State law is, and I think that the only situation that the Court is going to come... that's going to come up here, is when the State Court says, yes, this is State law but we're just not going to follow it.

Unidentified Justice: Your claim here I thought was the trial judge's refusal to disqualify that juror was a violation of Federal law?

Gary Peterson: Analytically, I don't see that it matters on the due process claim what the reason was that the judge had for his mistake as long as it was mistake.

It happened that the mistake in this case was a Sixth Amendment violation.

Our other argument about the burden that the State put on the Sixth Amendment right of course depends on there being a Sixth Amendment violation.

Unidentified Justice: Mr. Peterson, don't you think one reason that States may have as many as nine preemptory challenges is that it's always a close call whether somebody ought to be excused for cause or not?

Don't you think that one of the very reasons is that sometimes a judge may make a mistake, let somebody on... refuse to strike somebody for cause who ought to be and therefore we give you nine preemptories.

If he makes such a mistake, then one of those--

Gary Peterson: I think the reason the number is nine is that our legislature felt it was needed to empanel an impartial jury and that defendant should have all nine.

Unless there are further questions, I'll save the rest of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Peterson.

We'll hear now from you, Mr. Nance.

ORAL ARGUMENT OF ROBERT A. NANCE, ESQ. ON BEHALF OF RESPONDENT

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

The petitioner in this case was convicted of armed robbery and capital murder for the execution style slaying of a police officer.

As the petitioner left the scene of the robbery, the police officer drove up and the petitioner shot the officer three times in the head with a 25 caliber pistol.

Unidentified Justice: Are these facts really very important?

Mr. Nance: They are to the extent that if we get into harmless error, and I'd be happy to defer any presentation on that until the harmless error point comes up.

Unidentified Justice: I think we can all agree that it was an offensive murder.

Mr. Nance: Well, it was offensive and to the extent that petitioner's counsel has said there's a doubt about the guilt or it was a close case, I need to emphasize that it wasn't.

The murder weapon was found in his pocket less than half an hour later.

He confessed.

The officer's stolen service revolver was found right next to him in the car.

The stolen money and the deposit slips from the motel were found in the car.

He was identified as one of the robbers and his footprint was found near the scene.

There's really in this case no question about his guilt.

I'd also like to emphasize two things.

That this is not a Witherspoon case in which a death prone jury has been empaneled.

Nor is it a case when any member of any racial minority has been improperly excluded from the jury.

As some of the earlier questioning pointed out, all of the jurors who sat were accepted for cause by the defense.

I think that means that the defense was satisfied at the time of trial, that there was no biased juror or no juror who was legally disqualified to sit in this case.

The Court has repeatedly stated, and I understand counsel to have conceded that there is no Federal right to preemptory challenges.

That that is a State-created right, and not a Federally created right.

Unidentified Justice: Do you also concede that it was error for the Judge not to have excused this particular juror for cause?

Mr. Nance: I do, Justice O'Connor, I concede that's error.

I'd very briefly like to summarize why we think this Court should--

It was error not to exclude Juror Huling.

Unidentified Justice: What kind of an error?

Mr. Nance: Your Honor, I think it was an error in the common law preemptory challenges.

I don't think it was an error of constitutional dimension at that point because the final trial jury had not yet been set.

It was just a preliminary ruling in the jury selection.

Unidentified Justice: Suppose that... suppose there were no preemptories and the Judge refused to disqualify that juror and he sat?

Mr. Nance: If he sat, Your Honor, I think we would have a Witherspoon problem in this case.

And I think given the ruling of the Criminal Court of Appeals, there would have been a reversal at that level.

But as it turned out in this case, the preemptory challenge acted something as a self-correcting mechanism as it is required to be under Oklahoma law.

The petitioner has cited several cases and has correctly stated the law.

In Oklahoma, you have to use a preemptory challenge.

Unidentified Justice: Under the opinion of the Court of Appeals, if this had been the ninth juror with his ninth preemptory up, what would he have done?

He's used up nine preemptory challenges and this man comes up and says this.

Under the opinion of the Court of Criminal Appeals of Oklahoma, wouldn't he have had to do something?

It said it was error?

Mr. Nance: He would have had to make his challenge for cause which I think Justice Marshall, you assume he did.

Unidentified Justice: Well, he did, and the Court said, no.

Mr. Nance: Then in that case, Your Honor, I think the Court of Criminal Appeals would have reversed.

Unidentified Justice: That's what I think too.

And is it not true that there would have been reversal because there was a Federal Constitutional error?

Do you think that it would be consistent with the Federal Constitution to seat this juror?

Mr. Nance: Oh, no.

I think not.

Unidentified Justice: So at the time of the trial judge's error, although it may well have been harmless because of later events, at that time, he did commit a Federal Constitutional error?

Mr. Nance: Your Honor, I think not.

Because I think... well, under an old case of this Court, Ex parte Spies which was decided in 1887, a similar thing happened.

There was a challenge for cause which was denied.

The Court at that time said that because that person had been taken off by preemptory, there was no violation.

I think that is and should be the rule--

Unidentified Justice: The error isn't complete yet.

The error isn't complete until the juror is finally picked and seated.

Mr. Nance: --I think that's correct, Your Honor.

And in Spies, the Court went on to discuss two jurors who were seated, but didn't discuss the ones who were not.

That's an older preemptory challenge case.

Also, the petitioner cites a case called Pointer v. United States in which this Court affirmed a conviction when the defense and the Government simultaneously presented their challenges and they could have overlapped.

And the defense argued that they had been deprived of some of their challenges or at least potentially so.

And the Court said, no, you had your 20 challenges, you had your right, and it was affirmed.

The Oklahoma, as I say, petitioner correctly states, you have to use your challenge to remove a biased juror.

It is not, as the petitioner kind of suggests, an unconditional right that unconditionally must always be given.

The petitioner cites several cases.

I have one which I've shared with the petitioner that's not the briefs.

I might invite your attention to the Stott case which is at 538 P. 2d 1065, where a similar situation happened here.

And the Court of Criminal Appeals cited an even older case from 1908 for the proposition that if there has been an error on a challenge for cause, you're still required to purge that juror with a preemptory challenge.

And I think that that is a sensible rule.

It's sensible for both the State and for the defendant.

It's sensible for the State because it eliminates errors early on.

You don't have to worry about having tried a case perhaps futilely with a reversible error in it.

It's as I said before, a self-correcting system whereby these errors can be fixed early.

And it's beneficial to the defendant in the sense that it requires a defendant to act in his own best interest and remove that potentially biased juror from his jury.

Unidentified Justice: I don't understand what the relevance of this is?

Are you saying that it's the law of Oklahoma not that you have nine preemptory challenges, but that you have nine or however many less than nine may remain after you use those that you're required to use to correct judge's errors in seating jurors, is that what the law is?

Mr. Nance: Your Honor, it's relevant, I believe, because of one of the arguments made by petitioner under Logan v. Zimmerman Brush which was in that case, the State law created a right to a hearing and that that right had been deprived by an established State procedure essentially a short statute of limitations to set a hearing.

There is established State law here that you have to use a preemptory, but unlike in Logan, in Logan it was arbitrary, it was irrational and almost bizarre that the plaintiff didn't get his handicapped employment hearing.

In this case, the State of Oklahoma has a rational reason for what it does.

That's the distinction and really the only reason I bring it up.

The petitioner also relies on Hicks v. Oklahoma, which I'd like to distinguish very briefly.

In Hicks, this Court reversed a decision of the Oklahoma Court of Criminal Appeals because the Oklahoma statutory right... not a constitutional right or a direct constitutional right... but there was an Oklahoma statutory right to jury sentencing, and the Court in that case said that the due process clause would protect that statutory right because it created a substantial and legitimate expectation that you would not be deprived of your life and liberty in that case except by a jury.

We think that the provision of preemptory challenges doesn't create such a substantial and legitimate expectation of practical control over a deprivation of life or liberty.

The petitioner's rule, I think, as Justice White pointed out, would almost require a trial judge to be perfect in his rulings for cause, because if he made a mistake and then the defendant had to use a preemptory challenge on that, there would be necessarily constitutional error.

I don't think that that's a good rule, and I don't really think that is the law.

Unidentified Justice: Mr. Nance, would Oklahoma law have allowed the Trial Court to give a tenth preemptory challenged?

Mr. Nance: Your Honor, it would not have allowed tenth preemptory, although I concede I have no cases on it, I think it would have allowed the Judge to have the inherent authority to reverse himself on Juror Huling, if the trial counsel had made that argument.

Unidentified Justice: Did the Court below find some procedural bar in this case because of the failure of defense counsel to do something at the end of voir dire?

Mr. Nance: It really didn't that I'm aware of.

It went ahead and ruled on the issues, and then basically said there was no ground for reversal.

Contrary to some of the petitioner's suggestions, there isn't any evidence in this record that trial counsel would have wanted or would have needed an additional preemptory after Juror Huling came up.

Unidentified Justice: But the Court of Appeals did say it was error.

Mr. Nance: It did indeed, Your Honor.

Unidentified Justice: Well, are you saying it's not error?

Mr. Nance: Well, the Court of Appeals said it was error to seat him because he had been taken off by--

Unidentified Justice: It said the Court was in error.

It didn't draw any limitations on it.

It said the only excuse was that preemptory was available.

That was the only excuse.

Mr. Nance: --Well, that's essentially what it said, Your Honor.

Unidentified Justice: That's essentially what they said.

So I don't appreciate any of your argument that it wasn't error.

Well, you agreed that it was error.

Mr. Nance: Well, yes, it was erroneous to seat him, although in my view, it's not a constitutional error as it turned out because the preemptory cured it.

If I was unclear in what I said before, I apologize.

I think that the self-correcting mechanism of the preemptory saved a Witherspoon violation in this case.

Unidentified Justice: Well, what would happen if the Judge just never granted cause, and so you had to use your nine preemptories.

Would that violate anybody's law?

Mr. Nance: Your Honor, I think it would, or could, at least.

Unidentified Justice: Whose law?

Federal or State?

Or both?

Mr. Nance: Both, and this Court, of course,--

Unidentified Justice: So this is just one-ninth of that?

Mr. Nance: --That's right.

I think the proper standard, because the preemptory challenges are State created rather than Federally-created rights, is did it make the trial fundamentally unfair, did it so affect the proceedings as to make the trial fundamentally unfair.

In your hypothetical, Justice Marshall, it's conceivable that if you just never got a challenge for cause sustained, and you had to use each and every one of your preemptories,--

Unidentified Justice: It had to be removed because of publicity, didn't it?

Mr. Nance: --That is correct, from one county to another.

Unidentified Justice: And the county they moved it to was the county that the defendant's lawyer said, please don't send it to?

Mr. Nance: It was one of several that he did not want.

The trial judge had to move it somewhere and he just made a call to send it to Roger Mills.

The trial judge did, Your Honor, on his own motion, remove three jurors who had been exposed to publicity and didn't feel like they should sit.

And he did remove on the defense challenge for cause three more.

I don't really have any sense in this case that the trial Judge was biased, or there's any allegation that the trial judge didn't do anything right except this one call.

Unidentified Justice: May I ask one question.

I know there's no Batson issue in this case.

This was an all white jury and a black defendant and a white victim?

Mr. Nance: That's correct.

Unidentified Justice: If there had been another preemptory, is there any possibility the racial composition of the jury would have been different?

I don't know how many blacks were on the panel, but conceivably, that could--

Mr. Nance: It doesn't appear in the record.

it's my understanding there were no blacks on the panel, Your Honor.

Unidentified Justice: --No blacks on the panel at all, I see.

Mr. Nance: And it's again not in the record, but I have consulted the census figures for 1980 for that county.

There were 4,799 residents in 1980 and there was only one black resident.

Unidentified Justice: I see.

Mr. Nance: Now, this case was tried three years later.

That could have change a little bit.

Unidentified Justice: So my hypothesis is very unlikely on this?

Mr. Nance: It is, Your Honor, I think, if you're hypothesizing there could have been a black waiting in the wings.

Unidentified Justice: It's unlikely that there might have been a little prejudice around?

Mr. Nance: No, I'm saying it's unlikely that just by the luck of the draw, there would have been black jurors ready in that county to come on.

There is no allegation here that black jurors were excluded improperly, either from the veneer or from the trail jury.

Justice Stevens is correct.

We don't have a Batson problem here.

Back to the trial counsel, he did not argue as he could have been that the ruling for cause was incorrect, and he did not ask to have the preemptory challenge returned to him.

And his only compliant afterwards was that the jury contained no blacks and that he thought his client couldn't get a fair trial from a jury of his peers.

Although again, I hasten to say, there's no Batson problem with improper racial exclusion here.

The Court has stated that the Constitution presupposes a jury chosen from a cross section of the community is impartial if the jurors can conscientiously and properly discharge their duty under the law.

As I understand petitioner's argument in this case, there is no argument that it wasn't selected from a cross section, or that the jurors weren't impartial or able to do their job.

Basically, the petitioner wants a reversal without any showing of prejudice.

We think that would be senseless, it would be wasteful, and it would particularly be senseless and wasteful if there was no violation of the Constitution.

I'd like very briefly to distinguish the Gray case which petitioner relies on.

In the Gray case, there had been, unlike this case, a Witherspoon error, that is, there had been a juror improperly excluded and at least theoretically, there had been a tribunal empaneled to return a verdict of guilt.

In that case, this Court said that there could be no harmless error, and if the error itself caused any change in the composition of the jury, it would have to stand.

I think the petitioner's rule of automatic reversal in this case wrenches that no-harmless-error language from Gray from its foundation of a Witherspoon error and wants to engraft it in this case where there has been no such error, and no such death-prone jury empaneled.

This Court stated that when a juror is tried to an impartial tribunal and there's no serious argument that this jury was not impartial, and when a defendant has counsel, and of course, this defendant had good counsel,--

Unidentified Justice: Still have three judges on the Court of Appeals?

Mr. Nance: --There are three now, Your Honor.

It's scheduled to be expanded--

Unidentified Justice: I notice there were only two here.

Mr. Nance: --Only two sitting, that's correct.

Unidentified Justice: But they usually have three, don't they?

Mr. Nance: Yes, sir.

Where there's an impartial jury and defendant has counsel, this Court has stated, you can presume any other errors are subject to harmless error analysis.

I want to hasten to say I don't think there's been a constitutional error, and I only address this because it's part if the petitioner's argument, and should you disagree with me, I certainly want to get--

Unidentified Justice: Why did the Court below think there was harmless error?

Mr. Nance: --It didn't really resolved it.

It didn't say harmless error.

Unidentified Justice: What did it say?

Mr. Nance: It said that because there was no juror who was objectionable sitting, there was no ground for reversal.

Unidentified Justice: So in effect, they said the exercise of the preemptory removed any harm from the error?

They didn't say that.

Mr. Nance: That's not explicitly what they said.

It can be read to say that.

Unidentified Justice: But they didn't say that the evidence was so overwhelming that it's beyond a reasonable doubt any juror would have arrived at the same result?

Mr. Nance: No, they did not say that.

Unidentified Justice: Mr. Nance, would it not be true that the same reasoning, if you say, well, the jury that was empaneled was all free of bias because there's no challenges for cause, that you could give the same answer if the Judge had simply said, I think I'll only let you have seven preemptories, and the other have nine.

I know the law requires nine, but I'm only going to give you seven because I think you only really need seven in the facts of this case.

Because his ruling on this particular denial, it seems to me, was rather flagrantly wrong.

And that would be a rather flagrant error too.

Wouldn't the reasoning say that you haven't shown that your jury was not impartial, so that's just too bad?

Mr. Nance: I think that would be worse than what we have here, Your Honor.

Unidentified Justice: Why?

Mr. Nance: Because on the hand, more like Logan v. Zimmerman Brush, that would just be an arbitrary and irrational sort of thing for a Judge to say.

Unidentified Justice: Well, this is pretty extreme here.

He says, the juror says no matter what the evidence shows, I'm going to vote for a death penalty.

You don't want jurors like that on juries, do you?

Mr. Nance: Absolutely not.

Unidentified Justice: So it seems to me you cannot have a much more flagrant error in denying a challenge for cause than that, and I don't see why that's so different from saying I think that the jury that's on there is a pretty good sound jury, they're all local citizens that are unbiased, and I think you only need eight preemptories.

And why would you reverse that one, I don't understand, if you apply the reasoning of the Oklahoma Court of Appeals?

Mr. Nance: Well,--

Unidentified Justice: They might reverse it in the State Court, but do you think it would violate the Federal Constitution?

Mr. Nance: --I think it would come to a point, and quite frankly, Justice Stevens, I don't know where on the countdown from nine, I would say it happened, where it could infect the whole proceeding and make if fundamentally unfair.

If a judge gives no reason, an there is no reason for his action, and assuming, you know, that no bigot or no--

Unidentified Justice: Mr. Nance, I just also thought of another consideration.

I don't know if it's a legitimate consideration.

I'd like your reaction to it.

Is the appearance of fairness in capital trials of this kind of any Federal significance.

In other words, is there some value at stake in making the community feel that the trial has been conducted with a completely even hand before a man is sentenced to death?

Mr. Nance: --There is, Your Honor.

I think this Court has said the appearance of fairness is important.

The Court, of course, has also said that reversing for inconsequential errors would cause the public to criticize the judicial process.

I think that a reversal in this case would be closer to the second problem.

I think the public would have difficulty understanding why in a case where the defendant is so obviously guilty and the trial so obviously fair, there has been a reversal over--

Unidentified Justice: That isn't what the Court below said.

Mr. Nance: --Well, on the whole, they said the trial was fair.

I think, as I was going to say, the public would have a hard time explaining or understanding a reversal over one preemptory challenge.

I think that would just cause them puzzlement and I think it would also cause criminal defendants--

Unidentified Justice: You're for fundamental justice?

Mr. Nance: --Yes, sir, and I think this was a fundamentally fair trial.

Unidentified Justice: And where in the world do you find that in the Constitution or any place else?

Mr. Nance: Well, Your Honor, I find it in cases like Donnelly v. DeChristofor where this Court says that when an error not specifically of constitutional origin like I think we've conceded here, about preemptory challenges, only merits reversal--

Unidentified Justice: Well, fundamental justice says there's no constitution is needed.

Fundamental justice is what the people want.

And you said, yes.

I don't think you mean that.

I'm sure you didn't.

Mr. Nance: --You are rapidly persuading me that I didn't mean it, Your Honor.

What I meant was--

Unidentified Justice: You're worried about a sentence of death plus life.

How do you do that?

How do you execute both of those sentences?

Mr. Nance: --Well, I don't know, Your honor.

I guess if you execute the death, the life sentence becomes moot.

But when I think of fundamental fairness, I think of cases like Donnelly where unless the error infects the whole trial and makes it fundamentally unfair, there's no justification for reversal.

And I really think that's the standard in the present case.

The central purpose in a criminal trial is the fair and rational determination of guilt.

That was certainly done here.

Guilt was fairly and accurately established in both phases.

In the guilt phase, virtually everyone who knew anything first hand about the crime had a chance to testify.

In the sentencing phase, both sides had an opportunity to put on their testimony either in aggravation or in mitigation.

Unidentified Justice: Perhaps this is repetitious, Mr. Nance, but all those arguments would equally apply if the Judge had simply said I'm not going to allow the defense any preemptory challenges.

All those arguments would still be available.

The reasoning of the Oklahoma Court of Appeals would be available.

The only thing that would be different is that it wouldn't seem so trivial because it's nine instead of one.

But analytically, it would be precisely the same issue, I think.

Mr. Nance: Well, analytically, Your Honor, under the standard I think should apply, that of the fundamental fairness standard, the result at least in my mind ought to be different because... I don't want to get into fundamental justice here.

Unidentified Justice: Because the judge looks biased in the case that I put.

Mr. Nance: That's right.

Unidentified Justice: And you're not willing to say he looks biased in the case before us where he says I have no trouble with a juror who is perfectly willing to say in advance that he would impose the death sentence no matter what the evidence is.

Of course, in that example, the State is treating one defendant differently than others.

Mr. Nance: That's correct.

And while the Judge clearly made a mistake, I don't think there's anything in the remainder of this record that indicates bias on his part.

if you look at his challenges for cause, he let off a number that would have prejudiced the defense on his own.

He sustained I believe three challenges for cause for the defense and several for the State.

He pretty well went right down the middle.

Unidentified Justice: Well, he's treating one defendant differently from others in your case, too.

I mean, he's in effect by his incorrect ruling deprived this defendant of one of the preemptories.

So you really do have to confront the question, whether fundamental fairness means that you treat all of the criminal defendants exactly the same, or whether it means something less than that, that is that the process, even though it might be somewhat less than another criminal defendant got, is nevertheless a fundamentally fair one.

Isn't that basically what you have to support?

Mr. Nance: Yes, sir.

Unidentified Justice: That equivalence is not a part of, precise equivalence is not a part of fundamental fairness is what you're saying?

Mr. Nance: That's right.

The Court has repeatedly stated that defendant's entitled to a fair trial, not a perfect one.

If we had to have exactly the same trial for different defendants, we could never do it.

It would just be impossible.

In conclusion, I think that the Court's error, or the error as it was corrected by use of the preemptory challenge was not an error of constitutional dimension.

Nor did it make the trial fundamentally unfair.

And in my mind then, this Court's inquiry under its narrow due process standard and jurisdiction to reverse constitutional errors should cease.

We did not burden the right to an impartial jury any more than well simply the use of that preemptory challenge made an impartial jury a reality.

It helped to effectuate an impartial jury.

Alternatively, if you find that there was some sort of due process problem here, I think because of the weight of the evidence, the almost acknowledged impartiality of the trier of fact and the presence of counsel for the defense, that error was harmless beyond a reasonable doubt under either analysis, my analysis or harmless error analysis.

And therefore I would ask this Court to affirm the judgment of the Oklahoma Court of Criminal Appeals.

Chief Justice William H. Rehnquist: Thank you, Mr. Nance.

Mr. Peterson, you have three minutes remaining.

Gary Peterson: Unless the Court has further questions, I have nothing further.

Chief Justice William H. Rehnquist: The case is submitted.

Unidentified Justice: The honorable court is now adjourned until tomorrow at ten o'clock.

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Ross v. Oklahoma - Oral Reargument

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Case:

Ross v. Oklahoma

Media File:

86-5309_19880418-reargument.mp3

Related Transcript:

86-5309_19880418-reargument.xml

Transcript:

ORAL ARGUMENT OF GARY PETERSON, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear now argument in Number 86-5309, Bobby Lynn Ross versus Oklahoma.

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

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

Oklahoma has a statute that grants a defendant in a first degree murder case nine preemptory challenges.

The issue in this case is whether it's constitutional for a state to take away one of those preemptory challenges during a capital murder trial.

The way that this issue came up was when the trial judge made what everybody now agrees was a very serious mistake.

During the jury selection in this case, the trial judge overruled a defense challenge for cause against a juror, Mr. Huling, who said that he would return only a death sentence upon conviction and that he would not consider any possible other penalty.

This juror was plainly unqualified under the Sixth Amendment and even the state now concedes that he was unqualified to sit on the trial.

But once the challenge for cause was overruled, there was only one thing to stop this juror from sitting on this case and that was if one party or the other removed him by a preemptory challenge.

The way that jury selection proceeded in this case was that the parties used their preemptory challenges in alternation.

One side would use a challenge, they would bring on a replacement juror, and then the other side would use a challenge.

The first party to come up with a preemptory challenge to use, after Mr. Huling was seated, was the state, and what did the state do with its preemptory challenge after Mr. Huling was seated?

They waived it.

They didn't use it on anybody.

They were quite happy to see Mr. Huling sit as a juror in this case.

The state apparently was not interested in correcting with its own preemptory challenges what they now concede to be a rather flagrant error by the trial judge.

They apparently felt it was the better use of the challenge to just waste it.

Unidentified Justice: Do they concede that it was a flagrant error?

I think they've conceded that it was wrong, but I thought that, if I recollect their brief correctly, they do make the argument that there was some ambiguity in that juror's responses, that some of his earlier responses were inconsistent with that statement that you quoted.

Gary Peterson: Your Honor, I was relying on the last oral argument in this case.

Mr. Nance conceded that it would violate the Sixth Amendment for this juror to sit.

Unidentified Justice: Well, but, I understand that, but that's a little different from saying that it was a flagrant violation, so that you can make the statement that the state must have known there was a violation and the state could have solved the problem by using one of its preemptories.

Gary Peterson: The state conceded it was a Sixth Amendment violation.

We contend that the Sixth Amendment violation in this case was a flagrant one.

Unidentified Justice: Okay.

Well, I thought the state took the position that in view of Oklahoma's procedure of letting a preemptory be used to solve the problem of the failure to excuse the juror that, in fact, there was no error at the end of the line.

I mean, that was what I understood the argument to be.

Gary Peterson: That was their argument, but they did concede that if this juror had sat, it would have violated the Sixth Amendment.

We--

Unidentified Justice: Well, but the juror didn't sit, of course.

Gary Peterson: --That's correct, but the cost of that to the defense was that it lost one of its nine preemptory challenges.

The only way to keep this juror off was for the defense to use a preemptory challenge of its own.

There was no help coming from the state to correct the error.

Unidentified Justice: Just before we leave the question about the juror, this doesn't come up to us on habeas.

There was no findings.

There were no findings that a particular juror would have been challenged?

Gary Peterson: The defense attorney did not specifically identify any juror that actually sat on the jury whom he would have removed.

He did specifically say that he did not think that the final trial jury was fair and impartial.

Unidentified Justice: But he didn't say that as to any particular juror he would have exercised his last preemptory challenge?

Gary Peterson: He didn't have any preemptory challenges left.

Unidentified Justice: Or that he would have exercised an additional preemptory challenge?

Gary Peterson: He didn't say as a hypothetical matter, if I had more preemptory challenges, I would use it upon Juror X.

Of course, it's part of our argument that even if he had made such a statement, it wouldn't have proved anything because the mistake happened earlier in the jury selection and if the mistake hadn't happened, we could have ended up with a different panel of jurors facing him by the end of jury selection.

So that it just doesn't prove anything and, of course, we're relying on the Gray v. Mississippi case on that issue.

Unidentified Justice: Well, you are going somewhat beyond that, aren't you?

Aren't you saying that if any juror is wrongfully excluded... wrongfully included, calling for a preemptory challenge that you have automatically as a lawyer?

Gary Peterson: Well, I don't think it's necessary to argue that in this case.

Of course, this was a death penalty case, and we would say that in a death penalty case, there should be a very scrupulous adherence to procedures, perhaps more so than in other cases.

Unidentified Justice: Well, suppose the judge just makes an error and seats a juror that he shouldn't, and you use one preemptory challenge extra, automatic reversal?

Gary Peterson: It would depend on whether the state had a rule that required you to use a preemptory challenge in order to correct the judge's error.

If there was no such rule, there would be no problem.

It would just be a tactical question about whether to remove a juror or not use a challenge and then argue on appeal that the juror shouldn't have been seated.

So, I think that the constitutional violation depends on the defendant being forced to use a preemptory challenge to remove somebody, be forced to give up a valuable right as a result of a mistake.

Unidentified Justice: One reads the Oklahoma Code of Criminal Appeals opinion and one gets the impression that that is one of the purposes of preemptories in Oklahoma, is to correct that sort of thing, that this is not a miscarriage of the preemptory system, but it's one of the things you use it for.

Gary Peterson: We disagree.

I mean, the statutes do not say that.

In fact, the statutes, Oklahoma statutes, say the direct opposite thing.

They say preemptory challenges are not to be used until people who are challengeable for cause are removed from the jury.

I think the most you can read into the Oklahoma court decisions is that they have prescribed some kind of procedure for bringing appeals on claims of error based on overruling challenges for cause.

They haven't said that the right of preemptory challenge is extinguished if the judge happens to make an error in a case.

In fact, in this case, they seem to say that the right of preemptory challenge... if the defendant had been able to point to somebody objectionable or in another case, they used the expression unacceptable, that was still on the jury, they would have a grant of relief.

So, I don't think they're saying that you just have to sacrifice your preemptory challenges for the cause of justice in Oklahoma.

I just don't think that's the law in Oklahoma.

Unidentified Justice: Well, are you complaining that you had to use the extra preemptory challenges?

Gary Peterson: We are complaining that we had to effectively waste a preemptory challenge by using it to excuse Juror Huling.

Unidentified Justice: But are you complaining that you had to use all of your preemptory challenges in order to make... bring this appeal?

Gary Peterson: I think that that puts a very big burden on the assertion of the Sixth Amendment right to an impartial jury to have to exercise all of your preemptory challenges and that's one of our arguments on our Sixth Amendment claim, is that the state has prescribed procedures that are so burdensome to enforce the right to an impartial jury, and one of those rights is you have to exhaust all your preemptory challenges even though there may be a tactile reason to save one.

Unidentified Justice: Well, if you had four and you only lost one, and you only had to use one improperly, then you're not hurt if you had three extra ones that you more or less had to burn, shall we say, simply in order to take an appeal.

Gary Peterson: I think if you had--

Unidentified Justice: I don't see where the harm is.

Gary Peterson: --I think if you had a situation where three were left, I think you'd have a pretty good harmless error case.

Of course, in this case, the defense alleges every single one of his preemptory challenges--

Unidentified Justice: But you are saying that you're concerned that he was forced to do this in order to appeal, and I'm saying he either used them properly or he didn't need them.

Gary Peterson: --We don't know why he exercised his preemptory challenges the way he did.

In fact, our statute says he doesn't have to state any reason why he did it.

I think what we're saying is that the procedure does put a burden on the enforcement of the Sixth Amendment right in this case.

Of course, the case that you've posited would be a good case for harmless error.

Oklahoma had a procedural rule, as I've said, that required this defense attorney to remove Mr. Huling from the jury.

If he hadn't done that, he would have been basically saddled with the result of the trial.

He would have had an unappealable, uncorrectible trial in violation of the Sixth Amendment.

He would not have been able to claim on appeal that Mr. Huling should not have sat on the jury.

He really had no choice in this matter.

He had to use the preemptory challenge in order to protect the defendant's constitutional rights to a fair trial under the Sixth Amendment.

Once he used the preemptory challenge on Mr. Huling, he had one less that was available to use on other jurors.

This loss of a preemptory challenge violated the Constitution.

The Oklahoma court agreed that Mr. Huling should have been removed by the trial judge for cause, but they refused to give any remedy for the loss of the preemptory challenge that followed from following Oklahoma's procedure.

In effect, the court said that the loss of the preemptory challenge was a harmless error.

We disagree.

Preemptory challenges are valuable because they change a jury's membership, and a change in jury's membership can lead to a change in the outcome of the case, that could have led to a change in the outcome of this case.

There was conflicting evidence at the trial of this case.

For example, on the question of whether the defendant had the intent to kill.

That was an element of the defense.

There was also conflicting evidence on the sentencing issues.

A different jury could have resolved those conflicts differently.

This was the kind of case where the defense needed all nine of its preemptory challenges and not just eight of them.

My client was black.

He was tried in a virtually all-white community for the murder of a white police officer.

The officer and his family are residents of the area.

My client was not.

The trial judge specifically found that my client's race was an issue in the trial.

The homicide had received extensive pre-trial publicity, so much so that the trial judge granted a change of venue in the case, but he only moved the case to the next adjoining county where virtually all of the jurors that were called for service had read the same pre-trial publicity as in the original county.

It turned out really not to have been very effective at all.

There was a very real danger of prejudice in the community against my client in this case, and there was a corresponding need for the full complement of preemptory challenges, all nine, to remove prejudiced jurors from the jury.

The defense lawyer in this case unsuccessfully asked for extra preemptory challenges before trial.

He used up all the ones he had during trial.

Although he didn't specifically challenge any of the jurors that actually sat on the case for cause, he did say at the end of jury selection that he did not think that the jury was fair and impartial.

That's exactly the situation in which preemptory challenges are most valuable.

When the defense believes the jurors are not impartial and believes they are biased, but he doesn't have the proof that's needed to establish a challenge for cause.

Unidentified Justice: Well, he also said that he couldn't get a fair jury in that locale anyway, hadn't he?

Gary Peterson: That's what he said in his change of venue motion.

Unidentified Justice: Right.

So, I mean, there's no reason to attribute that statement to the fact that... to this one juror.

He didn't think he could get a fair jury in this locale no matter how many preemptories he had been given.

Gary Peterson: Well, let me back up.

He said he couldn't get a fair jury trial in Beckham County, which is where the case was originally held.

He also said that he didn't want the venue moved to Roger Mills County.

I'm not sure he ever said one way or the other whether he could or couldn't get a fair trial in Roger Mills County.

It's clear that he didn't want the case tried there, though.

That was where it ended up, though.

Preemptory challenges are especially important on the question of punishment in Oklahoma.

If even one juror becomes committed to a life sentence during the penalty trial in a death penalty case, the judge has to discharge the jury and return a life sentence in the case.

So, a change of even one juror brought about by a preemptory challenge can change the outcome of a penalty trial in Oklahoma from death to life and, of course, that one juror could lead the jury to a different outcome on the guilt phase of the trial as well.

Unidentified Justice: So, you're saying that any time a preemptory challenge is improperly required of the attorney, because of for cause challenges, improperly-denied, automatic reversal?

Gary Peterson: If the defense, as in this case, has used up all of its preemptory challenges, has asked for more, has expressed a need for every single preemptory challenge that they get and they don't get the full number, as a result of an error by a government official, in a death penalty case, in particular, yes, I think that that would be grounds for automatic reversal.

While a change of even one juror could have been critical, it's important to note that one preemptory challenge could have made more difference than just one juror on the final jury.

When the judge made his mistake in this case, the parties between them had a total of eight preemptory challenges left and only eight of the actual trial jurors had been seated at that point.

It's conceivable that if the judge had ruled differently on the challenge for cause, the parties could have been motivated to exercise their preemptories differently in response.

That's the teaching of Gray v. Mississippi.

It's conceivable that the parties could have used their eight remaining challenges to remove the eight actual jurors from the jury and it could have resulted in a completely different jury panel by the end of the trial.

Under the circumstances of this case, the loss of a preemptory challenge was a serious loss.

It was one of constitutional dimension.

The right to preemptory challenge is, of course, a state-created right, but it's nonetheless an important one.

The Court has called it in its own decisions one of the most important rights secured to the accused.

It has six and a half centuries of history behind it.

It's recognized in every single state and federal jurisdiction as an essential part of jury trial.

When a preemptory challenge is taken away, as here, it's a significant loss.

It's like the loss of another kind of state-created right that the Court considered in Evvits v. Lucey, rights to an appeal.

Even though it's created by the state, an appeal can't be taken away after it's given without denying due process of law.

The loss of a preemptory challenge is the same kind of grievous loss that brings the due process clause into play.

The decision of this Court that comes closest to the situation here is Hicks v. Oklahoma.

That case involved another state-created right, the right to jury sentencing.

The defendant in the Hicks case had a right under state law, not under the Constitution, to be sentenced by a jury.

Although there's no constitutional right to be sentenced by a jury, the Court still held the denial of the state-created right to jury sentencing denied due process of law.

The right to jury sentencing in Hicks was important because the jury could return a different sentence than a judge could return.

The right to preemptory challenge is important because one jury can return a different verdict than another jury, and a preemptory challenge is the tool, is the instrument that brings about a change of one jury into a different jury.

The right to preemptory challenge should be treated in the same way as the right to jury sentencing in Hicks.

If it's taken away by mistake, by a government official, then there has been a serious deprivation, a denial of due process of law.

Unidentified Justice: I presume the same thing would be true if the judge wrongfully excuses somebody for cause as opposed to wrongfully not excusing for cause.

I mean, you really have to make every call right or you would have affected the jury panel, and if getting a jury, a different jury panel, although a jury panel that is found to be fully fair,... you have no constitutional claim this wasn't a fair panel, right?

Gary Peterson: We don't know whether it was fair or not.

All we know is that a defense lawyer didn't think it was fair because that's what he said.

Unidentified Justice: Well, if you could bring a constitutional claim that it was not fair, that there was someone there who had a bias, who should have been excused for cause, you'd have a different case, wouldn't you?

Gary Peterson: We don't have the proof that this Court would require.

Unidentified Justice: Yon don't have that case.

So, we have to assume it was a fair jury.

You're saying any mistake that alters the composition of the jury, but you alter the composition of a jury if you excuse somebody for cause erroneously.

Right?

Gary Peterson: I disagree.

The right... you don't have any right to have people... there's no corresponding right... there's no inverse preemptory challenge.

There's no right to have people that you want to have on the jury on the jury.

There is no right personal the defendant can assert.

Since there's been no invasion of a right, the defendant has a right to insist that somebody stay on the jury.

I don't think that an erroneous ruling on excluding a person from a jury, unless it offended Witherspoon or some of these other cases, would create a constitutional problem under the due process clause.

Unidentified Justice: Well, it seems to me the notion you've been urging, that somehow there has to be one expected jury and if you don't get that, even though there's no reason to think it was an unfair jury, you've been deprived of something of significance, is simply not consonant with that notion.

There are a lot of different juries you might have gotten.

Gary Peterson: The whole purpose of a preemptory challenge is for the defense to remove people that it thinks are bias from the jury when it doesn't have the proof to sustain a challenge for cause.

The fact that we don't have the proof I don't think really answers the question of whether it was important or not to deny a preemptory challenge.

Here, the defense lawyer wanted preemptory challenges.

There was a background of prejudice, potential prejudice, against my client in the community.

He used up every one he had.

He asked for more and couldn't get them.

I think it was a serious loss in this case, and the cases that you perhaps hypothesize wouldn't create the same situation.

Unidentified Justice: Why do you say that there's no right to not have a juror excused for cause?

Do you think that... don't you have a right to a panel fairly selected from the veneer that shows up?

Gary Peterson: I know of no right in the Constitution or any statute in Oklahoma that says that--

Unidentified Justice: You think a judge can shave it down.

I bet you you'd be up here in another case if the judge just arbitrarily dismissed nine of the veniremen just because he didn't like them.

Gary Peterson: --There's no statute in Oklahoma that gives the defendant the right to insist that somebody stay on the jury.

There has been no violation of any state-created right that would create a due process clause problem.

The state here really has two arguments why the due process clause was violated.

One is that you're not really entitled to nine preemptory challenges under Oklahoma law.

You're really only entitled to nine preemptory challenges less however many mistakes a judge makes in the case.

If you have a real top-notch trial judge that rules right on challenges for cause, you're entitled to nine.

If you have maybe a more mistaken-prone trial judge, you're entitled to eight or six or zero or whatever the judge decides to give you.

Unidentified Justice: Well, a lot of cause challenges are pretty close calls, aren't they?

Gary Peterson: They can be.

Unidentified Justice: And in your... still under your view, any error for cause challenge requires reversal?

Gary Peterson: Certainly in--

Unidentified Justice: Where a preemptory challenge is used.

Gary Peterson: --In a death case, if the state has a rule requiring the defense to use preemptory challenges to correct the trial judge's error, and if the defense has manifested in some way that they need the preemptory challenge, if it's clear that it's not a harmless error, yes, in that case, there should be an automatic reversal.

There's been a loss of a very serious right in that situation, and there's no way to say it's harmless.

The problem with the state's argument about the defendant really isn't entitled to nine preemptory challenges is unsupported by our statutes.

The statutes just do not say that.

They say the defendant is entitled to nine and they don't put any conditions on it.

The case law doesn't say that the right to preemptory challenge is extinguished by a trial judge's error either.

In fact, in this case, they said that the defendant's... they certainly didn't say it in this case.

In fact, they seem to suggest if the defendant had followed a little different procedure, one that we say has no meaning under Gray v. Mississippi, they would have granted the reversal in this case.

So, the defense doesn't have to sacrifice its preemptory challenges in order to correct the trial judge's error.

The state is wrong when it says that you're entitled to something less than nine preemptory challenges under Oklahoma law.

The state's other argument is that even if the defendant is entitled to nine preemptory challenges, a trial with eight preemptory challenges doesn't deny what they call fundamental fairness.

The state hasn't been too clear on what... how you judge what is or isn't fundamentally fair.

Certainly it doesn't seem fair for my client to be getting eight preemptory challenges in his case while other first degree murder defendants in Oklahoma are getting nine.

Presumably, the statutes of Oklahoma are some evidence of what the people of Oklahoma speaking through their legislature regard as fundamentally fair, and those statutes say that the fair number is nine, not eight.

Unidentified Justice: Did the state use its nine?

Gary Peterson: They used five and waived four.

Unidentified Justice: So, then, it used five and you had eight.

Gary Peterson: Effectively, yes.

Unidentified Justice: Without including the one you had to use improperly.

Gary Peterson: Effectively, yes.

Of course, the state had the opportunity to use all nine and that may have influenced how the defense used theirs.

But instead of focusing on fundamental fairness, a more appropriate inquiry, we submit, is whether the defendant received the process that he was due under the law.

Since that's what the Fourteenth Amendment says, this Court has said that the law in due process of law includes state law.

Just like the law in this case, that require nine preemptory challenges.

The defendant was due nine preemptory challenges under Oklahoma's law.

He only received eight of them.

If he is imprisoned and executed as a result of a trial which he receives only nine... eight of his nine challenges, the state has deprived him of his life and his liberty without due process of law and that violates the Fourteenth Amendment.

On the question of harmless error, Chapman v. California says that proving a constitutional error is harmless as the burden that's on the beneficiary there, which is the state in this case.

It also says that the burden is proof beyond a reasonable doubt.

We don't have any burden of proof on this issue, but the record gives every indication that the error was, in fact, a harmful one and not a harmless one.

To establish harmless error, there's no dispute that if the defendant had had another preemptory challenge, he could have used it to alter the membership of the jury.

To establish harmless error in this kind of situation, they would either have to show one of two things.

One, that a different jury would have decided the case in the same way, or, two, that even if the defendant had had the full use of all nine of his preemptory challenges, he wouldn't have used them in a way that would have changed the jury's membership.

It would be impossible for the state to establish either of those propositions in this case beyond a reasonable doubt.

On the question of whether a different jury would have decided the case in the same way, this Court's harmless error decisions in jury selection cases going back a hundred years have never tried to go back and figure out what a different jury would have done in a case, but for a constitutional error in jury selection.

It would be unprecedented for the Court to start doing that now.

But even if it did, the evidence in this case was in conflict.

For example, on the question of intent to kill.

A different jury could have reached a different result.

On the question of whether additional preemptories would have been used, if it had been available by the defense attorney, the record shows that he asked for additional preemptories before trial and was denied them.

He used up all the preemptories he had during trial.

In view of the fact he told the trial judge that he was dissatisfied with the twelve actually-impanelled juries, there was every reason to believe that if he had had the full use of his nine preemptory challenges, he would have used the one that had to be used on Mr. Huling against another juror and by doing that, he would have changed the jury's membership.

There were only two things that he didn't do.

He didn't ask for more preemptory challenges after the judge made his mistake.

That would have been futile.

Under Oklahoma law, the judge couldn't increase the number of preemptory challenges for the party.

The other thing he didn't do was to say as a hypothetical question that he would have exercised a challenge if he had another one available against some juror that actually sat on the panel.

But that's the same kind of statement by counsel that the Court considered in Gray v. Mississippi, and the Court said in that case that it had no probative value as to whether an error was harmful or harmless.

The error in this case occurred in the sixth round.

That was when the judge made his mistake.

If the judge had ruled differently in the sixth round, there could have been an entirely different panel by the time the ninth round came around.

So, what counsel did or didn't say about the panel that was left after the ninth round doesn't prove one way or the other what would or wouldn't have happened if the judge hadn't made his mistake in the sixth round.

The state cannot prove beyond a reasonable doubt that the constitutional error in this case was harmless.

We ask that the judgement of the Court of Criminal Appeals of Oklahoma be reversed, and I would reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Peterson.

We'll hear now from you, Mr. Nance.

ORAL ARGUMENT OF ROBERT A. NANCY, ESQ. ON BEHALF OF THE RESPONDENT

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

There are three issues presented in this case, and I believe there are three that are not.

The first is whether the circumstances of the removal of potential Juror Huling from the panel by a preemptory challenge rather than by a challenge for cause deprived the Petitioner of his Sixth Amendment right to a fair and impartial jury.

The second issue that is presented is whether the circumstances of the removal of that potential juror deprived the Petitioner of life or liberty without due process of law.

The third question as presented by the Petitioner is if there was a constitutional violation, is that violation harmless beyond a reasonable doubt.

The three issues that I think are not present in this case are that this is not a Witherspoon death-prone jury case.

This is not a Batson improper-racial exclusion case.

And this is not a case in which there is any demonstrable, articulatable bias or prejudice on the jury that actually sat.

As I think is agreed here, trial counsel accepted for cause each and every juror who sat and made no objection to those jurors, but only complained that there were no blacks on the jury and that the Petitioner was, therefore, denied a fair trial by a jury of his peers.

I'd like very briefly to summarize why I believe that the circumstances of this case present no constitutional error, and why this Court should affirm the judgment of the Court of Criminal Appeals.

This Court has stated, and I think it appears conceded here, that preemptory challenges in this sort of case are creatures of state law rather than creatures of constitutional law.

Some members of this Court over the years have sought the complete abolition of preemptory challenges in criminal cases.

The Sixth Amendment to the Constitution requires a fair trial before an impartial and differently-chosen jury and there is no argument whatsoever that the Petitioner in this case did not receive such a trial.

There is no allegation here that the judge's error with regard to Juror Huling or potential Juror Huling affected the impartiality of the jury that actually sat.

We believe the Oklahoma statutes in this case do not create a substantial and legitimate expectation of influence, direct influence over the deprivation of life or liberty and, therefore, preemptory challenges as a state right are not constitutionalized by the due process clause.

The longstanding Oklahoma law which requires the use of a preemptory challenge to correct a trial judge's error on a challenge for cause is a reasonable and legitimate state rule which benefits both the petitioner or the criminal defendant and the state.

The error in this case, as we see it, did not affect a specific constitutional right and, therefore, we are bound by the narrow due process formula of fundamental fairness and that there was nothing about the procedures in the trial court that was fundamentally unfair.

The trial was fair.

Guilt was reliably established beyond a reasonable doubt, and the Petitioner had competent trial counsel.

Unidentified Justice: You keep emphasizing the trial was fair.

Was the refusal to exclude that juror because of his statement, was that fair?

I'm using your word, fair.

Mr. Nance: It was an error, Your Honor.

So, I would say that it was not fair.

Unidentified Justice: Does an error keep a trial from being fair?

Mr. Nance: An error may or may not affect the fairness of the whole trial.

I think the trial judge was wrong, but there were inconsistent statements by the particular juror.

On two occasions, he said that he would not consider anything but death.

Unidentified Justice: He never explained his reasons.

Mr. Nance: He never did, Your Honor.

That's correct.

Unidentified Justice: So, how can I assume that you say what he said when he didn't say it?

Mr. Nance: Well, I don't guess you could assume that I speak for the judge.

Unidentified Justice: I can't accept your reading of his mind.

Mr. Nance: I don't... I wouldn't pass myself off as reading his mind.

I could talk about what's in the record.

He said twice that he would only impose death, but he told the prosecutor once and the defense lawyer once that he would consider a life sentence.

So, he basically kind of said I'll go this way and I think the trial judge was wrong, but he wasn't flagrantly wrong or flagrantly unconstitutional.

I wouldn't say that.

I think as Justice O'Connor stated, in our view, at the end of it, there was no error because of the availability of a preemptory challenge, and in any event, as the Court has said and as has been conceded, preemptory challenges aren't constitutionally required.

In some of the earlier cases,--

Unidentified Justice: Well, does any state give more preemptory challenges to the prosecution than to the defense?

Mr. Nance: --I frankly don't know, Your Honor.

I'm not aware of any.

Unidentified Justice: I believe some states give more to the defense than to the prosecution.

Mr. Nance: That wouldn't surprise me, but I'm not aware of any state where the converse happens.

Unidentified Justice: Well, suppose a state gave the prosecution twice as many preemptories as to the defense, violation there?

Constitutional problem?

Mr. Nance: I think there very well could be because that would be, at least in my mind, fundamentally unfair.

Unless there was a question in the first argument about empirical evidence that showed jurors leaned to the defense and you had to rebalance it.

In the absence of something very good along those lines, I'd say that would make things unfair.

I need to take issue, I think, with--

Unidentified Justice: So, a misallocation or a disproportionate grant of preemptory challenges can give rise to a constitutional problem, then it's just a question of degree, correct?

Mr. Nance: --I think so.

I think that's correct.

Unidentified Justice: And here you say that one more preemptory challenge does not rise to the degree of the constitutional violation?

Mr. Nance: That's true.

That's precisely what we say.

I need to take issue, if I may, with the argument that the Petitioner only got eight and the state got nine.

The Oklahoma law and the cases cited by the Petitioner and in the Farrell case, which was an Oklahoma case, relied upon by the Court of Criminal Appeals in this opinion, and I think in the Stock case, which I mentioned in the first argument, has long required the use of preemptory challenges to correct an error of this sort.

So, to say what the law in Oklahoma requires based on the statute and ignoring the case law doesn't fully characterize and fairly characterize what the law is.

The Petitioner had a legitimate expectation to nine preemptories, and he got them and used every one.

One of them he used to correct what I concede was an error, but that is consistent with the Oklahoma scheme of things and he didn't lose anything that had been granted him thereby nor was there a different rule really imposed in this case than there would be in any other criminal case in Oklahoma in which something similar happened.

The Court has said that nothing in the Constitution requires the grant of preemptories, but the trial by impartial jury is what is required.

So, I turn my emphasis to looking at whether or not the trial was impartial.

In Lockhart, this Court said that the Constitution presupposes a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints on that jury, so long as the jurors can conscientiously and properly carry out their sworn duty under the law, and the facts of a particular case.

There is no argument whatsoever in this case that the jury that sat in Mr. Ross' trial did not meet that standard.

There was a potential Witherspoon problem had Mr. Huling been seated, but the use of the preemptory challenge was a self-correcting mechanism that took care of that problem.

There is no evidence in the record that the trial counsel wanted or needed additional preemptory challenges, and that's significant.

I think we can get into trouble if we try to adhere too closely to Gray.

If the trial lawyer had had a problem, had had a real problem with that jury, he could have spoken up and should have spoken up and tried to get the judge to give him a preemptory back or articulate that problem that he was trying to remove.

That would have shown, whether he was successful or not, that would have shown the possibility of some problem with that jury, which simply is not there.

He didn't ask for additional preemptories after the mistake was made.

He didn't argue that he had been improperly deprived of a preemptory or that the ruling on the challenge for cause was wrong.

He only complained, as I said before, that there were no blacks on the jury and he didn't think his client could get a fair trial by a jury of his peers.

That jury that was seated was indifferently chosen and was accepted by that lawyer as a jury in which there was no one who was challengeable for cause.

No one biased or prejudiced on that jury.

Unidentified Justice: Where was the trial?

What city was it in?

Mr. Nance: It was in Cheyenne, Your Honor, which is in Roger Mills County.

Unidentified Justice: I know where that is.

Mr. Nance: It's in far western Oklahoma.

It abuts the Texas Panhandle.

There was no allegation at trial and there's really no allegation even now that there was any specific problem of bias or prejudice with any specific juror on that jury.

If there were, either the Court of Criminal Appeals or this Court could address that problem.

Instead, we want basically or the Petitioner wants basically in this case a rule of reversal without showing of prejudice, and I think Justice Kennedy's question is apropos.

You would have a rule of automatic reversal every time there had been an erroneous ruling on a challenge for cause that required you to use a preemptory.

Unidentified Justice: Of course, in fairness, Gray v. Mississippi points in that direction.

I recognize you can distinguish it factually, but isn't the teaching of that case that we're just not going to speculate about what another jury would have been like?

Mr. Nance: It does, Your Honor.

It does point in that direction and that, of course, is one part of the Gray opinion I like and would like the Court not to speculate about the jury that might have been impanelled, but to look at the fairness of this jury because there simply isn't any complaint that can be made about it.

Unidentified Justice: One way where this case differs from Gray, does it not, in Gray, there was a juror seated who was subject to challenge?

Mr. Nance: Well, as I recall Gray, there was a woman excluded who should have been seated under Witherspoon and went out on a challenge for cause.

So, there was a Witherspoon, if I'm remembering Gray correctly, there was a Witherspoon error in Gray, and under those circumstances, circumstances which aren't present here, the Court said it would not speculate on what the jury might--

Unidentified Justice: In Gray, a woman was excluded.

A juror was excluded who should have been included.

Mr. Nance: --That's correct.

Unidentified Justice: Here, there was a juror who was excluded who should have been excluded, but under the wrong challenge.

Mr. Nance: That's correct.

I would agree Mr. Huling should not have sat and ultimately, of course, didn't sit.

Unidentified Justice: And a juror included who might not have been included.

Mr. Nance: That is also correct, although--

Unidentified Justice: And some other juror excluded who might not have been excluded.

Mr. Nance: --If you say so, Your Honor.

I'm not sure I follow.

But, in any event, I assume all of the jurors or potential jurors we're talking about are fair jurors, and you're talking about the substitution of one fair juror for another.

I don't think that anywhere in the scheme of things there was one right jury for this case, and it was just a matter of--

Unidentified Justice: No, but isn't it true that that argument would apply no matter how great the disproportion between the number of preemptories to the defense and the number for the prosecution?

You could always make that argument, it seems to me, if you can't prove anything wrong with anybody who actually sat.

Mr. Nance: --Well, you could make the argument, Your Honor.

I'm not sure that it would be persuasive, and I think it probably would be fundamentally unfair.

Unidentified Justice: If it's not persuasive in that case, why is it persuasive in this one?

Mr. Nance: Well, if, on the one hand, for instance, you're permitting the state just to keep excluding until it's perfectly happy,--

Unidentified Justice: Well, no.

Say they had nine preemptories and the defense has none.

Then, maybe they got a fair jury.

It's perfectly possible.

You can have a fair jury if you just took them out of the hat by random.

I often think that would be better than having all these complex procedures we have, to tell you the truth.

But the question really is, is it fair to tilt the scales just a little bit.

Nine to eight isn't very serious, but why is it different in terms of what you can actually prove than if it was fourteen to seven?

You never know what's in a juror's mind.

You presume they're all doing their best.

Mr. Nance: --Well, that is correct, Your Honor, and I suppose there comes a time when a difference of degree becomes a difference in kind, and--

Unidentified Justice: It's clear that there's a difference in kind between nine versus eight and eight versus eight.

It's a difference in degree when it's eight versus nine instead of eight versus ten or eight versus eleven or eight versus twelve because one is equal, the other it is unequal.

Mr. Nance: --Well, I guess I have to differ with the idea that it was unequal in this case.

But accepting that, eight to nine isn't very serious.

That's... I couldn't have said that any better.

Unidentified Justice: And you would say that they're not unequal because what each side got was nine preemptories with the understanding that they might have to use a certain number of them to exclude jurors who were wrongfully seated.

Mr. Nance: Just so, Your Honor.

That--

Unidentified Justice: And the state got the same number on that assumption.

Mr. Nance: --Correct.

Unidentified Justice: The state was lucky enough in this trial not to have to use one of them to exclude a jury that was wrongfully seated, but all it got was nine minus whatever it would have to use.

Mr. Nance: And it could have happened the other way, that there might have been a juror who should have come off under Witherspoon and didn't.

Unidentified Justice: Don't you agree that if the judge had said at the beginning of the trial or some place during the trial that the defendant shall have eight challenges and the prosecution shall have nine, that that would be error?

Mr. Nance: It would, indeed, be error.

Unidentified Justice: That would be error.

Mr. Nance: Yes, sir.

Unidentified Justice: What's the difference between that case and this one?

Mr. Nance: The difference between that case and this one is that in this case, the judge acting as a judge simply made a mistake.

In that case, where the law guarantees both sides nine, he just says--

Unidentified Justice: Suppose in the first one, he made a mistake.

Mr. Nance: --Well, it was just a mistake of law or whatever that--

Unidentified Justice: Mistake in what you said.

I'm using your words.

Mr. Nance: --Well, it would clearly be erroneous, and it probably would be--

Unidentified Justice: Error?

Mr. Nance: --It would be error.

It would definitely be error.

Unidentified Justice: It would be error?

Mr. Nance: Yes, but before I get into--

Unidentified Justice: Well, if it's error, it's error here.

Mr. Nance: --Well, Your Honor, it would clearly be an error of the common law of preemptory challenges or the statutory law of preemptory challenges in Oklahoma.

I don't know and I'm not really willing to concede that it would make the trial fundamentally unfair, which I think would be the more narrow ground that this Court would look at it on.

Unidentified Justice: To use Justice Scalia's example, we start out each gets nine and they just have to use them to correct judge's errors, so that's equal.

It just happens the judge makes nine rather obvious, I don't want to use the word flagrant, but clear errors that benefit the prosecution, so all nine of one side have to be used and the other nine aren't, is it still equal?

Mr. Nance: I think not there, Your Honor, and--

Unidentified Justice: So, you don't really look at the way it starts out because it's true, as they started out, they all had nine and they all were subject to the problem they might have to use them to correct judge's errors, but you sort of lose the equality if the judge's errors got in one direction and not the other.

Mr. Nance: --And then you have a serious suspicion of a biased judge or whatever.

Unidentified Justice: We don't have to presume bias.

Mistakes just happen to tilt the scales in that particular way.

I would assume the judge acted in good faith.

Mr. Nance: Well, yes, and that's the point of the difference in degree becoming a difference in kind.

You'd have what at eight and nine may not look very serious, begins to look very serious, indeed, if it went all the way.

If I could, I'd like to turn for a moment to the due process argument.

Unlike Hicks v. Oklahoma, the law in preemptory challenges in this case does not create a substantial and legitimate expectation of direct influence from the deprivation of life or liberty.

In Hicks, this Court said that the Fourteenth Amendment protected the Oklahoma provisions for jury sentencing because the jury directly fixed the terms of the fundamental deprivation of liberty.

I don't read anything in Hicks to say that the Fourteenth Amendment constitutionalizes every trial procedure or provision of state law for criminal trials.

The Petitioner, I think, in this case, had a substantial and a legitimate expectation to nine preemptories with the traditional caveat of Oklahoma law that if the judge erred on a challenge for cause, you had to use a preemptory to correct that in the first instance.

He, of course, received his nine and used them in one case to remove Juror Huling.

I think the use of preemptory challenges is too tangential to the final verdict and sentencing to give a substantial and legitimate expectation of influence over the verdict or deprivation of life or liberty because, of course, there's been no evidence taken, no argument made, no instruction by the Court, no deliberation by the jury.

It's one of the earliest things that happens in a trial, and one error in that case with the law of preemptory challenges, I think, is just too attenuating.

The Petitioner in the brief also relies on the Logan v. Zimmerman Brush case and makes the argument, which has been advanced here, that there's an Oklahoma procedure that deprives him of his right to preemptories.

I think that is based upon the false premise that preemptories have to be in Oklahoma completely free and clear of any interference.

As we discussed before, both sides have, there is a state procedure that requires their use to correct errors.

The Petitioner cited some cases.

The Court of Criminal Appeals relied on the Farrell case.

I cited Stock, I think, in the first argument, but unlike the irrational state procedure which in Logan deprived the plaintiff of his right to a cause of action, this rule is a reasonable rule.

Unidentified Justice: But, General Nance, isn't the reason for the rule... correct me if I'm wrong on this... is that the state wants to be sure that the defendant is not taking advantage of an objection that he really wasn't sincere about, that they really wanted to be sure that juror didn't sit, and, so, they insisted that if they want to rely on the error as a ground for reversal, that they actually have exercised a preemptory to make sure it wasn't just an objection that sort of pro forma to something they really didn't care about?

It seems to me that would make a very sensible rule, and it wouldn't create any problem at all as long as there are plenty of preemptories to go around.

The only problem that's created is when it does have this unusual effect, having one side having more than the other.

See, if you had unlimited preemptories, then you would certainly insist on that, then the rule would solve the problem of the sort of phony objection by the trial court.

Mr. Nance: Well, I think the purpose for the rule is to remove error in the first instance, to remove it when it can be addressed by the trial court, much like making you object to improper evidence.

Once it's in, it's in.

So, you have to make a timely objection and apprise the court of why you think this evidence shouldn't come in or a confession or whatever it is.

And that point is legitimate.

I suppose there could be an element of worrying about the defense just challenging everyone for cause and trying to build error.

I think the main thing is to require the defense to correct that error when it's correctable, not try the case and go up on appeal and have to do it again, and that's legitimate.

If, in fact, there is a biased juror or a biased potential juror, to make the defense take him off, and the equality of it is in the other case, as in Gray, I guess, if there was someone who just said adamantly they would never consider the death penalty, and there is a challenge for cause made and not sustained, then the prosecution has to take them off.

The circumstances of that rule could go either way in individual cases, but the rule is the same either way, and the law, of course, benefits the state by making those trials which really ought to be socially significant events as error-free as possible and, therefore, our rule is not the irrational sort of rule the Court condemned in Logan.

On the harmless error question, I think it is clear and I don't hear any argument to the contrary that the error in this case did not affect the truth-seeking function of the jury.

I don't hear any evidence... I hear hints, but I don't hear any serious argument that the error in this trial did not affect any of the non-truth-seeking constitutional values that the court would be interested in, like having racial bias.

In Batson, a racially-biased jury may or may not be fair to the defendant, but there are independent constitutional grounds in the Fourteenth Amendment, equal protection clause, that just say we're not going to permit it.

Whether that jury is in any given case fair or not, we won't permit racial discrimination.

There's no argument in this case that there was any error in that sort of constitutional value, and unlike in Gray, there was no tribunal impanelled to return a verdict of death, and, so, I think the Petitioner's suggested rule that anything that would change the composition of the jury really doesn't apply because it kind of takes that part of Gray out of context.

In Gray, there had been a Witherspoon violation.

Here, there has not been.

There's been some suggestion now that there was evidence in dispute, particularly about the intent to kill.

I think not.

The evidence in this case was that the Petitioner shot a police officer in the head with a 25 calibre pistol at close range three times.

I just cannot see any conceivable circumstances in the fact when a man who does that doesn't intend to kill.

The evidence was that as he left the robbery of a motel, the police officer drove up, he shot the police officer, was arrested in a nearby town half an hour away, half an hour later.

The murder weapon when he was patted down was found in his pocket.

The officer's service revolver was found next to the seat where he was sitting.

The booty from the robbery was in his car.

His foot print matched the foot print at the scene.

He was identified as one of the robbers, and after being Mirandized, he confessed.

There is simply no question about the evidence of this man's guilt.

In the sentencing proceeding, the jury found five aggravating circumstances.

This Court has stated that when a person is tried to an impartial jury and has counsel, you can strongly presume that any other error is harmless.

Counsel suggests that harmless error in jury selection just doesn't work and it would be unprecedented.

I, of course, don't want you to find any constitutional error, but I can explain why I think harmless error would apply in this case.

That is, because your usual jury selection error occurs because there is some sort of bias that has happened to that jury.

Whether it's racial bias or it's bias because of pre-trial publicity or there's bias because people in the jury know the defendant and think he's a rascal or whatever, there is some bias on that jury, and under the harmless error doctrine, you assume there's been an impartial decision-maker or the other kind of jury error is a non-fact-finding/non-biased prejudice-kind of error that's, for instance, based on a race, that the court just says and rightly so won't be tolerated.

This Court has previously stated that it should affirm where a finding of guilt is made beyond a reasonable doubt and that everyone is entitled to a fair trial but not a perfect one.

The central purpose of the criminal trial is the factual determination of guilt, and it was determined beyond a reasonable doubt unquestionably in this case.

The Court has stated that it shouldn't reverse for inconsequential errors because that encourages litigants to abuse the judicial process and the public to ridicule it.

That would be the precise result here.

If there were an initial preliminary error in the jury selection in an otherwise fair trial in which the defendant is clearly guilty, the public would be dumbfounded, I must submit, and would only be caused to disrespect the judicial process.

Any error, if it was constitutional, and we think it was not, is harmless beyond a reasonable doubt.

It didn't affect or abort the trial process.

Therefore, for those reasons, we respectfully ask the Court to affirm the judgment of the Court of Criminal Appeals.

If you have no further questions, that concludes my presentation.

Chief Justice William H. Rehnquist: Thank you, Mr. Nance.

Mr. Peterson, you have three minutes remaining.

ORAL ARGUMENT OF GARY PETERSON, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Gary Peterson: What the state says, in essence, is that the right to preemptory challenge in Oklahoma is conditioned by the state's right to arbitrarily take those challenges away as a result of mistakes.

Even if that were the rule, it wouldn't be consistent with the due process clause of the Fourteenth Amendment.

The state may not have to give these challenges in the first place, but once it does, it can't just take them away as a result of mistakes by government officials.

It has to comply with the due process clause.

Unidentified Justice: It depends upon what you regard the state as having given.

I mean, why can't you regard the state as having said, look, it's often a close call whether a juror should be seated or not, and we don't want to ruin the trials with that, so we're going to give you many more preemptory challenges than we think you need.

But the deal is you get nine but both sides, we're treating you equally, you both have to understand you have to use these when you think the judge has made a mistake in seating a juror.

Why is that unfair?

Why is it unequal?

Gary Peterson: They don't have to give the right in the first place, but when they do, I think it's just a constraint of the Fourteenth Amendment.

It's like the right of appeal.

You may not need it in eighty percent of the cases, but if they just take it away arbitrarily, as a mistake, it's still a serious loss.

Unidentified Justice: The state is subject to the same rules.

If it wants to get a juror off the panel the judge seated, they have to exercise it.

Maybe... what if the state has exercised the preemptory to get such a juror off in this case, would you be here?

Gary Peterson: No.

The state doesn't have to give these preemptory challenges, but once it does, it has to not take them away as a result of mistakes and when it does, it's violated the due process clause.

Unidentified Justice: My question again.

The defendant in this case exercised the preemptory challenge to get off a wrongfully-seated juror, is that right?

Gary Peterson: Correct.

Unidentified Justice: Now, what if in the same case, the state had had to do the same thing, would you be here?

Gary Peterson: If the state had had to remove the juror in this case?

Unidentified Justice: No, no.

Just another juror.

Gary Peterson: Oh, I see.

Unidentified Justice: They both started out with nine and they both ended up with eight, according to you.

Gary Peterson: Well, the due process clause doesn't protect the state, it protects individuals.

Unidentified Justice: Well, I still ask you.

Would you be here?

Gary Peterson: No.

Unidentified Justice: The state says we're going to give preemptories only for the purpose of challenging people who you think were seated improperly, can't be used for any other purpose, it can only be used where you believe the juror was improperly allowed on in the face of a for cause challenge, would that be okay?

Gary Peterson: I think if they defined that rule in advance to where the defense knows about it before the trial begins, and it's fair to both sides, then that would be a legitimate limitation.

Unidentified Justice: But this Oklahoma case law was in effect at the time this case was tried.

It was clear under Oklahoma law that that's the deal.

You get nine and you use... both sides use as many of them as you need to remedy the errors.

Gary Peterson: You didn't know when the jury selection began whether the judge was going to make a mistake or not, and I think that's the difference.

You can't know how to exercise your preemptory challenges correctly and effectively unless you know whether the judge is going to make a mistake.

He isn't going to come in and say, counsel, I'm going to make three mistakes during this jury selection and you can plan out your strategies accordingly.

That didn't happen and because it didn't, the defense couldn't use its preemptories effectively and it did violate the due process clause.

Chief Justice William H. Rehnquist: Thank you.

Thank you, Mr. Peterson.

The case is submitted.

Attribution:

The Oyez Project

Buchanan v. Kentucky - Oral Argument

Fri, 09 Jan 2009 14:48:25 +0000

Case:

Buchanan v. Kentucky

Related Transcript:

1986_85_5348_argument.xml

Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

DAVID BUCHANAN, Petitioner, v. KENTUCKY

No. 85-5348

January 12, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 p.m.

APPEARANCES:

KEVIN McNALLY, ESQ., Frankfort, Kentucky; on behalf of the Petitioner.

DAVID A. SMITH, Assistant Attorney General of Kentucky, Frankfort, Kentucky; on behalf of Respondent.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: We will first this afternoon in No. 85-5348, Buchanan versus Kentucky.

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

ORAL ARGUMENT OF KEVIN McNALLY, ESQ., ON BEHALF OF THE PETITIONER

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

David Buchanan's jury had, among others, two important issues to decide. First, did David know, should he have known, did he intend, to assist Kevin Stanford in killing Ms. Poore?

And secondly, what punishment should they give him for his role in th crime?

Prior to trial, on at least two occasions, the Commonwealth conceded that they did not have any evidence that David intended to assist Mr. Stanford; in fact, that he knew Ms. Poore was going to be killed. And as a result of that, the trial judge excluded the death penalty.

Before the jury, the prosecutor in this case essentially conceded that same, and argued that his involved in the murder stemmed from a conspiracy to commit a robbery, implicitly conceding that Mr. Buchanan was not guilty of intentional murder.

This jury went beyond what the prosecutor suggested to them and, in fact, convicted him of intentional murder, imposed the maximum sentence, and went a step beyond, and in fact recommended, in an unusual move, that the sentences all be served consecutively.

We bring these facts to the Court's attention because it simply demonstrates that we are not arguing about the practice called death qualification solely in the abstract, but in the context of this particular trial also.

Our position is, this jury was uncommonly punitive, if nothing else. And in support of that, we don't solely rely on the sociological evidence that has been adduced, part of which was in issue last year -- the other part that was not in issue was the number of studies that clearly indicate what I think commonsense tells us that a jury picked in this way is uncommonly punitive -- but also the actions of this particular jury.

When we look at the composition of this jury, we see that seven individuals of 56 qualified were excused for cause, essentially because of religious, political, or philosophical beliefs about a punishment which was irrelevant to David Buchanan.

We see an additional four jurors who arguably were excused, as the prosecution has a right to do, because their views on capital punishment were exposed during the so-called death qualification process.

We argue here today that 20 percent, perhaps 21 percent, if you can consider the peremptory challenges, of this panel were excused because of views on a punishment that was irrelevant to this particular defendant.

As a result of that, the jury that decided these critical issues, which required them to get inside the mind of this 16-year-old black inner city youth and decide whether he knew or should have known, as the prosecutor argued, as any reasonable man would have known what Stanford was up to, and then impose a punishment based on his degree of culpability, the jury ended up being less female than it would have been otherwise; it was dramatically older than it would have been otherwise; it was substantially less democratic than it would have been otherwise. And as it turns out, it ended up being an all-white jury when perhaps it would not have been otherwise.

QUESTION: Mr. McNally, did the defendant ask for a severance of the trial?

MR. McNALLY: He did not, Your Honor, although the codefendant did, and it was hotly litigated in the trial court, and is still being litigated in the Kentucky Supreme Court.

QUESTION: Well, since this defendant didn't, has he waived his right, do you think?

MR. McNALLY: No, he hasn't, Justice O'Connor, because we would prefer not to view this case as a separate trial case.

He, trial counsel, asked for other remedies that he preferred, for example, a separate sentencing jury, which actually would have been cheaper for the State to accommodate.

And he asked, and the trial judge suggested, some other remedies we very much would like to talk about before this argument is over.

In no way has he waived his request for some relief, because we would prefer not -- and one would think the State would prefer not -- to require separate trials.

We would prefer not to phrase this case as a separate trial case, a Bruton type of case, because there are other cheaper remedies that just have never been explored because the State has never had a reason to explore them.

QUESTION: In this case the codefendant was capitally charged and your client was not, is that right?

MR. McNALLY: That is correct, Mr. Chief Justice.

McCree and Buchanan are different cases, and they are for a number of reasons, first of all the point that the Chief Justice just made. Bottom line, that is the difference between the cases.

Secondly, because we rely on commonsense and sociological evidence regarding punitiveness of a jury picked in this manner.

Third, because we are not making some attack on a practice that's deemed essential to capital punishment, and the tremendous --

QUESTION: What do you mean by punitive?

MR. McNALLY: More inclined to give more severe sentences, based on the same facts, Mr. Justice White?

QUESTION: You mean give him more punishment than the facts warrant or what?

MR. McNALLY: In this case we contend that that happened. In general, we're contending that jurors who are picked in this manner are uncommonly punitive, that is, they are more punitive as a whole than a jury which is picked for an ordinary criminal case, based on

QUESTION: And your point goes to guilt or innocence?

MR. McNALLY: If pushed, we would talk about the whole question that was before the court last year on conviction proneness. Our position here is that we needn't go that far.

Because obviously there -- McCree rejected or apparently expressed skepticism about some of those things.

We basically make the same argument that was made in Witherspoon. And in Witherspoon, there was fragmentary evidence, and the court said it is self-evident that a jury picked in this manner is uncommonly inclined to impose the maximum sentence, in that case the death penalty.

We're making the same argument, that this jury was uncommonly inclined to impose, as they did, the maximum sentence.

QUESTION: Mr. McNally, exactly what relief did the defendant ask for in a timely fashion at the trial?

MR. McNALLY: Separate juries, for example. I believe there was a discussion of -- and I'm not sure --

QUESTION: Do you know what it is the defendant expressly asked for at trial?

MR. McNALLY: It's right in the appendix, and of course in the briefs we discuss it.

QUESTION: And what was that? A separate sentencing jury?

MR. McNALLY: Separate sentencing jury. In other words, in -- Mr. Hectus asked for that and said, we'll have the trial, and we'll decide guilt and innocence for both defendants, and we'll decide punishment for my client. And then a separate jury could be empanelled to decide the penalty for the capital defendant Kevin Stanford.

Now that would be cheaper than a separate trial. There were other remedies that were discussed. Death qualification, for example, after the guilt phase.

And of my own independent recollection, I'm not sure which of the seven remedies we talk about in our brief were actually discussed.

But the brief clearly indicates which ones were discussed by the trial judge. And I think they were three of the seven-we suggest.

But the fact that all the remedies weren't discussed doesn't mean that those other remedies we suggest in the brief aren't properly before the Court, because really, it's the State's going to choose which of the remedies that are possible they care to employ in a situation like this.

Much as the deck was stacked against Witherspoon, we contend that the deck was stacked against Buchanan. In fact, the Court -- if the Court does not choose to give great weight to the sociological evidence, and we don't mean to underestimate the significance we attach to the sociological evidence, the Court could reach the result we seek without even doing that, based on commonsense, the practical experience of prosecutors, defense attorneys, and judges.

The question of the State interest, which of course Witherspoon turned to, and ultimately McCree turned to in the end, the State interest, is an issue that we would like to address the Court's attention to.

We contend in our briefs that this happens approximately -- and I'm not exaggerating -- once in every decade in Kentucky. Now that may not be true. But we invited the Attorney General to cite some examples from Kentucky where this would be a major imposition on the State in terms of expenditure of their resources.

They've declined to do that, and that's fine. On the other hand, they have failed to cite a single case on point, to my knowledge, in other States, for example, where this might suggest that it is a common situation.

As a practical matter, what happens in most of these situations is that the lesser culpable defendant pleads guilty in return for testimony, often, or a separate trial is granted for other reasons, as perhaps, arguably, it should have been in this case if -- as Stanford argues, and that is the main issue before the Kentucky Supreme Court in his appeal.

QUESTION: But your client didn't argue for a -- didn't move for a severance?

MR. McNALLY: No he didn't. But although the judge indicated -- he certainly didn't oppose a severance. He particularly didn't care, frankly. The judge also ruled that any objections one party makes are considered made on behalf of the other party.

Mr. Buchanan focussed his attention on the death qualification issue with the judge, and proposed remedies.

He did not specifically propose severing the trials; that's correct, Mr. Chief Justice.

QUESTION: Mr. McNally, in your view, can a death qualified jury determine the noncapital charges that are also brought against the codefendant in connection with the capital charges?

MR. McNALLY: Can a death qualified jury determine the noncapital charges?

QUESTION: Against the codefendant?

MR. McNALLY: Against the capital defendant or the codefendant?

QUESTION: The capital defendant?

MR. McNALLY: Certainly.

QUESTION: And why is that?

MR. McNALLY: The State has -- because that person is a capital defendant, and because the State has a legitimate interest in trying one defendant before one jury of all the crimes that arise out of that situation. I absolutely have no quarrel with that.

QUESTION: And then why is it that the same jury couldn't hear the charges, the noncapital charges, against your client as well as a --

MR. McNALLY: Because of the -- because of the lesser State interest involved. In this case, as in many cases that come before the court, there's a balancing of interests here.

And I think that's what happened last year in the McCree case. When you balance the interests in the situation of a noncapital codefendant, it comes out on the side of the noncapital citizen accused, because of the prejudice that we talk about in theory and, if you will give me the benefit of the doubt, in fact, as far as this particular jury went.

That's -- the whole question is what the State interest is. And in the situation of a capital defendant, with all due respect to that argument that's made by the Attorney General, we think it's far-fetched, and absolutely we urge no such doctrine to be adopted: one trial for one capital defendant.

QUESTION: How do you -- how do you manage to include in your challenge the use of the peremptories?

MR. McNALLY: It's only relevant, Justice White, because it wasn't -- but for death qualification at the beginning of trial --

QUESTION: The questions wouldn't have been asked, is that it?

MR. McNALLY: Yes, sir. Mr. Jasmin wouldn't have known. Now, he might have got at it another way because --

QUESTION: Of course he could have. So you really aren't serious about the peremptories in this case, are you?

MR. McNALLY: I'm serious about them in terms of the totality of the circumstances. I'm certainly not arguing a new Constitutional theory.

QUESTION: Well, suppose all of the jurors that were excluded that you would object to had been excluded on the peremptories? Suppose the only jurors that were excluded were peremptory exclusions? Would you be here?

MR. McNALLY: We'd have less force.

QUESTION: But you'd still be making the same argument?

MR. McNALLY: If the -- if no juror was excused by cause?

QUESTION: Yes.

MR. McNALLY: Perhaps not, because that's not -- there's quite a difference between excusal for cause --

QUESTION: Well, how many jurors were excluded for cause on grounds that you think were irrelevant to your client?

MR. McNALLY: Seven.

QUESTION: Seven. And -- total, that was the total. How many all -- how many were excluded for cause totally?

MR. McNALLY: For other issues, you mean?

QUESTION: How many jurors were excluded for cause?

MR. McNALLY: Seven, on this issue. I don't -- I can't tell you off the top of my head what other -- other challenges for cause there were, on publicity, for example; I'm not aware of it.

QUESTION: Mr. McNally, would you tell me again how you would have wanted the State to handle this matter, and how you had preserved your objection below, as far as handling it that way was concerned?

MR. McNALLY: How we -- those are two separate questions.

QUESTION: Well, I think they're related.

MR. McNALLY: The specific remedies discussed below were separate trials, and on rebuttal if we have time, we'll look up the other one. There's at least two suggested by defense counsel; one by the trial judge. Now the other possibilities --

QUESTION: I'm interested in what defense counsel asked for. Separate trials?

MR. McNALLY: And one other.

QUESTION: Now why is there -- why is there no State interest --

MR. McNALLY: Excuse me, separate juries. The codefendant asked for separate trials, Justice Scalia.

QUESTION: Separate juries.

MR. McNALLY: For sentencing.

QUESTION: Just a separate sentencing jury. So that both defendants would have been tried for the substantive offense together before a death qualified jury?

MR. McNALLY: No, death qualification would occur after the disposition of the joint trial.

QUESTION: Okay.

MR. McNALLY: There was no need to death qualify if the -- if there was not going to be a death penalty issue until the separate sentencing jury was empanelled.

QUESTION: (Inaudible.)

MR. McNALLY: It's not barred by Kentucky law.

QUESTION: Well, is that the way it happened? When was the jury death qualified? Before the --

MR. McNALLY: In the beginning.

QUESTION: Of course. Isn't that the usual case.

MR. McNALLY: It is. And it is that practice that we objected to.

The remedies, separate trial being one of them; simultaneous juries, which was not suggested by --

QUESTION: Excuse me, when you're trying before a jury that isn't death qualified, does the jury know what the range of penalties for the offense that's being tried before them is?

MR. McNALLY: There's no penalty qualification except in this particular area. It's unique.

QUESTION: No, I understand that. But can you empanel a jury that is not death qualified, telling them, bearing in mind, if you convict this individual, he may be put to death; but nonetheless, we don't think we have to death qualify.

MR. McNALLY: It's irrelevant to --

QUESTION: To that jury, to the convicting jury, as to whether they'd vote for a conviction if they know that --

MR. McNALLY: It's not necessary to tell them that, is our contention. It is not necessary to tell them that.

And we will even concede, for example -- I'll go even further -- if you want to -- if you want to make sure there's nobody on that jury that would balk at convicting someone, you could have a limited death qualification as to the so-called nullifiers, who are people who just can't find anybody guilty. But those are so few, it would not appreciably affect the interests that we complain about here.

QUESTION: I see. You wouldn't object to a limited death qualification for the convicting jury, that is, could you not vote to convict if you knew that the effect of that might be to cause this individual to be put to death by another jury?

MR. McNALLY: With that remedy. But there are others that you don't have to do that. For example, simultaneous --

QUESTION: You think there are a lot of people who draw the line between the two, between convicting somebody when they know the effect of that conviction will be to expose them to being put to death, and individuals who simply, although they could do that, could not vote personally for the death penalties?

MR. McNALLY: Based on ten years of experience of picking these juries, absolutely. And the public opinion polls and studies indicate the same. And I doubt that the Attorney General would dispute that, Justice Scalia.

There is a huge difference in number between so-called nullifiers, and those who balk at actually voting for the penalty.

But there are other remedies we suggest in our brief that would not require that pretrial death qualification, like simultaneous juries.

QUESTION: What is the difference between a nullifier and someone who would not vote for the penalty?

MR. McNALLY: The difference is that some people -- many jurors, when you ask that question in voir dire, will say, yes, I could sit, I could vote for guilt; yes I could. But I could never vote for the death penalty. That's the distinction people make in their minds.

QUESTION: So the nullifiers are ones who would hesitate on conviction?

MR. McNALLY: They won't even -- they'll do a jury nullification vote, is what they'll do. But that problem doesn't exist with simultaneous juries, or some other remedies we propose, a jury less than 12, or a nonunanimous jury, which by statute the States involved here, which are only -- if you accept our sentencing theory are only six in the whole country. Which of course would require a legislative change, but it's quite possible.

We'd point out here that when you examine Kentucky State interests, it's important to keep in mind that in persistent felon proceedings, the statute specifically provides for a different jury for good cause.

Now, it so happens our capital statute doesn't contain that provision. But note the State interest at stake here.

Note also that in Kentucky the jury's sentence is a recommendation, that the judge makes the final decision. So theoretically, the State interest is considerably less when you have a situation where the jury's sentencing decision on capital punishment is only a recommendation.

We would briefly like to mention the fair cross-section aspects of this before turning to the second issue as our time is dwindling.

We recognize of course what McCree said, that these people are not a distinctive class. That is not to say that one cannot consider the very strong fair cross-section overtones here.

If I could use a football analogy, and perhaps it's a bad day to do that, but it's almost like we get to the one-yard line on the fair cross-section issue, and we don't score.

And we get to the one yard line on the whole question of impartiality but don't score.

QUESTION: What makes you think you got to the one yard line?

(Laughter.)

MR. McNALLY: I'm glad you asked that question, Mr. Chief Justice.

(Laughter.)

MR. McNALLY: Because this group is so large. Because this group is identifiable as death qualification presumes they are. And because, and most important, this group makes a difference.

The traditional fair cross-section cases involving women, for example: there's a dispute amongst the court about whether you have to demonstrate that women make a difference on juries. Does it make any difference?

In this case, we draw strength from both the impartial jury theory, the studies, the actions of this jury, and the fair cross-section ramifications.

All the people that were excluded here were either women, black or Democrats. Now, they are not, according to McCree, a distinctive group. But if you look at it, they are actually a collection of groups that are already held to be cognizable by this Court.

And while we don't necessarily urge as our primary theory --

QUESTION: What do you mean they're a collection of groups already held to be cognizable by this Court? Do you mean --

MR. McNALLY: Women, blacks, and -- well, not Democrats.

(Laughter.)

MR. McNALLY: Women and blacks.

I must turn to the second issue, but before I do, I'd just like to mention the lopsided nature of this death qualification, that there was no questions to this panel about relevant punishments. And it's an aspect of the case the Court -- we would like the Court to consider.

Dr. Lange's report, it's absolutely crucial to understand the purpose of it. And frankly, it wasn't until the Attorney General uncovered the juvenile court tapes in this case that we understood exactly what Dr. Lange was doing.

First of all, it was a joint motion of the parties in juvenile court, that Dr. Lange's psychological report was directed at the issue of amenability to treatment in the context of an involuntary commitment examination.

He -- he volunteered competency. He also said, yes, and he's competent to. That was not requested by counsel or the court.

So what you have here is a collection of three purposes. Amenability to treatment under the Kentucky's juvenile court statute: can he be treated? Can he be rehabilitated as a juvenile? Is he competent? Volunteered by the psychiatrist. And can he be involuntarily committed? Which, quite frankly, had nothing to do with the legal case. It was an effort by Mr. Hectus to get his client out of the jail and into a treatment facility in the long delay prior to trial.

That report was taken and used by the prosecution as evidence on the question of criminal responsibility.

On the tape, which has not been transcribed, but is in the record, because they rely on it, the judge says that, I made no request -- and I'm quoting -- for a full-blown psychiatric interview dealing with any character disorder or emotional disturbance.

Dr. Lange testified in juvenile court that, I do not feel as an expert witness I can give testimony on something I was not asked to evaluate.

If -- obviously there are considerations here whether a report of this type -- and I'm presuming, because I'm rushed for time, that Estelle v. Smith covers this situation, but presuming it does, can this type of report be used in rebuttal.

And we think there's a good argument that it can, but not in this case, and not under these facts. And the reason is because the interest that this Court talked about in Harris v. New York, which would be the genesis of this use of rebuttal, have to do with preventing perjury.

Harris itself says that the evidence has to be relevant and meaningful on the topic. And those are the failures that we submit to this Court that occur in using Dr. Lange's report, because it was really misused by the prosecutor, who was not the prosecutor in juvenile court, and perhaps he didn't know what this report was about.

But using this report on irrelevant issues, we feel, takes it out from under the argument -- and a reasonable one in certain situations -- that the State has to have a fair opportunity to rebut a mental state --

QUESTION: You're saying that the report was used on irrelevant issues. I take it the trial judge admitted the test -- admitted it?

MR. McNALLY: The trial judge admitted the report.

QUESTION: Well, isn't that some indication that the trial judge, applying Kentucky law, thought that it was relevant?

MR. McNALLY: On the face of it. But the trial judge didn't know why this report was done. And because Dr. Lange wasn't there to testify, defense counsel couldn't demonstrate it on the spur of the moment.

This is very much a surprise, as in Estelle v. Smith, to defense counsel that this report was used.

QUESTION: Oh, so now you're asking us to take your word that the trial judge misapplied Kentucky law?

MR. McNALLY: I'm just saying the trial judge didn't know what we know now. That's what I'm saying. And that it was a surprise. And it was a surprise because the trial judge ruled that the two circuit court competency exams could not be used, exactly for that reason.

The trial judge -- the Attorney General -- the prosecutor did not request an independent psychological examination to rebut this evidence, as they could have, as they claim they could have in their brief.

Instead, they took a report from juvenile court and misused it.

So that brings us -- we argue the case out from under the ambit of Harris v. New York, because it's not proper rebuttal.

And unless there are questions, we'd like to reserve five minutes.

CHIEF JUSTICE REHNQUIST: Yes, thank you, Mr. McNally.

We'll hear now from you, Mr. Smith.

ORAL ARGUMENT OF DAVID A. SMITH, ESQ., ON BEHALF OF THE RESPONDENT

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

When more than one person takes part in the same crime or in the same series of crimes, such as we have in this case, we think that the State has a legitimate interest in trying those defendants together before a single jury.

We think that this enhances the truth finding function of that jury, because it gives them a greater perspective on the entire case. And we think that this tends to ensure against there being inconsistent results, because it requires a forced consensus on the facts, as well as a forced consensus on the relative degree of culpability on the part of the defendants who have taken part in that crime.

We think that this is fair to the government, and it's fair to the defendants for the same reason.

We submit that this particular interest is manifested by the Kentucky rules of procedure concerning joinder of defendants for trial and consolidation of offenses for trial.

And we think that this interest is very similar to one that this Court has already recognized last year in the case of Lockhart v. McCree, when the Court discussed Arkansas' use of the unitary jury system such as we have in Kentucky, where the same jury that is called upon to resolve all the questions of guilt in the case is also called upon to resolve all the questions of punishment as well.

So we think we have both of these valid interests implicated in this particular situation.

We submit that not only was the joinder in this case proper, but would emphasize the fact that Mr. Buchanan did not request severance of defendants for trial. We think it's because he could foresee that, if anything, he would derive a benefit from being compared with someone who faced a potentially stiffer punishment for having taken part in the same murder offense.

We think that the crux of this matter is that David Buchanan in this case has no countervailing interest at stake. While the government had these two others I've just alluded, he, David Buchanan, does not have a constitutional right to empanel particular jurors in the case.

What the Constitution guarantees to a criminal defendant is that the individual members of that jury be impartial. And that is exactly what we had here, those who expressly stated that they would comply with their oath and follow the law of the case.

So this was a capital proceeding in which a noncapital codefendant had been properly joined for trial, and not only on the murder offense but also the sodomy and robbery charges, which would give rise to the aggravating circumstances here.

And so that is why the government in this case had an interest not only in trying the defendants before the same single jury, but also in excluding the Witherspoon excludables, because this was the only way to carry out the State's legitimate capital sentencing scheme.

We think that it was proper because the State tailored the exclusion of jurors in this case to the particular matter before them.

In the McCree case, the Court held that a death qualified jury is constitutionally valid. We submit that if the same jury is fair and impartial with respect to the capital defendant, then there's no reason why it would not be so with respect to has noncapital codefendant as well; certainly not because David Buchanan too did not face death as a possible punishment.

If it is fair to the one, we think that it is fair to the other.

Now, Mr. Buchanan has pointed out the infrequency with which this situation arises. But we don't think that, in and of itself, should give rise to a finding by this Court that the process here resulted in constitutional error.

The question before this Court is not whether one procedure was better than the other, or whether one was more economical than the other.

The question, instead, is whether the procedure that was actually used in this case resulted in a constitutional error, which we submit that it did not.

This is not some kind of a freak occurrence. This is dictated by the circumstances of the crime. And we would point out that this situation could in other contexts as well.

Here, the reason that David Buchanan was exempted from candidacy for the death penalty was based on -- it was based on an interpretation of what this Court has said in Inman v. Florida.

Right or wrong, the prosecutor conceded the point. We think the focus instead of being on who pulled the trigger should have been on whether or not Buchanan intended the victim's death, which the Kentucky Supreme Court found that there was sufficient evidence of intention.

But that situation would arise not only there but any time the -- more than one person takes part in a murder, that there would be aggravating circumstances apply only to the one and not the other.

QUESTION: Mr. Smith, suppose -- suppose the noncapital defendant was tried alone, and the State said -- asked every juror the same kinds of questions that he would in a capital case, attitude about the death penalty. And every time a juror was opposed to the death penalty, he asked that the juror be excused for cause.

And the judge said, well, that's all right. You can ask the questions, and I'll follow the death case procedure. And he excuses jurors for cause who are inalterably opposed to the death penalty.

MR. SMITH: And you're talking about an entirely separate trial where Buchanan --

QUESTION: I am, I am.

MR. SMITH: -- does not face death as a possible punishment?

QUESTION: I am, I am.

MR. SMITH: Again, we think that while there would not be any particular reason for the government to do this, they would not have the interest in carrying out the capital sentencing scheme, on the other hand --

QUESTION: You don't think excusing jurors for cause, supposedly, in a ground that would be irrelevant to the case would raise any questions about fair cross-section?

MR. SMITH: I don't believe so. I think, again, all that the defendant is entitled to in the way of an impartial jury is those who are willing and able -- as long as those who wind up on the jury panel are willing and able --

QUESTION: Well, it may be one thing to eliminate jurors about whom there's some question about their ability to follow the instructions, but -- that might meet any cross-section argument.

But what about eliminating jurors just because they have an attitude that's irrelevant to the case?

MR. SMITH: I think it would be a much closer question there, and I think certainly it would result in a State procedure violation.

QUESTION: Well, why isn't that a much closer question in this case?

MR. SMITH: Well, because there, the government does not have an interest in doing this. And I think there is a certain balancing process involved here.

QUESTION: Well, to the extent in that other -- in my example, there might be a fair cross-section argument that wouldn't be present in a capital case, why isn't that question here with respect to the noncapital defendant?

MR. SMITH: Your Honor, I didn't mean to say that this would be a fair cross-section requirement. I think you only get into --

QUESTION: But you do think it might be a closer question about --

MR. SMITH: Your only -- I think you only get into that realm where there is a wholesale exclusion of the jurors in every case for reasons unrelated to their ability to decide the particular matter before them.

Again, this has to be a recognizable group.

QUESTION: You think the death qualified -- or the people who are opposed to the death penalty just aren't an identifiable group?

MR. SMITH: No, because as this Court held in the McCree case, that we don't define groups simply by their shared attitudes. It has to be something much more distinctive than this.

And I think the importance there is the fact that there's a difference between wholesale exclusion in every case, and one where it's tailored to the particular matter that's being tried.

QUESTION: So a judge could excuse all jurors in the venire who were born on Friday, if he felt like it, and there would be no fair cross-section violation? Something that had absolutely nothing to do with the case.

MR. SMITH: There I think we would get into a possible fair cross-section.

QUESTION: I don't see how that's much different than Justice White's question.

MR. SMITH: Well, perhaps I wasn't focussing on his question as much as I should. I was looking more in terms of juror impartiality instead of the fair cross-section requirement.

Yes, I think that could pose a problem with regard to the fair cross-section requirement of the Sixth Amendment.

But I kept emphasizing --

QUESTION: You say the State has an interest in having -- in conducting a joint trial. That's your answer as to why this was not an irrelevant inquiry.

MR. SMITH: Well, yes, exactly. The jurors in this case were tailored to the entire matter before them. We had the interest in joining the defendants for trial. We had the interest in the unitary jury system, such as we use in Kentucky.

And here, as well --

QUESTION: General Smith, I'm not sure I understand your answer to Justice White, then.

If you rely entirely on the joint trial aspect of it, then your answer to him must be -- the case he hypothesized would be decided differently; that would be an unconstitutional procedure, if there were no capital defendant in the trial. It would be unconstitutional to death qualify the jury.

I think you've conceded that.

MR. SMITH: Very well.

We respectfully submit that the principles of the McCree holding should dictate the same result here. We think that if, indeed, as it is, the jury is constitutionally valid with respect to the capital defendant, then it would be so with respect to the noncapital defendant.

QUESTION: Don't you empanel separate juries in [ILLEGIBLE WORD] cases?

MR. SMITH: No, I'm not aware of any case in which that has been done. The Kentucky statute provides it for good cause shown that a different jury could be used.

But I'm not aware of any situation in which --

QUESTION: Could be used to try out whether the recidivism aspect of the trial?

MR. SMITH: Yes. And again, we'd have a problem there, because that second jury would not -- would not have the perspective that the first jury did with regard to the principal charge. And also there would be an occasion for there to be inconsistency.

The second jury might disagree as to the facts or the culpability as opposed to what the first jury has determined.

There's a second question involved in this case, and that deals with the introduction of psychological evidence in rebuttal of David Buchanan's claim that he had suffered from an extreme emotional disturbance at the time of the murder.

What we had here was a series of, first, three psychological examinations that had taken place before the murder, one as long as six or seven months beforehand. And Mr. Buchanan relied on the results of those exams to support his claim that he had suffered from the emotional disturbance.

What he complains about is that the prosecutor in this case used a fourth examination that had been conducted some seven months after the murder spree to rebut his claim.

He argues that this violated his Fifth Amendment privilege against self-incrimination, as well as his Sixth Amendment right to counsel. And he bases these claims squarely upon this Court's holding in Estelle v. Smith.

Now, in that case, the Court held that where the defendant does not initiate a psychiatric examination, and he does not attempt to introduce the results of that exam into evidence, that the government cannot then compel him to undergo further testing if the result could be used against him at trial.

We think that the present situation is entirely different from what the Court encountered in the Estelle case. First of all, Mr. Buchanan and his attorney at the time, Mr. Hectus, requested this examination by joining in a motion to that effect.

Later on at the trial, they injected the issue of extreme emotional disturbance into the case. This was not an element of the crime for which the government bore the burden of production or persuasion. It was an affirmative defense, one that would mitigate the crime down from murder to manslaughter.

But the burden was clearly on Mr. Buchanan to raise this defense if he thought the evidence warranted it.

And finally, the examiner in this case we think was neutral, while the one in Estelle clearly was not. The examiner in Estelle took on an adversarial role at the trial when he testified as to an element that the government had to prove in its case.

And perhaps here I should point out that the Lange report that Mr. Buchanan is complaining about in this case, there was indeed a section at the very end of that report where Dr. Lange volunteered his opinion as to competency to stand trial.

That was not introduced into evidence in this case. The witness read from the report, and the trial judge in this case ruled that the opinion as to competency to stand trial would have been irrelevant, and so the jury did not hear about that.

What we are --

QUESTION: Mr. Smith, is emotional disturbance a defense to the offense under Kentucky law?

MR. SMITH: It is a mitigating, affirmative defense. The -- when the defendant suffers from an extreme emotional disturbance, first of all, that applies only to an intentional theory of murder.

The only effect this would have would be to reduce the charge down from murder to manslaughter, which is punishable by a lesser penalty range.

What we're asking the Court to do in this case is to expressly hold what we think was given tacit approval to in the Estelle opinion.

And the rule that we would urge, therefore, is that whereas here the defendant requests the examination, and then the defendant injects the issue into the case, that the government can then compel him to undergo further examination in order to test the validity of the claim that he is making.

And the rationale for the rule that we urge here is that in a very real sense the defendant in that situation is testifying through his expert witness about information that is known only to him.

And as this Court noted in Estelle, under that circumstance, his silence could deprive the government of the only effective means by which it could test and verify the validity of that claim.

We respectfully submit that the Fifth Amendment privilege against self-incrimination should not be used as a shield to distort the truth.

We think that this situation is analogous to where a criminal defendant takes the witness stand at trial, and then he does not care to undergo cross-examination. Clearly, he can be required to do so.

And so under the rule we're urging here, we submit that the prosecutor in this case could have asked that the trial be stopped after Mr. Buchanan had introduced evidence from three earlier reports, and could have asked that he be required to undergo further testing.

Instead, what he did was simply employ a much less intrusive method. He used information that was already available to him.

And as far as his Sixth Amendment claim is concerned, he claims he was denied the right to counsel, we don't think there's any factual basis for that. The record shows that he did have an opportunity to consult with Mr. Hectus when the decision was made to join in the motion requesting the examination. And the same can be said about the legal decision to inject this issue of extreme emotional disturbance into the case.

Lastly, we would submit that if the Court does find a Fifth or Sixth Amendment constitutional violation here, that it would apply only to the murder charge, not the robbery or the sodomy conviction, because as I've stated before, extreme emotional disturbance is a defense that applies only to a theory of intentional murder.

And then last of all --

QUESTION: Well, now, Mr. Smith, you are satisfied that that extreme emotional disturbance defense was properly raised in this case?

MR. SMITH: We don't think that the case was practiced as well as it could have been.

QUESTION: Does it require provocation in Kentucky law before that can be a defense?

MR. SMITH: Yes, it does, so what he had --

QUESTION: Was there evidence of provocation here?

MR. SMITH: No, there was not, Your Honor. This --

QUESTION: So was it properly raised as a defense?

MR. SMITH: No, it was not. But what we were concerned about is the fact that as a result of the evidence that Mr. Buchanan was allowed, right or wrong, to introduce, the jury heard on five separate occasions that Buchanan was emotionally disturbed.

And we think under these circumstances the government was entitled to rebut that claim with Dr. Lange's report.

Last of all, we would submit that any constitutional error would be harmless, because as the Kentucky Supreme Court noted, the evidence of Mr. Buchanan's guilt was overwhelming, and the report that he is complaining about here was largely cumulative of what he had already introduced

For that reason, we would ask the Court to --

QUESTION: Do you make the same harmless error argument with regard to the sentencing?

MR. SMITH: Excuse me?

QUESTION: Do you make the same harmless error argument with regard to the length of the sentence? Because I guess the jury decided both guilt and the sentence?

MR. SMITH: Yes, yes.

So we would ask the Court to affirm the judgment below.

That concludes my argument unless the Court has any further questions.

QUESTION: I have a further -- would you explain again, Mr. Smith, what the State interest is in -- not in having the same jury for both defendants on the guilt phase; I understand that -- but for having the same jury for the guilt and the sentencing phase?

MR. SMITH: It's the unitary jury system, just like we have in Kentucky, just like this Court dealt with the rule out of Arkansas in the McCree case.

Again, it's a concern for perspective, and a concern for consistency. We don't think there ought to be a situation where one jury would disagree with the other.

Any time you've got two different juries --

QUESTION: Well, this isn't a matter of disagreeing. How would one disagree with the other?

I mean, you have one jury -- they're passing upon different questions. There's no occasion for them to disagree with one another

I'm talking about one jury for the guilt phase; another jury for the sentencing.

MR. SMITH: We simply that this would enable them to make a more informed decision, having heard all the evidence from the guilt phase. We think that they should also --

QUESTION: Well, you could have those jurors present during the guilt phase trial, it's just that you'd use --

MR. SMITH: But again, with two different juries, one may think that one sentence would be appropriate, while the other would not, based on having heard the same evidence side by side.

QUESTION: Well, that's so, but one of them wouldn't pass upon it. It wouldn't be the business of the two.

MR. SMITH: We think -- we think that in a real sense this would affect their determination of guilt, just knowing what the possible punishment, or just speculating as to what the possible punishment would be.

Is there any further questions?

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Smith.

Mr. McNally, do you have something more? You have five minutes remaining.

REBUTTAL ARGUMENT OF KEVIN McNALLY, ESQ., ON BEHALF OF THE PETITIONER

MR. McNALLY: Thank you, Mr. Chief Justice.

Justice O'Connor, trial counsel requested separate juries. He recalls requesting --

QUESTION: Separate juries for guilt and innocence as well? Just separate juries throughout?

MR. McNALLY: No, just punishment. Just punishment.

QUESTION: Just sentencing.

MR. McNALLY: Just sentencing.

QUESTION: Separate sentencing juries is all that was requested?

MR. McNALLY: Well, now, the trial judge -- there was a discussion which is in the Appendix, we included it all, says, well, what about substitute juries? Which is the alternate juror remedy referred to by the dissenters in McCree.

The judge himself suggested that. And he also said, now this is real creative, Mr. Prosecutor. Did you read all these creative remedies here? They're very creative, but you have to go to a higher court.

And here we are. I think that quite confidently I could say that I think Judge Leibson would very much have been willing to use one of these remedies, had he had a green light.

And I think that --

QUESTION: Would you explain to me again, Mr. McNally, what exactly the two -- say you had had two juries -- what would each of the two juries been asked to decide, in your view?

MR. McNALLY: The first jury would decide everything but the question of punishment, if Stanford was convicted of intentional murder.

QUESTION: Everything for both defendants?

MR. McNALLY: Everything.

QUESTION: For both defendants, decide everything?

MR. McNALLY: Everything.

QUESTION: Except punishment?

MR. McNALLY: Except the punishment for -- if Stanford was convicted of intentional murder.

QUESTION: Let me put it this way. There are four issues: guilt or innocence as to each of two defendants; length of sentence as to the noncapital defendant; and sentence of the capital defendant.

Now, when you say everything, tell me again, which -- what would each of the juries --

MR. McNALLY: Three of the four. The only issue that they would not decide would be the death penalty, if I could put it that way.

QUESTION: I see. And you have a separate jury just for the death penalty question on the capital defendant?

MR. McNALLY: Which is the procedure used in the states --

QUESTION: Well, I just want to be sure I understand what you're proposing.

MR. McNALLY: Yes, sir.

QUESTION: Well, why couldn't you just reverse it? They decide three -- they decide every issue except the penalty for your client?

MR. McNALLY: They could do it that way?

QUESTION: Well, why do you --

MR. McNALLY: Well, no, wait, you couldn't do it that way, because you'd have to death -- I'm sorry, Justice White -- you'd have to death qualify the jury, then.

QUESTION: Yes, but you get another jury.

MR. McNALLY: If there was a separate sentencing jury just for Buchanan, that first jury --

QUESTION: I know, I know, but you want -- what you want -- you want to avoid death qualification for your client at the guilt stage.

MR. McNALLY: Yes.

QUESTION: That's what you're really after.

MR. McNALLY: Yes, sir.

QUESTION: But if -- I don't know why it wouldn't be fair to you, in light of McCree, to death qualify the jury, and that jury trials guilt or innocence for both defendants. It also decides on the death penalty for the person charged with capital murder.

MR. McNALLY: I understand now.

QUESTION: Then there's a separate jury empanelled for your client.

MR. McNALLY: I think that would satisfy Buchanan's complaint --

QUESTION: Well, that has to be --

MR. McNALLY: -- as to punitiveness, yes, sir. I didn't understand.

But of course that wasn't -- I think the point with Justice O'Connor is that there was exploration of alternatives. You know, each one of the seven was not discussed in the trial court.

Turning to the second issue --

QUESTION: What compulsion was there to testify? I mean, you know, that's -- that's what you're complaining about? Compulsion --

MR. McNALLY: The compulsion comes in the fact that a juvenile in juvenile court goes to the psychiatrist or psychologist when the juvenile judge says so, no matter what.

There is inherent compulsion, much like --

QUESTION: Well, he asked for the examination.

QUESTION: His lawyer asked for it. MR.

McNALLY: It was a joint motion.

QUESTION: Well, whatever. He asked for it. When was he compelled to testify?

MR. McNALLY: The same compulsion as existed in Estelle v. Smith on the issue of competency. A juvenile who is sent to determine amenability to treatment, competency, although it was volunteered by the doctor, that's not what the judge had in mind. Or whether he can be committed for treatment pending trial under the involuntary hospitalization procedure is compulsion.

Somebody who is sent to a doctor to be involuntarily hospitalized is compelled. They have to -- they may not speak at the exam, but they have to go to the exam.

That's where the compulsion comes in.

QUESTION: That's not the situation here when he asks for the exam himself.

MR. McNALLY: Well, this was a joint motion, though. It's important to remember that. With the approval of the judge. On issues unrelated to responsibility, on the question of whether or not he can be involuntarily hospitalized.

Because his lawyer asked for it doesn't necessarily remove the compulsion. And all the cases from the Fifth and Eleventh Circuit indicate that because the defense lawyer may request --

QUESTION: I mean, you could say that, or you could say because the State -- just because the State asked for it, it doesn't necessarily remove the voluntariness.

I tend to think it's the latter rather than the former.

MR. McNALLY: We'd rely on all the Fifth and Eleventh Circuit cases that have interpreted Estelle. And all of them have said consistently that it does not matter that the defense attorney requested the exam.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. McNally.

The case is submitted.

(Whereupon, at 1:49 p.m., the case in the above-entitled matter was submitted.)

Attribution:

The Oyez Project

Featured:

Gray v. Mississippi - Oral Argument

Fri, 09 Jan 2009 14:48:30 +0000

Case:

Gray v. Mississippi

Media File:

85-5454_19861112-argument.mp3

Related Transcript:

1986_85_5454_argument.xml

Transcript:

Argument of Andru H. Volinsky

Chief Justice Rehnquist: You may begin whenever you're ready, Mr. Volinsky.

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

The Court's decision in this case, whether it be based on a legal error, a narrow constitutional holding, or a very broad constitutional holding, must be based on an understanding of the sequence of events of voir dire--

Unknown Speaker: Let me ask you one question, Mr. Volinsky, just based on your first sentence, if I may.

Mr. Volinsky: --Right out of the box.

Unknown Speaker: You say the Court's holding could be based on a legal error, on a narrow constitutional ground, or on a broad constitutional ground.

Is there some non-constitutional ground on which we could reverse the Supreme Court of Mississippi here?

Mr. Volinsky: That's in essence what I meant with the legal error.

That ground... if the Court will recall, the basis that the Mississippi Supreme Court had for finding this error harmless was that the Mississippi Supreme Court said the trial judge had erred in previous rulings.

The Mississippi Supreme Court also went on to find that the trial judge had made his previous Witherspoon rulings based on the trial judge's belief that the jurors weren't being sincere with him when they said that they had scruples that would prevent their being seated in the case.

In finding that the trial judge didn't believe them and then going on to say, well, they shouldn't have been excused, the Mississippi Supreme Court misunderstood Witt.

I think to make sense Witt has to be read to mean that jurors should only be excused if they honestly maintain scruples that prevent or substantially impair them.

Unknown Speaker: Well, then if that is your example of legal error, which I believe was one of the things, that itself would be a constitutional ground, wouldn't it?

Mr. Volinsky: I don't want to argue with the Court about whether it should be legal or constitutional.

I think what Mississippi did is misunderstand Witt in that one respect, and I think without going into a very broad analysis of Davis this Court can say: You misunderstood Witt; if the trial court did not believe those earlier jurors, he wasn't wrong, and therefore we don't even get to this offsetting penalties concept.

This Court also must recognize, in reaching its conclusion, the clear distinction between the jury function of fact finding in the guilt-innocence phase and the discretionary function involved in determining whether a particular community, a particular community, believes that the appropriate sentence in a particular case is death.

The voir dire in this case was an alternating type voir dire.

It didn't alternate on each particular juror, but alternated on the panels.

To start with, twelve jurors were seated, they were questioned by the prosecutor.

He exercised some peremptory challenges, one juror was excused for cause.

They were replaced.

The prosecutor stayed on his feet, questioned again until he was satisfied with the twelve in the box.

They were then passed over to the defense lawyer.

Unknown Speaker: Is that the standard Mississippi procedure?

Mr. Volinsky: I believe it is, although my experience is--

Unknown Speaker: You're from New Hampshire.

Mr. Volinsky: --I'm from New Hampshire, Your Honor.

From my understanding, it is commonly followed.

The defense would then question.

Then any replacement jurors would be requestioned by the prosecutor.

The important thing is that the jurors were questioned in each other's presence.

The jurors in the box, as well as the jurors waiting to be seated in the audience, could hear the questions, the answers, the motions, the rulings, and the ramifications of the rulings.

Each side in Mississippi had twelve peremptory challenges.

Unknown Speaker: Well, can't counsel move that the waiting members of the panel be taken out of the courtroom?

Mr. Volinsky: I believe they can.

I believe there's also a motion for sequestered individual voir dire, where each juror is brought in singly.

But that is discretionary.

Unknown Speaker: No such motion was made here.

Mr. Volinsky: I'm sorry?

Unknown Speaker: No such motion was made here.

Mr. Volinsky: No, Your Honor.

And certainly, when the problems developed the prosecutor didn't ask in the middle of the proceedings to change the procedure.

There were ten motions made for cause by the prosecutor related to Witherspoon grounds.

The first eight were denied.

Each of those jurors were then struck by a peremptory challenge by the prosecutor.

The ninth cause challenge based on Witherspoon grounds was granted.

It was against a juror named Schleh.

This is at pages 503 to 506 of the transcript.

It happens at a time when the prosecutor still has peremptory challenges remaining.

The tenth juror was Mrs. Bounds, who was excused over complaints by the defense counsel that she was qualified to sit.

Mrs. Bounds' voir dire begins at 529 and 530 of the trial record, which is just a little bit before what you have in your joint appendix.

It starts with the judge asking Mrs. Bounds two questions:

"Do you know of any reason you couldn't be a fair and impartial juror, Mrs. Bounds? "

"No, sir".

"Do you think you meet all the tests to be a fair and impartial juror? "

"I'll try".

We then go on to the prosecutor's questioning.

He asked her a few questions about pretrial publicity, and then he goes on--

Unknown Speaker: That's a little ambiguous, "I'll try".

Mr. Volinsky: --Well--

Unknown Speaker: It's not quite a yes, is it?

Mr. Volinsky: --It's not quite a yes, but I think you'll see later on that she's been listening to this judge say, would you automatically vote against the death penalty regardless of the evidence.

Her response to that is: "I will listen".

So I think in context, she's saying she'll do the best she can.

Her answers--

Unknown Speaker: That may not be good enough.

Mr. Volinsky: --Excuse me?

Unknown Speaker: That may not be good enough.

Mr. Volinsky: Well, any ambiguity on whether she can do the job or not, whether she's qualified or not, is cleared up later in the record, and I don't think there's a problem with that.

The prosecutor asks her:

"Do you have any conscientious scruples against capital punishment when imposed by law? "

Her response at the outset is: "I don't know".

"Well, I don't know either. "

says the prosecutor.

He says he knows how he feels, and then he goes on and tells her he's trying to find twelve people without conscientious scruples to sit on the case.

That may be a proper purpose for him.

It wasn't a proper ground for excluding her.

The trial judge then intercedes on the prosecutor's request.

He asks four or five different times, would you automatically vote against the imposition of the death penalty without regard to any evidence that might be developed in the trial of the case?

Mrs. Bounds at first says: "I would try to listen".

And then later, when he says

"No, answer it yes or no. "

she says:

"No, I would not automatically vote against. "

In the course of this questioning, I think it's appropriate to note the court makes a statement in the nature of a factual finding about Mrs. Bounds' credibility.

He says: 18 of the joint appendix.

Later on, a couple pages later, he goes on and says:

"Mrs. Bounds, you're honest and sincere. "

So he repeats the same finding.

After this series of questions, the prosecutor asks Mrs. Bounds:

"What would you do in this case? "

"Could you send this man here to the gas chamber? "

And she says: "I don't think I could", which, if it ended there, would probably disqualify her.

But it doesn't end there.

There's a motion to strike for cause.

The judge tells us what his assessment is of her ability to be seated at this point, and he tells us:

"I don't know whether she could vote for it, I don't know whether she couldn't. "

"She told me she could just a while ago. "

That's at page 20 of the joint appendix.

At this point the prosecutor has not carried his burden of proof as an adversary seeking excusal of a juror.

The judge isn't convinced that she cannot properly sit.

There's a brief exchange regarding the prosecutor's precarious position, some more questioning by the judge.

Mrs. Bounds says:

"I think I could vote for the death penalty. "

The prosecutor then makes another motion.

This time it's not a motion to strike, it's a motion to reverse some of those prior rulings that Your Honor had asked about.

There's a give and take at the bench and the trial court says:

"Go ask her if she could vote guilty or not guilty. "

"If she gets to equivocating on that, guilty or not guilty, I'm going to let her off as a person who can't make up her mind. "

Well, the prosecutor goes out and asks her: "Could you reach a verdict"?

"Yes, I could".

"If the verdict is guilty, could you vote for the death penalty? "

"Yes".

Unknown Speaker: Well, Mr. Volinsky, I suppose the trial judge messed up the whole thing, didn't he?

I guess we'll all agree to that.

Mr. Volinsky: I certainly--

Unknown Speaker: What do you think he should have done at the time this long exchange, which we're all familiar with, I might say, with Mrs. Bounds was concluded?

Should he have started all over again, dismissed the panel and started all over again?

Mr. Volinsky: --That would have been a certain way out of this quagmire.

I guess the Court's question presumes that this trial judge believed that he had erred five times previously.

Unknown Speaker: Say it again, that this trial judge believed what?

Mr. Volinsky: That he had indeed erred previously with respect to the five early jurors.

I'm not so sure that that's the case.

If indeed he felt that way, he could have reversed his earlier rulings and given this defense lawyer a chance to rehabilitate the jurors, which because of the nature of the way this voir dire happened, the defense lawyer never asked the excused jurors any questions.

But be that as it may, I think the easiest way out of this would have been to throw the whole panel out... they were all infected with the questioning and attempts to get off the jury... and start anew.

Unknown Speaker: Were you of counsel below?

Mr. Volinsky: No, I was not.

All nine members of the Mississippi Supreme Court found that it was error to excuse Mrs. Bounds for cause.

To paraphrase Adams, it does not appear in the record that Mrs. Bounds was so irrevocably opposed to capital punishment as to frustrate the state's legitimate effort to administer the death penalty.

She at the end very clearly said, I could reach a verdict and I could impose the death penalty.

One other thing I would point out, we do not have in this case the ping-pong effect that Mr. Justice Powell described in Patton.

That's where the prosecutor gets up and asks a bunch of leading questions of an unprepared lay juror and smacks her in one direction, and then the defense lawyer does the same thing and smacks her back, and then the judge has to decide which set of leading responses is true.

Mr. Stegall, the defense lawyer at trial, never asked Mrs. Bounds any questions at all.

So we have the prosecutor asking confusing and sometimes leading questions on the one hand, and then we have the trial judge asking open-ended questions that get responses that qualify her to sit.

And at the very end, it's even the prosecutor who asks: "Can you reach a verdict"?

"Yes".

"Can you vote for the death penalty? "

"Yes".

I think it's pretty clear that Mrs. Bounds was erroneously excused.

Having found that, the majority of the Mississippi Supreme Court then went on to its rationale about why the error was harmless.

The rationale used this offsetting penalties approach.

That is, you erred against the state by denying their motions, therefore it's okay to err against the defense.

Jurors are certainly not fungible commodities where this kind of tit for tat approach is appropriate.

Each juror brings something with him or with her.

Unknown Speaker: Well, that isn't the theory.

It isn't just a tit for tat.

The theory was that if the prosecution had had another peremptory challenge, the prosecution would have exercised it as to this particular juror, and therefore the excusing of this juror is harmless.

Mr. Volinsky: Number one, I'm not clear that the Mississippi Supreme Court quite spelled it out, but that was my impression, as is yours.

But when I saw the Respondent's brief, what you're describing is basically an unused peremptory's rendering an error harmless.

Unknown Speaker: Right.

Mr. Volinsky: The Respondent in this case in their brief at 25 seems to distinguish the instant matter from an unused peremptories issue by saying that they would have, if they could.

Unknown Speaker: Of course, how do we know that they would have?

Mr. Volinsky: I think that's the problem with the unused peremptories argument.

I think when you consider how voir dire is conducted, you have a trial lawyer who's focused on a juror, getting at questions and answers, trying to determine demeanor, trying to determine how this juror will fit in with those, as well as individually, trying to figure out what the other side's going to do with this juror, and then trying to calculate what's going to happen behind him.

I think that, even not doubting a prosecutor's sincerity, the nature of the situation changes from moment to moment to moment.

I think it is--

Unknown Speaker: You can't be 100 percent certain, but there can be no doctrine of harmless error, Mr. Volinsky, if you require 100 percent certainty.

It's hard to imagine an error you can say was 100 percent certain to have been harmless.

Mr. Volinsky: I agree.

Unknown Speaker: All you're saying here is that you can't say for sure that the prosecution would have challenged this juror had the prosecution had one more left, but gee, doesn't it seem very, very likely indeed.

The prosecution is saying this juror is so bad that she should be excused automatically, and to think that if he had a peremptory left he wouldn't have used it, I find it difficult to believe that that could have happened on the facts of this case.

Well, I find it difficult to believe otherwise.

It seems to me that she was fairly well rehabilitated, and that there is an element of distinct speculation as to whether that peremptory, if it existed, would have been exercised.

Mr. Volinsky: I think the nature of her responses changed dramatically from the very front to the very end.

Unknown Speaker: Why was the prosecutor asking to have some of his peremptories back, then, if he didn't intend to use them?

Do you think if the judge had said, okay, you can have them back, the prosecution would say, thank you, Your Honor, I don't intend to use them, I want to use them on later witnesses... on later people?

It's inconceivable, isn't it?

Mr. Volinsky: Well, I'm not 100 percent sure that he would have used them there, and you've said that 100 percent sure--

Unknown Speaker: He would have had one mad trial judge on his hands if he didn't, wouldn't he?

Mr. Volinsky: --You bet, you bet.

The other issue, the other way to look at this--

Unknown Speaker: What are you assuming, that he gets one peremptory back or all five, when you're in this debate?

Mr. Volinsky: --I don't know how we tell.

The trial judge clearly excused these people or clearly refused to excuse these people.

I don't know how we parse out whether one comes back or five come back.

I think it's speculation on this record that the trial judge believes he committed an error.

I don't think he quite believes that.

So I can't tell.

Unknown Speaker: Mr. Volinsky, if we had a case where all the other eleven jurors had been selected at the time a Mrs. Bounds was examined and the state still had ten peremptory challenges left and the trial judge is convinced from the testimony of the prosecutor that indeed the prosecutor would have used one of them on Mrs. Bounds, could we have a harmless error inquiry?

Mr. Volinsky: I think in that circumstance, Your Honor, you have to look at Judge Goldberg's concurrence, where he talks about not only the impact of the erroneous ruling as to juror X, but the impact of the erroneous ruling as to the rest of the panel.

I think that having a pocket full of peremptories, as opposed to a few--

Unknown Speaker: Well, on the facts that I pose, in your view could we have a harmless error inquiry perhaps?

Mr. Volinsky: --I think there's a problem with it.

The problem is... and it happened here.

This trial judge refused to excuse these jurors.

Because of his ruling, the defense lawyer made no attempt to question the jurors, rehabilitate the jurors, or whatever.

If we were in a situation, as Your Honor poses, where we're down to the last person and the response from the juror is, I could vote for a death penalty, what's the defense lawyer supposed to ask her to make her position any more clear?

I think it presents problems in that procedural context.

Unknown Speaker: I must confess, I really don't understand this part of the argument, because no matter whether the trial judge was right or wrong, the state did elect to use its peremptories.

If he did not believe the jurors and he thought they could have sat legitimately, the only way the prosecutor could get him off was by-using a peremptory.

So on that hypothesis they had to use the peremptory, right?

And on the other hand, if they were telling the truth they were qualified and the only way the prosecutor could get them off was to use a peremptory.

Mr. Volinsky: Right.

Unknown Speaker: So I don't understand how there's even an arguable basis for saying the prosecutor wouldn't have used his peremptories.

He had to, no matter what your theory is.

Mr. Volinsky: I think he would have used them.

I think--

Unknown Speaker: Well, he did use them and that's--

Mr. Volinsky: --Yes, I agree, I agree.

There is some discussion by the Respondent and the amici that this case is governed by Lockhart and that because of Lockhart jurors with scruples don't comprise a recognized group.

Just very briefly, I think Lockhart makes it very clear that there is a special context for capital sentencing.

The jury's function in capital sentencing is not the very strictly channeled fact finding of guilt or innocence.

I think it's discretionary.

It involves representation of that community's beliefs, perhaps moral outrage, perhaps mercy.

It's based on the weighing of factors that an appellate court can't go back and say this weighing was appropriate.

How can we compare age of a defendant versus the way the crime was committed?

It simply isn't... it isn't something that can be replicated or even viewed critically by an appellate court.

This court in the Bobby Caldwell case talked about the appellate court's inability to glean from the record the intangibles of a jury's decision to sentence to death or not to sentence to death.

I think those comments are quite appropriate here in this case.

The only other point I would touch on is, there is some argument by the amici and the Respondent that this Court has already used a harmless error standard in death penalty cases in the context of Zant versus Stephens.

That case in part is completely distinguishable from this case; in part, it supports Petitioner's position.

Very briefly, you have to look to the metaphor used by the Georgia Supreme Court, which involved the pyramid and the narrowing effect of the jury selection, of the jury selection of who is eligible and then who deserves the death penalty.

The function of aggravating factors in Georgia was simply to see which defendants were death eligible.

Therefore, the finding of one or ten aggravating factors was no different.

Any one beyond the first was a redundancy.

In a case like this, in this instance, where Mississippi requires a unanimous verdict, a decision to improperly excuse one juror cannot be considered a redundancy.

She could have been the juror that saved Mr. Gray's life.

A failure to reach a unanimous verdict results in a life sentence.

The other point, just to go back to Mr. Justice Scalia's question about 100 percent versus very likely versus the harmless error, which is a reasonable possibility that it couldn't affect this verdict, I would submit that it's the prosecutor, the state, the Respondent, who must establish harmless error beyond a reasonable doubt in this kind of an error.

We're not dealing with something like defective assistance of counsel, where the prosecutor can't control what happens.

Clearly, this prosecutor did control what happened.

He did not need to... he didn't have to stand on his motion.

Unknown Speaker: --What more could he have done?

Mr. Volinsky: This is distinguishable from the Strickland scenario, where the prosecutor can't prevent the error because he doesn't control what the defense lawyer does.

In this situation, the prosecutor formed the questions, he made the motions.

He didn't have to continue to press the trial judge to excuse this juror.

He could have said: Yes, she can vote for a guilty verdict; yes, she can vote for death' I withdraw my motion.

It was within his power, is what I'm saying, as opposed to the ineffectiveness claim, where the defense properly bears the burden.

Unknown Speaker: Well, but it wasn't realistically... it wasn't realistically within his power to do anything otherwise unless, and not have this juror seated, unless he were given back one of the peremptories that had been taken away earlier.

Mr. Volinsky: That presumes that he has a right not to have this juror seated.

Unknown Speaker: That's right.

Mr. Volinsky: He didn't have that right under these circumstances.

I didn't expect the Court not to have very many questions.

I'd like to reserve the portion of the remaining time if the Court doesn't have further questions.

Chief Justice Rehnquist: Thank you, Mr. Volinsky.

Mr. Volinsky: Thank you.

Argument of Marvin L. White, Jr.

Chief Justice Rehnquist: We'll hear now from you, Mr. White.

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

In this case the Mississippi Supreme Court held that the force and effect of the trial court's ruling in this case was to correct an error that he had committed in refusing to dismiss other jurors for cause after they had unequivocally stated that they could not vote to impose the death penalty in any circumstance.

The court further held--

Unknown Speaker: Of course, the trial court never made a finding to that effect, did he?

Mr. White: --I think the trial court said that, in the paragraph where the trial court is talking about that, he said: I have cheated the state out of this.

And I think that is a finding.

It says the court is of the opinion... and that's on page 26 of the joint appendix:

"The court is of the opinion that it cheated the state by making him use... by making the district attorney use his peremptory challenges in at least five instances, and I'm going to allow them in this particular case. "

So I think the trial court is clearly recognizing his error there, that he has made a mess, as he said himself, and created this situation that we have a juror who, he says in his findings of fact, also that she can't make up her mind.

He has a totally indecisive juror.

Unknown Speaker: Then I'll ask you what I asked your opposing counsel: What should the trial judge have done in order to clean up this mess that he created?

Mr. White: I think he probably should have used the word "peremptory" instead of "cause" there, and I think that's probably what he meant to say.

But he used the term "cause" and, if you read prior to that, in a couple of paragraphs prior to that, he got the terms "peremptory" and "cause" confused there.

And I think the judge fully meant to use the word "peremptory" instead of "cause".

But we have this situation here where he used the word "cause" and things moved on.

Unknown Speaker: Well now, it's not just inadvertent, because he says later:

"I'm not going to add any to his challenges. "

I think you've got to admit he knew what he was doing, that he knew he was dismissing this juror for cause, rather than giving the prosecutor another peremptory.

Mr. White: He says, I'm not going to give you five more.

Unknown Speaker: It would have been smarter, perhaps, to give the prosecutor another peremptory, but he didn't.

He excused this juror for cause, and he knew what he was doing.

Mr. White: And I think he was backing off and excusing her because she was indecisive in her answers and he was not satisfied that she was in fact rehabilitated and everything else, and was saying there that he was going to excuse for cause.

The Mississippi Supreme Court, of course, looking at this situation, decided that this was a case in which they had to step in and define what the trial judge meant or decide what the trial judge meant.

And we find there that they did.

They said he properly did what he did, instead of dismissing this whole venire and starting over again at this point.

Unknown Speaker: Mr. White, let me ask you, too, about Mississippi procedures.

Is this case typical of the jury selection procedure in Mississippi?

Mr. White: Pretty much typical.

What we do in Mississippi, we put twelve people in the box and then the voir dire starts.

And the challenges are exercised, and the state has to present the defense with twelve jurors in the box that we accept, and then the defense can voir dire them and then remove those.

Unknown Speaker: Is that similar to Alabama and Louisiana, Tennessee?

Mr. White: I'm not familiar with their practice--

Unknown Speaker: It seems very strange to me, an unusual kind of a way.

Mr. White: --It's called the Stennis method of jury selection, and it's name after Senator Stennis.

When he was circuit judge, it started then.

And it has been approved in the federal courts in Gray v. Mississippi, the non sequestered voir dire.

And there is no provision, and it has been consistently held that there is no entitlement to, a sequestered voir dire in this case.

It's discretionary with the judge, of course.

So in looking at this, there are five jurors in this case that do not equivocate in the least in their opposition to the death penalty.

And the judge... something the defense counsel has skipped over here is when the judge talks about, and he says:

"I'm in a precarious position by making the state use its challenges when we clearly have met the law in about six cases. "

"Well, I think I had one or two that just used this to get off the jury, at least one person that I'm positive of. "

That's on page 20 of the joint appendix.

So the judge is not saying that all of these people were using this to just get off the jury.

He said, I've got one or two, and one that I'm positive of.

So it is not conclusive that he was removing these jurors just because he was thinking that they were just using it to get off the jury.

What he was doing was trying to insulate this case from Witherspoon error.

So, because it is clear that if you use a peremptory that there is no question there is no Witherspoon problem.

And by forcing the state... when he uses the first one, when he requires the state to use the peremptory on the first challenge, to Mr. Ruiz:

"We would like to use one of our challenges at this time. "

"Well, I'm not going to excuse him for cause. "

"You'll have to use one of your challenges. "

In one of the others, he just... "I guess", the judge says,

"you're going to use one of your peremptories. "

He just tells the state when they move for cause.

He says no, use a peremptory.

So the state was forced to use peremptories in those five cases.

There are three jurors there that they used peremptories on that are in the joint appendix, and of course those are clearly jurors that that was the proper use of a peremptory, for the use of a peremptory.

So we have a trial record, of course, that is very confusing, and this confusion, we submit, is cleared up by the Mississippi Supreme Court in holding the trial court was correct in correcting the errors there from forcing them to use peremptory challenges.

Unknown Speaker: General White, I was just reading over again the colloquy.

It's really puzzling.

But when the judge says

"Oh, I think there are one or two that just used this to get off of the jury, at least one person that I'm positive of. "

Do you think that's the equivalent of a finding of fact, that there was one of these that was excused that the state had to use a peremptory on that was guilty of perjury?

Mr. White: Well, I don't know.

Maybe they did have some--

Unknown Speaker: See, it's conceivable that they might have been very happy to get off the jury because of this, and they may have perhaps just emphasized, given more emphatic answers or something.

I don't know just how to interpret that statement.

Mr. White: --And I don't either.

I mean, I think that that is one of those situations where you have... and it happens in every jury... somebody comes in, they've got someone sick in the family, and they just don't want to serve.

And the Mississippi Supreme Court addresses that in its opinion, saying that, you know, we are a busy society and people don't want to take the time out to do this, this duty of serving on a jury, and they think up every excuse in the world to get out.

So this is a situation that we have to address, and we're going to look at here that this trial judge here was doing the best he could here to try to--

Unknown Speaker: Doesn't it have to be part of your case that he says at least as with respect to one, because he says at least one person that I'm positive of, that that's pretty much the equivalent of saying I think that prospective juror was lying?

Mr. White: --I think he probably does.

He has that feeling that he's lying, maybe not absolute proof for that juror.

And there's no way, I guess, that you could ever prove that that juror was perjuring himself, but he has that gut feeling, and that's what he's saying there.

Unknown Speaker: Would that gut feeling be adequate to justify excusing him for cause without finding that he was not telling the truth?

Mr. White: I think that would be adequate reason if someone... if the judge feels like he's lying in the voir dire.

I think that would be adequate reason to remove him for cause.

Unknown Speaker: You wouldn't remove him; you'd leave him on.

You'd leave him on and make the state exercise its... well, no.

What would he do?

Mr. White: I think the judge could remove him on his own motion.

If someone is not going to be honest in his answers on voir dire, then how can the judge be confident that this person is going to render an honest verdict.

If he gets mad for staying on there, he may take it out on either party.

Unknown Speaker: To remove him as a perjurer?

Mr. White: Right, or for whatever cause.

I'm going to excuse you for my own cause.

I don't think, you know, if one side or the other didn't exercise a challenge there--

Unknown Speaker: But that's not what he did.

He did just the opposite.

Mr. White: --Yes.

Unknown Speaker: He left them on because they were lying.

Mr. White: Yes.

Unknown Speaker: He said, these people who say that they can't vote against capital punishment, they're lying.

Mr. White: Yes, I see.

I was looking at the overall picture, not this particular case.

Unknown Speaker: Did the state, with respect... and we don't know which juror this is.

But with respect to any of these, before using its peremptory did the state support a motion to excuse for cause on the ground that this juror is not believable, I think he's just trying to get out of jury duty?

Mr. White: Well, are we talking about Juror Bounds now?

Unknown Speaker: No, no, no.

The earlier ones, the earlier ones, when the state was--

Mr. White: Not that I recall on the record, I don't think.

I think the full voir dire--

Unknown Speaker: --So that the notion that the judge was too tough on the state and perhaps should have granted the motions for cause really arises during the colloquy about Mrs. Bounds for the first time?

Mr. White: --Well, I think he took exception to that in the very... with the Juror Ruiz, and he says--

Unknown Speaker: What page are you on, Mr. White?

Mr. White: --It's on the first.

Page 3 right now I'm looking at.

I think that's not the place where he objects to the judge making him use a strike.

0....

"All right, we intend to use. "

I don't find it right now, but in one of the cases where the judge required... on one of these jurors, the state did take exception and... oh, yes.

I can't find it right now.

In one of the jurors he did say that--

Unknown Speaker: The top of page 4, possibly?

Mr. White: --Yes.

"And let the record show the state takes exception to the court's ruling that that, because we think. "

--and the judge interrupts and says:

"All right. "

"This is a classic one for cause. "

And so the state did preserve its objection to what the judge was doing in that case.

So we have a situation here that is ripe, I think and we contend, for the application of a harmless error rule here, because as was stated in Rose v. Clark, per se errors are those errors that abort the basic trial process or deny it altogether.

That was not done here.

The basic trial process was not aborted here.

Mr. Gray received a fair trial.

He does not make the contention that the jury that convicted and sentenced him wasn't impartial.

He's saying that because we excused this one juror that we have a technical Witherspoon, Witt, Adams violation, and therefore the case should be reversed on the basis of Davis versus Georgia.

And we contend that this case is so factually different than Davis versus Georgia that the Court could leave undisturbed Davis versus Georgia if they chose.

Unknown Speaker: Mr. White, if the state had no peremptory challenges left and there was no question that earlier jurors had been properly excused... assume that it's not the facts that you are alleging here... and the state had no peremptories left at the time that Mrs. Bounds or someone like her is erroneously excused for cause, would you still urge a harmless error inquiry?

Mr. White: If there had been no request for an additional peremptory... I mean, that's within the discretion of the trial judge, there, too... I don't think we would be here, if we hadn't requested an extra peremptory, which he could have given to the other side.

Unknown Speaker: But if we were to agree with you, what is to protect us from an assertion every time that there is a Davis versus Georgia error on the part of the trial court?

Mr. White: Davis versus Georgia--

Unknown Speaker: What is to protect us from the prosecution coming in and saying: Well, yes, this juror shouldn't have been discharged, but nonetheless, but nonetheless the trial court made these five errors earlier in not allowing peremptories, and therefore we want you to review the disallowance of all of the peremptories?

Is that what we're letting ourselves in for by listening--

Mr. White: --Well, as most harmless error cases must be, they must be looked at on a case by case basis.

I mean, there's no broad firm and fast rule in a harmless error context.

You've got to look at that error in that case.

And I think that we have to--

Unknown Speaker: --Well, at least here you've got a finding by the State Supreme Court that there was an error in dismissing those earlier jurors.

Mr. White: --That's true, we have.

The State Supreme Court--

Unknown Speaker: And also, that a subsequent juror was entitled to sit, except for.

But do you think that the Mississippi Supreme Court found harmless error?

Mr. White: --Well, they did say in there that they could show no prejudice, the defendant could show no prejudice.

They mentioned prejudice, and I don't really know that that really kicks in the whole harmless error thing, I mean, just by saying that there was no prejudice to Mr. Gray.

Unknown Speaker: Well, normally wouldn't we remand to a state court to find harmless error if it hadn't found it?

Mr. White: That's what's been done, I think, in Rose v. Clark and Delaware versus Van Arsdale.

They were sent back to for--

Unknown Speaker: Mr. Attorney General, about how much time would it be if the judge at that point had said, okay, there's nothing else I can do, I'll throw the whole jury out?

How many days would have been lost?

Mr. White: --It would have probably in this particular case, since this is one of the populous counties and they do have a term of court starting every other month, it could have been probably within a month, because in a capital case a special venire is drawn and it takes a couple of weeks to compile and draw and serve a special venire.

Unknown Speaker: It would take about a month?

Mr. White: A month or two, if that's the situation there.

Unknown Speaker: Mr. White, let me follow up on Justice Scalia's question.

Is it Mississippi law that the trial judge in his discretion may go beyond the statute and allow as many additional peremptories to the state as he sees fit?

Mr. White: Well, I don't know that we've ever had a case--

Unknown Speaker: You have no cases on that?

Mr. White: --on that.

It has been done in cases, but never been raised as an issue.

I mean, I've seen cases where it's happened, but it's never been an issue that the court has spoken to.

So it's something that our court says the trial judge has very wide discretion in seating a jury, and it has said that--

Unknown Speaker: One last question.

Where is Harrison County?

Is that Jackson?

Mr. White: --No, it is not.

It is on the Mississippi Gulf Coast, Gulf Port, Biloxi, where the Kiesler Air Force Base is, I think.

This is where the victim--

Unknown Speaker: Not a small rural county?

Mr. White: --No, it is not.

It's a very populous area.

Unknown Speaker: Did you say there are actual cases where the trial judge has given more peremptories?

Mr. White: Yes, sir.

Unknown Speaker: To both sides or just to the prosecution?

Mr. White: Well, it's usually been both, to both sides.

You know, if you give to one you give to the other.

Here this is not, of course, what the situation would have been.

The state was saying, give us back one that you made us erroneously use, you erroneously made us use.

So, but there are cases where extra peremptories have been given.

In fact, in one capital case we had that was on appeal, I believe to Mississippi, the trial court I believe gave an extra six to both sides.

So it is just something within the--

Unknown Speaker: Feeling good that day.

Mr. White: --Yes, feeling good.

I mean, I cannot explain that and we'll see what our court has to say about that maybe.

Unknown Speaker: Was there a request for another peremptory here?

Mr. White: In this case?

Unknown Speaker: Yes.

Mr. White: No, he said we're not asking for an extra one, we're just asking you to give us back the one that you erroneously made us use.

We didn't ask for an extra one; we just said, correct your ruling on this earlier thing.

Unknown Speaker: Can I ask you.

I must confess this case confuses me.

Every time I look at it I seem to see it differently.

But on page 49 of the joint appendix, in the Mississippi Supreme Court's discussion of the case they point out that the trial judge refused to excuse there jurors and required the state to exercise peremptory challenges.

And it says:

"It is abundantly clear from the record that his reason for doing so was because he believed that the jurors were simply claiming to have conscientious scruples against the death penalty. "

and so forth.

Should we... what if we were to take that as a finding of fact that all of those, the judge correctly concluded that those jurors were shading their testimony or lying?

If that were true, then would it not also follow that the trial judge correctly required the state to exercise its peremptories?

Mr. White: Well, that is one way to look at it, I think, that it could have been that.

I think that what he's saying, what the court is saying here, though, is that what he believed at the time... maybe they don't say that there, but that what he believed at the time that he was doing this.

And that's why they go ahead and reach the conclusion they do.

I think that if it had been clear from the record that these people were in fact shading their testimony or whatever... but I think that comment in there about the judge saying, I had one or two, I think that that throws a whole different light on it.

You know, I just had one or two, not five but just one or two.

Unknown Speaker: Well, but isn't the answer that the Supreme Court's opinion later makes it clear that the Supreme Court, does not, does not think that there was a finding of fact that these jurors were lying?

I mean, on page 52 they say:

"Although the route taken to Mrs. Bounds' dismissal was a circuitous one indeed. "

blah-blah-blah-blah,

"the force and effect of the trial court's ruling was to correct an error he had committed. "

So the Supreme Court acknowledged that the trial judge wrongly thought these people were dissembling.

Mr. White: Sure, and I think that's what it is.

I think they're saying at that earlier point, just pointing out what he thought at the time when he did it, but he was in error thinking that.

And we're saying that when he finally came down by using the word "cheated" and all that, he's realized his error there.

Unknown Speaker: Well, that's certainly how I understood it.

Mr. White: Yes.

I mean, that's the way I interpret that.

So I think that this is the prime case for the application of a harmless error rule.

I was saying that the fair cross-section argument that Petitioner makes, saying that Lockhart does us no help, gives us no help, is that he says that the fair cross-section somehow applies to the guilt phase, but does not apply to the sentence phase, which if I remember it all right the whole purpose of Lockhart and Witherspoon and all this to remove these people from the jury was for the sentence phase.

So I don't think we get into a fair cross-section.

He's saying that it just diminishes the fair cross-section arguments.

The Court held, of course, in Batson... I mean, in Lockhart... that the fair cross-section argument does not apply to the petit jury, just to the box that the jury is drawn from, the venire is drawn from.

Unknown Speaker: Mr. White, how clear is it that, assuming the mistakes hadn't been made and assuming they were mistakes concerning the earlier refusals to dismiss for cause... assuming those mistakes had not been made, how do we know that the peremptory challenges that the state would thereby have had in its pocket wouldn't have been used up by the time this juror came around?

Mr. White: Well, as I said, in the method of choosing jurors, the jurors are numbered and they are put in there numerically.

As they are... as one is removed, the next one comes in.

So you don't get any just random sampling.

It's the next one of numbers that come in and take their place in the box.

So only the jurors that actually were in that jury would have been the jurors there at the time that Mrs. Bounds was there.

Am I making myself clear?

Unknown Speaker: If that's in answer to my question, I don't understand it.

What I'm concerned about is that the state, assuming that the trial judge had ruled correctly--

Mr. White: Okay.

Unknown Speaker: --initially and had not required the state to use its peremptory challenges, right, how do we know what those peremptory challenges wouldn't have been used up on some other juror before this juror, before Mrs. Couch?

What was her name?

Mr. White: Because of... Mrs. Bounds.

Because those jurors in between, those stricken jurors--

Unknown Speaker: Right.

Mr. White: --and Mrs. Bounds are the same ones that are sitting there.

They would have been the same ones sitting there.

In other words, the error was not pointed out to the court again until Mrs. Bounds got there: You've made us use our peremptories.

Unknown Speaker: Yes, but he might have used the peremptories if he had had them at hand.

Mr. White: But we have... he did use some peremptories in the meantime and strike other jurors in between those five and Mrs. Bounds.

Unknown Speaker: When was the last one before Mrs. Bounds?

Mr. White: I'm not just sure.

Unknown Speaker: What I'm saying is that if there were, you know, five people that came in before Mrs. Bounds, if he had had another three peremptories he might have used up those three.

Mr. White: Well, that's true.

But the record shows that the jurors that came between the last strike and Mrs. Bounds were not stricken for peremptory challenges and, you know, there was no request at that time.

Unknown Speaker: Of course they weren't.

He had none.

Mr. White: Yes, but I mean he didn't ask for any, either.

And he didn't become concerned about this until Mrs. Bounds got there.

He found those jurors acceptable.

Unknown Speaker: Well, maybe his concern was less with them than with Mrs. Bounds.

But if he had had the peremptory he might have used it anyway.

Mr. White: He very well may have.

Unknown Speaker: So it's all speculation that we're dealing with.

Mr. White: Well, I think that it's reasoned speculation, though.

I think from looking at the record and seeing what those other jurors said, those jurors in between there did not equivocate at all.

They didn't present a situation in which it can be reasonably discerned he would have had to use a strike.

I think we have a record, whereas in Davis versus Georgia we didn't have a record and they were trying to use peremptory challenges after the trial was over.

Here everything went on at trial and is of record.

We have a different situation here.

Rebuttal of Andru H. Volinsky

Chief Justice Rehnquist: Thank you, Mr. White.

Mr. Volinsky, do you have something more?

You have six minutes remaining.

Mr. Volinsky: Thank you, Your Honor.

Just very briefly, I'd like to go back to the point of whether or not the five jurors were erroneously stricken.

Looking at the Mississippi Supreme Court opinion that deals with this issue, maybe I'll confuse it more, but I'll take my try.

Justice Dan Lee at 47 starts discussing the problem with the excusal, and he goes through this dissertation about the twelve angry men and how jurors are often reluctant to serve, and really capsulizes the problem.

He then talks about how voir dire should have been done by the trial judge.

And then on page 49 he discusses that it is abundantly clear from the record that the trial court refused to strike because he believed them insincere.

After that, there is never a finding that the trial court was wrong in believing them insincere.

Unknown Speaker: He says:

"There is no logical reason not to allow the trial court in this situation to correct its erroneous ruling. "

Mr. Volinsky: It's correct the erroneous ruling if you misunderstand Witt, and I think that's what happened with the Mississippi Supreme Court.

If this trial judge didn't believe the attestations of the jurors, they shouldn't have been excused.

And I think this court, this State Supreme Court, doesn't argue with the--

Unknown Speaker: "Notions of judicial economy make it clear that the trial court should be allowed to recognize and correct its error early in the proceedings. "

I interpret that to mean its error, its error in the dismissal of the other jurors, or refusing to--

Mr. Volinsky: --I guess my concern is that this record doesn't support your interpretation.

This trial judge at the very end of the colloque that we've been talking about at the trial is given a very clear chance on a motion of the prosecutor to reverse the five earlier rulings.

And he says at the very, very end, he says, I am not going to do it, I'm not going to go back and give him five more.

He refuses affirmatively, affirmatively refuses to go back and change his earlier rulings.

This trial judge did not correct prior rulings because he didn't change them.

I would also argue that his excusal of Mrs. Schleh on cause grounds showed that he knew how to... he knew what Witherspoon was about and could apply it when he thought the jurors were sincere and could refuse to apply it when the jurors were insincere.

Additionally, there are a number of places in the record where the trial judge and the prosecutor talk about jurors using this as an excuse to get off the jury.

The prosecutor asked Mr. Lassabe:

"Do you believe that or are you just telling me that to get off the jury? "

I think it was a clear problem, a problem that could have been corrected as soon as it raised its head by stopping, excusing everyone else, and going to an individual voir dire.

But once we got to Mrs. Bounds, I think Justice Blackmun is absolutely correct, the only way to fix the problem is to throw everyone out and start over again.

Just as a matter of record, this wasn't a special venire.

This was the regular venire that was summoned here.

The prosecutor... the judge had talked the defense lawyer out of a special venire because you had to tell the jurors that they were being summoned for a capital case, State versus David Gray, and they all agreed that they didn't want jurors looking out for the David Gray publicity.

So this was just the regular venire of a couple hundred people.

Chief Justice Rehnquist: Thank you, Mr. Volinsky.

The case is submitted.

Mr. Volinsky: Thank you, Your Honor.

Unknown Speaker: The Honorable Court is now adjourned until Monday next at 10:00.

Attribution:

The OYEZ Project

Featured:

Lockhart v. McCree - Oral Argument

Fri, 09 Jan 2009 14:48:34 +0000

Case:

Lockhart v. McCree

Media File:

84-1865_19860113-argument.mp3

Related Transcript:

1985_84_1865_argument.xml

Transcript:

ORAL ARGUMENT OF JOHN STEVEN CLARK, ESQ. ON BEHALF OF PETITIONER

Chief Justice Burger: We will hear arguments first this morning in Lockhart against McCree.

Mr. Attorney General, you may proceed whenever you're ready.

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

The facts simply stated are these: Ardia McCree on Valentine's Day of 1978, in the course of robbing La Tienda Gift Shop and Service Station, killed Evelyn Roughton, the owner operator, with a shotgun blast to her face.

He was charged with capital felony murder.

The state sought the death penalty.

McCree was tried before a jury which was qualified in accordance with Witherspoon and nine prospective jurors who would not consider the full range of punishments to include the death penalty were removed for cause.

McCree was found guilty and sentenced to life without parole.

The conviction was appealed to the Arkansas Supreme Court and was affirmed.

Unidentified Justice: General Clark, where in Arkansas was McCree tried?

Mr. Clark: He was tried in Ouachita County, Justice Rehnquist, where the crime was committed, in Camden, Arkansas.

Unidentified Justice: And where did the venire come from, from a particular state judicial circuit in that case?

Mr. Clark: It is the state judicial district which comprises two counties, Union County and Ouachita County, population of about 75,000 together.

Post conviction relief was denied to Mr. McCree.

In 1980 he filed his petition for habeas relief, which leads us to this Court today.

I'll discuss the issues of impartiality and then cross section as raised by Mr. McCree, but before I undertake to analyze McCree's particular constitutional claims I think it's important that we put this case in its perspective.

This case may be one of the most important criminal cases this Court will consider this term, for if the decision below is affirmed the potential is that some 90 percent of those inmates who comprise death row, numbering 1500, may have to be retried; that in 33 of the 37 states that allow for capital punishment their statutes may have to be changed through special sessions; and that some 3,000 to 5,000 inmates minimally who were charged with capital offenses but got sentences of less than death, either life without or life imprisonment, may potentially be tried again.

I believe it's essential for those claims--

Unidentified Justice: General Clark, I would assume that would only be if such a holding were made retroactive.

Mr. Clark: --Yes, Your Honor.

In putting these claims in perspective, McCree's basic complaint is that Witherspoon excludibles were barred from potential membership on the jury that heard the guilt phase of his trial.

Factually, those nine prospective jurors were excluded due to the requirements of two entirely neutral and unassailable features of Arkansas state law.

The first feature is the state of Arkansas has determined that in criminal cases the issue of guilt and innocence should be decided by the same jury, as we believe that the jury acts as a safeguard, if you will, in the criminal justice establishment between the defendant and that establishment: that the policy and the law that require that has been the policy in our state for more than seven decades.

Secondly, the state of Arkansas naturally decided to exercise its option, when granted by Witherspoon, to prevent any juror from determining sentence who said he would, explicitly vowed, that he would under no circumstances follow state law, which included the penalty of death.

Unidentified Justice: General Clark, may I inquire about this matter?

Does it make any difference here that, after the state had excused these jurors for cause under Witherspoon, that it later waived its request for the death penalty?

Mr. Clark: Your Honor, I don't think that it makes a difference.

The state has--

Unidentified Justice: Does that leave open for manipulation by the state in a given case an option to excuse jurors under Witherspoon and then plan all along to waive a request for the death penalty?

Mr. Clark: --Your Honor, I don't think it was the intent of the state to leave open an option to procedurally come back and attempt to bar this effort.

The state of Arkansas faces this fact: With some 27 inmates on death row and 146 other persons who were charged with a capital offense but got some lesser offense, the need to determine factually whether the assertions of McCree are constitutional, and what we will be facing if in fact this Court affirms the decision of the court below.

And so in the waiver of that procedure which we waived, and I admit that to this Court, we thought we had a chance to get at the essence of the merits of this issue and get some direction from this Court as to where we should go as a matter of policy.

Unidentified Justice: But does the record disclose in this case why the state opted to proceed as it did and forego requesting the death penalty, after initially embarking on that course?

Mr. Clark: Your Honor, the answer to that question is yes, that in this instance, as with Grigsby in the case that was a companion case, that they were consolidated... and as the Court may be aware, Mr. Grigsby died while he was in prison... that in this instance what we did was we waived this issue because of the fact that, as I said, we wanted to get to the crux of the issue before the Court.

Unidentified Justice: I don't think that responds to my question.

My concern is that is I understand this case the state proceeded initially when it empaneled a jury on the premise that it was going to ask the death penalty.

Mr. Clark: Yes, Your Honor.

Unidentified Justice: And it excused for cause some jurors under the Witherspoon doctrine, right?

Mr. Clark: Yes, Your Honor.

We excused those who said they would not follow state law.

Unidentified Justice: And then at some time after or during the trial, the state decided not to seek the death penalty after all.

Mr. Clark: In the trial with Mr. McCree, the verdict that was returned was life without parole.

The state in that instance, Your Honor, I don't think waived.

Unidentified Justice: The state never backed off and decided not to seek the death penalty?

That had been my understanding.

Mr. Clark: Not in McCree, Your Honor.

In Grigsby that was the case.

In the Grigsby trial we did--

Unidentified Justice: But not in McCree?

Mr. Clark: --Not in McCree.

Unidentified Justice: All right.

Mr. Clark: Yes, Your Honor.

McCree must prove why it is constitutionally impermissible for the state of Arkansas to follow both of these rules at the same time.

He must demonstrate that the Constitution requires that Witherspoon excludibles be eligible for the guilty phase in juries in capital cases.

Put differently, I submit to this Court that McCree must show that the Constitution demands that jurors be eligible for the jury who will not follow state law.

This Court in Wainwright and Witt stated that the party seeking to exclude jurors for bias has the initial burden of establishing that bias.

Clearly, Arkansas did that here when it discovered that those nine prospective jurors explicitly vowed that they would not follow state law.

The right to an impartial jury based in the Sixth and the Fourteenth Amendments can be defined best succinctly, I think, as the right to have one's case decided solely on the basis of the evidence presented and of the instructions of the court.

McCree's evidence does not even begin to show jury bias within the meaning of this Court's opinions.

It provides no basis whatsoever for concern that the jurors who voted to convict McCree violated their oaths, or that they relied on something other than the evidence presented or the arguments of counsel, or that they disavowed and did not follow the instructions of the court.

In fact, McCree has presented no attack of any kind on the performance of his jurors.

The key flaw in McCree's approach is its failure to look at the individual members of his jury who actually decided his case.

The only fact that we know about the jurors that were not allowed... that were allowed, excuse me, to serve, is that they stated they were willing to consider the full range of punishments in this case, which included the death penalty.

The fact that the jury might possibly impose the death penalty alone if justified does not establish that those jurors in McCree's case are incapable of rendering an impartial verdict.

To the contrary, there is a presumption of impartiality which attaches to McCree and to McCree's jurors in particular, which arises, one, from the trial court's determination that they were qualified to sit: and two, from their stated oath they would follow state law.

Unidentified Justice: Mr. Clark, doesn't your argument prove too much?

Supposing they excluded all Democrats, for example, and left just nothing but Republicans, and you could prove all the Republicans were perfectly impartial.

Would that be permissible?

Mr. Clark: Your Honor, if in fact you were trying to exclude these and identify them as denial of a cross-section because they were a distinct group and they were recognizable and they were sizable and they were systematically excluded, perhaps you would be moving toward that argument, which I will address later in my argument to this Court.

But in this instance what McCree has said and the Eighth Circuit sort of merged was the impartiality and the cross-section violation.

There's nothing in the record that demonstrates that McCree's jurors were anything other than impartial.

Unidentified Justice: Well, I understand that.

But in my hypothetical, if you had nothing left but Republicans would that be permissible?

Say they're all impartial.

Mr. Clark: If in fact in qualifying these jurors they were excused because they were going to be partial--

Unidentified Justice: No, no.

They just excluded all Democrats and left nothing but Republicans.

Mr. Clark: --Well, if you start taking just--

Unidentified Justice: And they're all impartial Republicans.

Mr. Clark: --that's not permissible.

Unidentified Justice: That's not permissible?

Mr. Clark: That's not permissible, just to say all Democrats or all members of associations, I don't think, because you would have to demonstrate that they're not--

Unidentified Justice: All I'm suggesting is it doesn't seem to me a complete answer to the case to say that the remaining jury, examined individually, each one of them there's no objection to.

That's what your argument is, as I understand it.

Mr. Clark: --Your Honor, no, that's not the thrust of my argument.

It's not just that the remaining jury was impartial.

It was the fact that these jurors were excluded not because of their belief in the death penalty; they were excluded because they would, they vowed explicitly they would, not follow state law.

In the Court's example, if all Democrats said, we will not follow state law, and that left only Republicans, then I think you'd have a properly comprised jury.

If you just excluded Democrats for the reason they held that title or avowed to that certain political party, then I think you're treading on constitutional violations that can be demonstrated by the defendant.

Unidentified Justice: Well, General Clark, I thought that Respondent's argument was more along the line of an argument that by excluding these jurors at the guilt-innocence phase of the case that it was a procedure whereby the state has organized the procedure in such a way that it would be more likely to result in a guilty verdict because of the evidence produced by the studies, not that the jury panel was in fact biased or not impartial, but that it was a procedure by which the state is more likely to obtain a jury which will vote for a guilty verdict.

I thought that was the thrust of their argument.

Mr. Clark: Well, Your Honor, if that is the thrust, I would look at it from this standpoint.

The procedure is that of a unitary system, a unitary jury, one that determined both guilt and penalty.

It is the policy of the state of Arkansas, founded in this state interest, that we believe that same jury should consider guilt and innocence as well as penalty, for we believe that in fact it acts as a safeguard, as a check, if you will, against that criminal justice establishment.

Unidentified Justice: Well, that leads to the question of whether the state's interest, which of course is substantial, is more substantial than the defendant's interest in having a fair procedure.

Mr. Clark: I submit to this Court that is.

But in taking the procedural argument one step further, what McCree does argue, Your Honor, is in fact that the policy in Arkansas is not good policy: We don't like this policy of the unitary jury.

That is not the same as, there is a constitutional violation in this process, and it's clearly distinguishable.

If Mr. McCree wants the policy changed, his proper forum is the Arkansas legislature in changing that policy.

But in regard to the procedure, the state interest that we determine that we want to protect first and foremost is that we believe that jury does act as that safeguard in that criminal justice establishment and it is important that the same jury hear guilt and punishment so as not to diminish their responsibility as a juror, so that one juror sitting only in the guilt phase says, I am absolved of all concern and responsibility as to penalty because I am not affected in terms of making that decision, or the reverse if you were the penalty jury.

And for those reasons, as well as reasons of economy and efficiency, but the first one is that state interest.

Without conceding the validity of any of McCree's assertions to this Court, as to the mere existence... the issue as to the mere existence of any predilection or notion or concern by defendants in general, without some other objective criteria, is to establish a standard that allows them to be excluded because of their predilection or their notion, allows them to be excluded, is to establish an impossible burden for the state to meet.

I implore this Court to consider this.

Eight out of ten people in this nation have support, based on surveys, of capital punishment, in Arkansas better than nice out of ten.

We have said repeatedly throughout this case, and this Court has affirmed, that we have the right in certain instances to exclude certain persons or professions from the jury: lawyers, if you will, doctors in some instances, in Arkansas chiropractors, dentists, dental assistants and others.

We have said that that has a legitimate basis in doing so.

They perhaps make up a sizable, distinct group that may have a predilection or some notion or concern as to guilt or innocence.

But if we rely on social science data to jump to a legal conclusion, you put the burden on the state of having an impossible task of meeting, a jury that in fact would be impartial as required by the Sixth Amendment.

What the Constitution requires in not that a jury have a particular mix of viewpoints.

Unidentified Justice: Did I understand you that if 80 percent of the people of this country are against the Sixth Amendment, it doesn't apply?

Mr. Clark: No, Your Honor, I would not say that and would never contend that.

Unidentified Justice: You were getting awfully close.

Mr. Clark: We do not contend that, Your Honor.

What the Constitution requires is not a jury with a particular mix of viewpoints that the defendant would prefer, but a jury that is made up entirely of persons who will evaluate the evidence--

Unidentified Justice: General, when you said that Arkansas perhaps excluded lawyers or doctors and chiropractors, were those just hypothetical examples or does Arkansas in fact exclude certain occupations?

Mr. Clark: --Specifically, Your Honor, we do exclude professions: doctors, lawyers, chiropractors, dentists, dental hygienists, firemen, Christian Scientists.

There's a whole group that may be excluded, yes, Your Honor.

Unidentified Justice: As a matter of mandate or as a matter of choice on the part of the person who's summoned for jury duty?

Mr. Clark: Your Honor, it's matter of choice.

It's not a matter of mandate.

Unidentified Justice: There's no statutory category?

Mr. Clark: No statutory, except for felons, which are disqualified, which are in fact disqualified.

Unidentified Justice: But this recital is not a statutory exclusion that you were reciting?

Mr. Clark: No, sir, Your Honor.

It is not a statutory exclusion.

It is a statutory definition of those who can be excluded.

Unidentified Justice: Are you saying as a practical matter you don't find doctors, lawyers, and businessmen on juries, generally speaking?

Mr. Clark: No, Your Honor, I would not say that.

They do comprise juries from time to time in my state and I'm sure across the country.

But in this instance, if you take the rationale that is advanced by McCree and say that you cannot distinguish a group because of some single notion or predilection that they have, then where do you stop?

Where does this Court finish litigating that matter?

Because in this instance this policy of Arkansas has been if you are a doctor you can be excused, if you are a chiropractor you can be excused, not that you must but you can be.

This may in fact then rise to the issue of some sizable group.

It may rise to the fact that there's some distinct group, and may show some effort, at least arguably from social science data, as to how they may affect or predict actions on a jury and be excluded for some systematic reason.

What I have argued to this Court is that I would ask you to consider sincerely that what the Constitution requires, as I said, is not a particular mix of viewpoints, but in fact a jury made up entirely of persons who can and will evaluate the evidence fairly.

It would be folly, I submit to this Court, to go beyond that requirement and find a jury bias in every case where the defendant shows that his jurors' attitudes somehow did not perfectly mirror the range of attitudes in the general population.

Concerns of this kind about the relative mix of juror attitudes on issues other than matters to be decided must be recognized under some other constitutional theory, I submit to this Court.

The Court has recognized... the court below, excuse me, the Eighth Circuit recognized, McCree's claim that the exclusion of Witherspoon excludibles violated the constitutional right to a jury drawn from a fair cross-section of the community.

But I submit to this Court, in doing so it seriously distorted the requirements in order to establish a prima facie violation.

As this Court has identified, that violation is shown when you identify a group that is distinctive in the community, one that the representation of that group is sizable in relation to the rest of the community, and that they're systematically excluded.

This Court has never precisely defined cognizability, but it is clear that the Court has never found that attitude alone defined a cognizable group.

There's no basis for applying that requirement, I submit, in this cross-sectional representation, where the excluded group shares only one single attitude.

This Court has held that the basic purpose of the right to a jury drawn from a fair cross-section of the community is the furthering of that democratic function of the jury, both by placing a democratic body between the defendant and the criminal justice establishment and by also making certain that no segment of society is barred from participating in the criminal justice system.

To that end, the requirement protects only those groups that are perceived by themselves and others as distinct in the community, a distinct segment of that community.

The exclusion of jurors who share a single attitude, I submit to this Court, does not threaten, does not threaten the democratic function of the jury and thus raise the constitutional issue.

Attitudes, unlike the characteristics that underlie the recognized groups that this Court has identified in cross-sectional cases, are subject to change.

It's been firmly established that the number of Witherspoon excludibles in the population in dwindling.

The facts indicate that Witherspoon excludibles are not a fixed class, that they very in characteristics by which they are identified, and that that variance is subject to change.

The classification of Witherspoon excludibles as a group on the basis of attitude alone is vastly different from those traditional classification characteristics as sex or origin or race.

Unidentified Justice: May I ask, Mr. Attorney General, there are two issues and they are independent, are they not, the cross-section issue and the impartiality issue?

Mr. Clark: Yes, Your Honor, there are two issues.

Unidentified Justice: You're going to address the... I gather we could disagree with the Court of Appeals on the cross-section issue and yet find merit on the impartiality issue?

Mr. Clark: Yes, Your Honor, you could.

I think the Court of Appeals merged the two issues, Your Honor.

They merged the issues of impartiality and cross-section and said they found that these jurors weren't impartial, therefore a cross-section violation.

But they are two very distinct issues.

Moreover, this Court has made it clear that even if the defendant demonstrates a prima facie case of cross-section violation, a state is entitled to defend its jury selection process by showing it has some significant state interest in that process.

That threshold point is that the state has a significant interest in Arkansas in utilizing the same jury to make the death penalty decisions.

That interest is really not quantifiable, but in fact it is real.

It is real predicated on seven decades of belief both in history and tradition and a judgment in terms of policy, of common sense, that juries in our state represent an ability to be that safeguard, that check, if you will, on that criminal justice establishment, and sitting as a jury that they are best able, sitting as the same jury, having to know that they bear the responsibility of adjudicating guilt as well as punishment, that they are best able to make that awesome decision of life or death.

This Court has recognized that the state has broad discretion in fashioning its own jury selection procedures, and that the state must have some leeway in prescribing the qualifications relevant to jurors and provide a means for reasonably exemptions.

The goal of a fair cross-section is never achieved at the cost of leaving disqualified jurors on a jury.

For all the reasons that I have argued to the court above, I would ask that the decision below be reversed, and I'd like to reserve the remainder of my time for rebuttal.

Chief Justice Burger: Mr. Gross.

ORAL ARGUMENT OF SAMUEL R. GROSS, ESQ., ON BEHALF OF RESPONDENT

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

I'd like to begin by saying a few words about the jury selection in Mr. McCree's case.

The jury I believe was drawn from Ouachita County only, contrary to General Clark's assertion.

At the very beginning of the case, the judge read to the jury the information charging Mr. McCree with capital murder.

With that in mind, the judge questioned the jurors about their ability to be fair and impartial in deciding the facts of the case and in rendering the verdict, and none of them had any difficulty with that.

After that was completed, the jurors were questioned individually and at length about their ability to consider imposing the death penalty on Mr. McCree if a penalty determination became necessary.

And at that point eight jurors were excluded solely because they would not consider imposing the death penalty if a penalty determination became necessary.

They were not questioned any further about their ability to be fair and impartial on guilt or innocence.

They were not challenged on that ground.

Nobody expressed any doubts about their ability to be fair and impartial on guilt or innocence.

That is the jury that Mr. McCree received.

The jury that Mr. McCree is asking for is not any special jury, not any jury for capital cases, not a jury that consists of the type of people he particularly likes, but an ordinary criminal jury, the same jury that tries 99 percent of criminal cases in Arkansas and throughout the country, the jury that he would have received if the prosecutor in his case had charged him with non-capital murder.

And the question here is what difference does it make that he received a death qualified jury instead of an ordinary criminal jury?

Mr. Clark said that we are questioning the policy of the state.

We are not.

We are arguing that the use of this jury, because it is so different from an ordinary criminal jury, violates the Constitution, it violated Mr. McCree's Sixth Amendment right to a fair and impartial jury, it violated his Fourteenth Amendment right to a trial on guilt or innocence under the due process clause.

Unidentified Justice: Mr. Gross, you used the expression "ordinary jury".

I would like to have a little bit better idea of what you mean by that.

I understand from General Clark that ex-felons are excluded from Arkansas juries.

Now, if the same sort of a survey was run among ex-felons in Arkansas as was run about Witherspoon excludibles' attitudes in this case and it were found that ex-felons were more favorable to the defense than the typical citizen, would you think that gave you a constitutional argument that Arkansas had to include ex-felons on the jury?

Mr. Gross: No, Justice Rehnquist.

I think Arkansas and the many states that follow the same policy have adequate justification for excluding ex-felons for a number of reasons, including the fact that these people have been adjudged, have been judged by proof beyond a reasonable doubt to have violated serious state laws and as a deprivation of civil rights, as a punishment imposed on them as a consequence of their violation.

I don't think there's any problem with that exclusion.

Unidentified Justice: Well then, an jury in your view is one that is simply made up of everyone of jury age, and then the state must show some justification for excluding any category?

Mr. Gross: There are other exclusions that are permissible.

The ordinary jury is the jury be would have received in a non-capital murder case, and beyond that the state must establish that the jurors cannot be fair and impartial in determining the questions before them, yes, Your Honor.

Unidentified Justice: What if, instead of... what if you had conducted a similar survey just in Arkansas alone of Witherspoon excludibles and it showed that people from Little Rock were much more inclined to vote for the defense in a capital case than people from Camden.

Would that give you a right to argue that constitutionally you ought to have a jury made up from the entire state, rather than just from Camden?

Mr. Gross: No.

The Constitution provides, the Sixth Amendment provides, for a local jury, a jury from the vicinity in which the crime took place.

Now, the definition of the locality varies.

Unidentified Justice: That was made for federal purposes, really, the Sixth Amendment.

Mr. Gross: That's correct, that's correct.

And the definition could vary and may well.

It may well mean no more than that the jury has to be from the state in which the crime took place.

But I don't believe that there's any constitutional restriction on the state's ability to define the geographical unit within which the trial jury is selected.

Unidentified Justice: Mr. Gross, what if by chance there were no Witherspoon excludibles on the jury panel?

Mr. Gross: Then there would be no constitutional violation.

If none were excluded, there would be no constitutional violation.

Unidentified Justice: But by your terms it wouldn't be a fair cross-section, I suppose, as I understand your argument.

Mr. Gross: The fair cross-section argument, of course, goes to the systematic exclusion of Witherspoon excludibles from the group that is eligible for service.

It wouldn't be a constitutional violation in a particular case in which the issue wasn't presented.

Unidentified Justice: And you would say that it was a fair and impartial jury, even if by chance there were no Witherspoon excludibles on the jury?

Mr. Gross: Yes.

We agree with the state and with many decisions of this Court that a defendant is not entitled to the representation of any particular group on his particular trial jury.

He is entitled to a jury that is selected without any systematic exclusion of groups, and in this case of a distinctive and important group.

Unidentified Justice: What you really are arguing for is a sort of prophylactic rule.

Mr. Gross: It's a prophylactic rule, but one that has actual consequences in quite a few cases, Your Honor.

There will be cases in which the jury would have been just the same.

In the evidence in this case, there is a study of actual voir dire transcripts is Arkansas capital cases, and that shows that the number of Witherspoon excludibles ranged from zero is some cases to 20 in other cases.

In those cases in which it was zero, then there was no prejudice.

In those cases in which there was many, the prejudice may have been quite great.

What we are arguing is against a rule of systematic exclusion in all cases.

The question... I want to address three major points in this argument.

The first I've already mentioned, and that is that McCree is not asking for any special procedure in capital cases, but for the same impartial jury that all non-capital defendants receive.

The second is that there is no serious disputes about the facts in this case.

There is no serious question on the exhaustive record that was presented in the district court and on the findings of the district court, which were affirmed by the circuit court, that death qualification produces juries or guilt and innocence that are less representative, less deliberative, and less impartial than ordinary juries.

Third, that there is no state interest that justifies or requires this extraordinary procedure.

Unidentified Justice: There was no finding, was there, of bias on the part of any single juror?

Mr. Gross: No, Your Honor, no.

Unidentified Justice: So you're relying primarily on the statistical and expert testimony--

Mr. Gross: We're not... that's correct, Your Honor.

We're not suggesting that any juror who served should have been excluded.

We're addressing the point that Justice Stevens raised earlier, that a jury that consists completely of individual jurors, each of whom could be fair and impartial, as a group will not be fair and impartial if it doesn't represent the community, and in particular in this case if it deviates from the sense of the community in a particular direction, in this case to the detriment of the defense.

Unidentified Justice: --Does one state of Arkansas provide under certain circumstances that a person may be sentenced to life without benefit of parole?

Mr. Gross: Yes.

That was the sentence that Mr. McCree received.

Unidentified Justice: Yes, but let's forget capital cases for the moment.

Some states do have provisions with respect to certain crimes that a jury may sentence for life without benefit of parole.

Mr. Gross: I'm not aware of any Arkansas provisions for that sentence except in capital cases.

Unidentified Justice: But assume there are states that have it.

Mr. Gross: Yes, there are, I know that.

Unidentified Justice: I think there are.

Mr. Gross: I believe so.

Unidentified Justice: I think Texas may be one of them.

In such a state, would the same argument you make here with respect to death-prone jurors, as that term is used, apply to jurors who, responding to questions from the court, said they couldn't possibly agree that anyone could be sentenced for life without benefit of parole?

Mr. Gross: I jurors like that were excluded from the determination of guilt or innocence in a state that uses jury sentencing for that purpose, for determining life without parole, Your Honor?

That's a theoretical possibility, but I think no more than that, for two reasons.

First, this is a rare occurrence.

It's rare that this practice exists and few states have jury sentencing outside of capital punishment, and it's rare that people are excluded for opposition to any penalty other than death.

Second, not only is there no evidence that other attitudes about punishment have the distinctiveness and the importance that death penalty attitudes have; the evidence in the record here indicates the opposite.

Unidentified Justice: But would such a jury be a cross-section of the community under your argument?

Mr. Gross: It would be a cross-section of the community unless there were a demonstration that the group that were excluded were important and distinctive enough to have a material bearing on the process of jury deliberations and on jury outcomes.

Unidentified Justice: What do you have to do, have a Gallop poll to determine what percentage of the people in the community would oppose life sentences without benefit of parole?

Mr. Gross: You'd at least have to determine that it is a substantial number.

And beyond that, you'd have to show that these people have something to contribute that might make a difference to jury deliberations or the outcome of jury deliberations.

Unidentified Justice: For example?

Mr. Gross: For example, as the Witherspoon excludibles in this case as have been shown, these people have legitimate and distinctive attitudes on issues such as the meaning of proof beyond a reasonable doubt.

It's also been shown, and I think it's very significant, that juries that include Witherspoon excludibles have a better memory of the facts of the case, that juries that include Witherspoon excludibles are more critical of the testimony of the witnesses on both sides.

And of course, the evidence shows abundantly that juries that include Witherspoon excludibles are less likely to convict the defendant as charged and more likely to acquit or in many cases return a verdict of a lesser included offense.

Now, that sort of showing, I submit, has not only not been made with respect to other groups, but is very unlikely, and the reason I say that is that the evidence in the record does not only have an absence of evidence on other attitudes; there are studies in the record and there is a chapter of a comprehensive study of jury behavior in the record which examined the impact of other characteristics, other attitudes, other demographic characteristics on jury behavior, and found the death penalty attitudes are uniquely predictive, that nothing else has the type of impact on jury behavior and jury deliberations that death penalty attitudes have.

Unidentified Justice: Would you approve of the Florida system, under which the jury may or may not recommend capital punishment, and the judge may make the decision with respect to, the final decision with respect to capital punishment?

Mr. Gross: Personally, I have no particular position on it.

It certainly is constitutional under this Court's decision in Spaziano versus Florida, and it could obviate the problem here, because--

Unidentified Justice: Yes, but the case you're arguing is constitutional under Gregg, and it is the law in the majority of the states.

But coming back to Florida, I think I've read statistical showings that judges are more prone to impose capital punishment in the state of Florida than the juries.

Mr. Gross: --That's correct, Your Honor, and they sometimes override jury recommendations for mercy and impose the death penalty.

In those cases, however, the Florida Supreme Court is particularly meticulous in its proportionality review, and it has reversed a fair... number of those death sentences.

But to get to your--

Unidentified Justice: Doesn't that cut against your basic argument, that so-called death-prone jurors in fact are more willing to impose capital punishment than judges, for example?

Mr. Gross: --No, Your Honor.

Unidentified Justice: You don't think so?

Mr. Gross: No, Your Honor.

Our argument is not that death-prone... that the jurors who now qualify to sit in Arkansas are more likely to sentence to death than those who are excluded.

We concede what Witherspoon excludibles should not sit to determine the issue of penalty.

Our argument is that--

Unidentified Justice: Would you argue that in Florida the people who would not be willing to recommend capital punishment should not be excluded?

Mr. Gross: --Yes.

Unidentified Justice: You would?

Mr. Gross: They should not be excluded from--

Unidentified Justice: Even though the ultimate decision is to be made by a court?

Mr. Gross: --They should not be excluded from the determination of guilt or innocence.

And I want to make a very basic point in response to Your Honor.

Our argument is that this practice biases the determination of guilt or innocence.

The defendant's right to a fair and impartial jury determination of guilt or innocence is more basic and more important than any defendant's right to any particular procedure at the stage of penalty.

A fair and impartial determination of guilt or innocence is an absolute constitutional precondition to the state's right to sentence the defendant to anything... life without parole, death, or a $100 fine.

And the problem here is that by excluding people who would be ineligible to serve at the penalty determination, the state has biased the determination of guilt or innocence--

Unidentified Justice: Mr. Gross, if you're right then I suppose any state which allowed the state to make peremptory strikes of jurors would have violated the Constitution if it tried to strike from the jury people that the state thought would be more likely to render a defense verdict.

Mr. Gross: --No, Your Honor.

Unidentified Justice: Why not, if the state tries to exercise all of its peremptory strikes in such a way as to get a jury that's more likely to convict?

Mr. Gross: Your Honor, that is an even handed aspect of the adversary system.

In the state of Arkansas, the prosecutor does and the prosecutor in this case did exercise peremptory challenges to the best of his ability to try to obtain a jury that would most favor his side, and the defense attorney tried to do the same on the other side.

The problem here... one of the problems, but not the only one, is that in addition to that, before he got to that stage, the prosecutor could systematically exclude all of the people who would not consider imposing the death penalty.

And that's not the only problem.

There's an additional problem because these exclusions were done by law, by the judge, under sanction of state law.

And there's yet another problem--

Unidentified Justice: Well, I suppose the defendant can also at the time of trial selection, in asking that jurors be excused for cause, have the defendant's counterbalancing excuses for cause, can't he?

Mr. Gross: --On the issue of capital punishment?

Yes, the defendant can.

The defendant can exclude people who say that they would not consider any punishment other than death.

As it happens, the evidence here shows unambiguously that such people are exceedingly rare.

The findings of the district court and of the Court of Appeals on this are that the exclusion of those people contributes only to the appearance of justice and not to the actuality of justice.

Unidentified Justice: Would you consider a jury to be non-representative in, let's say, the District of Columbia, where overwhelmingly the people living in the District of Columbia are Government employees?

Now, if the majority of a given jury is not made up of... if a given jury is not made up of a majority of Government employees, then is it representative of the community in your view?

Mr. Gross: If a given jury is not representative of the community, there is no problem, because, as this Court has repeatedly said, the defendant doesn't have a right to a particular jury panel, to twelve jurors who mirror the community.

If the jury panel does not represent the community, then the question becomes is the difference between the jury panel, between the pool from which jurors are selected and the community, the type of difference which gives rise to a constitutional violation.

And that--

Unidentified Justice: Washington, D.C., has more lawyers per square city block or square mile than any city in the world.

Mr. Gross: --Perhaps more judges, too, for that matter.

[Laughter]

Unidentified Justice: Did you ever hear of a lawyer on a Washington jury?

Mr. Gross: I don't know if they ever serve on Washington juries, Your Honor.

But assume they don't.

I have no quarrel with occupational exclusions.

This Court in its decisions in Taylor and in Duren specifically said that states are free to prescribe occupational exclusions, and I think what that--

Unidentified Justice: But there's no occupational exclusion of lawyers.

Mr. Gross: --Oh, then it's a de facto occupational exclusion.

Unidentified Justice: Nor doctors.

Mr. Gross: Some states exclude or, more likely, provide exemptions for doctors and lawyers as a matter of statute, and in some places particular occupational groups for one reason or another don't happen to show up.

They get exemptions for hardship or whatever.

I don't have any problem with that, as this Court didn't in its previous decisions.

And I think the Court's statements on that reflect a judgment that there is no basis for presuming that doctors or lawyers of medical health professionals in general, unlike women, unlike blacks, have a distinctiveness that makes their inclusion in jury panels important.

It is theoretically conceivable that one could demonstrate that they have that sort of distinctiveness, but in fact I believe the evidence, the evidence in this case, shows the opposite.

Unidentified Justice: Mr. Gross, may I ask, if the Court should disagree with the Court of Appeals on the cross-section issue, would you have a different argument to make on the impartiality question?

Mr. Gross: I believe, Your Honor, that the Eighth Circuit's position on the cross-section issue and the Eighth Circuit's findings on which it based its decision on the cross-section issue dictate a holding from this Court on the issue of impartiality as well.

The Eighth Circuit found that--

Unidentified Justice: Is that to say that if we disagree with the Court of Appeals on the cross-section issue, we also disagree with the Court of Appeals on the impartiality issue?

Mr. Gross: --No, indeed.

Unidentified Justice: Well, that's what I'm trying to get at.

Mr. Gross: I'm sorry, I misunderstood your question.

Unidentified Justice: If we should disagree with the Court of Appeals on the cross-section issue, what argument have you on the impartiality issue?

Mr. Gross: The Court on formal grounds could disagree with the Eighth Circuit that this group is not what has been called a distinctive or cognizable group.

Nonetheless, the findings of the district court and the findings of the Eighth Circuit show that the exclusion of this group has an actual biasing effect.

And regardless of the distinctiveness of this group--

Unidentified Justice: That's on the guilt-innocence?

Mr. Gross: --That's correct, but not only on guilt or innocence, also on the predisposition of the jury prior to the initiation of deliberations, which is I submit a constitutional issue in itself, and also on the conduct of deliberations.

Unidentified Justice: Well, Mr. Gross, now, you say it has an actual biasing effect, and we're not talking about cross-section.

You agree that no individual juror was biased?

Mr. Gross: That's correct, Justice Rehnquist.

Unidentified Justice: So you're saying that a jury can be biased even though no individual juror on it is biased?

Mr. Gross: Exactly.

Unidentified Justice: You're really saying the absence of these other people is what really biases the jury.

Mr. Gross: That's right.

This jury is not biased because any individual on it was unqualified.

It's biased because it's skewed.

Let me give you an example.

Unidentified Justice: You think if it hadn't have been for this exclusion conviction would have been less likely?

Mr. Gross: The conviction may have been less likely.

I think the most likely effect is that the finding that the murder in this case occurred in the course of a robbery wouldn't have been returned.

The evidence of the existence of a robbery in Mr. McCree's case was entirely circumstantial.

If a jury had not believed that the state had proven the existence of a robbery beyond a reasonable doubt, then Mr. McCree could not have been sentenced to life without parole or to the death penalty.

And a different jury could reasonably have reached a different conclusion on that issue, or on other issues.

Let me say something about the effect here and how it indicates fairness.

There are many studies in the record here, but the effect here is not simply one that is known through studies.

It is well known in the legal community.

Let me give you an example, if I may.

In a brief amicus curiae submitted by the Dean of the University of Missouri at Kansas Law School and by a Jackson City prosecutor, they cite a section of a manual prepared by the Missouri Attorney General's office which says:

"In the hands of a prepared state's attorney, the death penalty jury selection process, as in no other type of criminal case, holds the ultimate weapon, the edge for maximum success. "

"The voir dire in death cases gives you, the prosecutor, certain unique opportunities to apply effective tactics which are unavailable in other criminal cases. "

And this is not the only time prosecutors have admitted that they are aware of this.

I don't think there's any secret about the effect that we have here.

The effect is that the prosecution, by asking for the death penalty, can increase its chances of getting a conviction beyond what they would have been in the same case if the prosecution had not asked that the defendant be executed.

And we submit that that's unconstitutional.

Unidentified Justice: Do you think you have destroyed the impartiality of a jury if the prosecutor is permitted one way or another to exclude people whose members of the family have been convicted of felonies?

Mr. Gross: People whose members of family have been convicted?

That's possible.

Again, that would depend.

That strikes me as an overbroad exclusion if the purpose is the same purpose for which states exclude felons themselves.

I'm not aware of any state that permits anything of this sort.

Unidentified Justice: What use is made of the peremptory challenge if they can't challenge for cause in those cases?

Do you think a juror... or the defense, for example... do you think defense counsel wants people on the jury whose members of families are working in the prosecutor's office, for example?

Mr. Gross: No, indeed.

But as this Court held in--

Unidentified Justice: Or who have ever been prosecutors?

Mr. Gross: --I actually know of cases in which defense attorneys have permitted that, but typically not.

But that enough, as this Court has held in Smith versus Phillips, is not enough to impute bias to a juror.

A showing of actual bias has to be made or peremptories can be exercised.

But peremptories are balanced, and this is an unbalancing process.

Unidentified Justice: Did I misunderstand your brief to argue that at the voir dire a prosecutor should not inquire of the guilt-innocence, potential guilt-innocence juror, anything about his attitudes towards the death penalty?

Mr. Gross: That would avoid all of the problems that we've identified.

Unidentified Justice: You mean that it would be unconstitutional, do you think, if the prosecutor said, would you be willing to impose the death penalty, and he said, no, in no circumstances; well, you, despite your attitude toward the death penalty, would you believe that would effect your deliberations on guilt or innocence?

Can't he ask that?

Mr. Gross: I see what you're saying.

That might create a small portion of the problem that we have here, because one of the problems we have here is--

Unidentified Justice: You don't suggest that there are no people who are against the death penalty who would also not vote for guilt?

Mr. Gross: --No, there certainly are.

Unidentified Justice: Well, how does a prosecutor identify them without asking them?

Mr. Gross: Well, there are a couple of possible procedures.

There are several.

But the one that was used in this case was a general voir dire by the judge, asking all the jurors, knowing that it was a capital case, if they would be fair and impartial on guilt or innocence.

The state--

Unidentified Justice: You don't object to that?

Mr. Gross: --Not at all.

The state could permit prosecutors to go beyond that and engage in more extended inquiry on that issue, on the issue of nullification or guilt or innocence.

Increasingly, I believe state courts have tended to limit that type of voir dire, but I don't see any constitutional obstacle to it.

Unidentified Justice: Suppose that the challenge for cause were eliminated just because of the opposition to the death penalty.

Couldn't a prosecutor at least on voir dire identify those people who are opposed to the death penalty, so that he might exercise his peremptories against them?

Mr. Gross: A state could permit that.

It's not required constitutionally.

Unidentified Justice: Well, I know, but it wouldn't be barred constitutionally?

Mr. Gross: No, I don't believe it would, Your Honor.

I think one of the problems we've identified... and I think Your Honor has that in mind... is that the process of asking questions about willingness to consider imposing the death penalty before a determination of guilt is in itself biasing.

That could be minimized.

But even if it were left as it is... and I don't think it would under any ruling upholding the Eighth Circuit... that process alone may not give rise to a constitutional violation.

That process, together with all of the other problems we have here, I think certainly does.

I'd like to say that, as the Court knows, this issue is not entirely new.

When the Court first addressed it in 1968 in the Witherspoon case, I think most lawyers and most judges believed that death qualification violates... or rather, creates biased Juries on guilt.

But the Court decided not to act on that belief, to defer a decision.

And that was appropriate then, because it was not proven.

Now matters have changed.

It has been proven.

The evidence of it is overwhelming, it's uncontroversial, and it's well known.

And at this point, now that we know that death qualified juries are biased on guilt or innocence, to permit the practice to continue would be a very different matter and it would, I submit, be unconstitutional.

Unidentified Justice: Do you have a... do you take any position that if you win, whether the ruling would be retroactive?

Mr. Gross: I have no position on that as an advocate for Mr. McCree.

But obviously it's of concern to the Court.

The best I can say on that for the Court's information is, a brief was filed on this on behalf of Mr. Woodard which suggests a number of ways in which retroactivity could be limited, and I think it could.

Contrary to what General Clark said, I think only a small minority of the people who are on death row now would have relief available to them under this Court's ruling in Wainwright v. Sykes.

I should point out, as the Court very likely knows, that Judge Eisele, the district court judge in this case, already dismissed one petition on this issue because the issue was not preserved in the state courts, and the Eighth Circuit has done that in two other cases.

Judge Eisele also suggested that the doctrine of Wainwright v. Sykes might prohibit applying this type of relief to defendants who raised the issue but did not present any evidence on it, since it had been identified as a factual issue.

So I suspect the number of people to whom it would apply under existing Court doctrine would be quite small, and it could be limited beyond that, and it could be made non-retroactive entirely.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Attorney General?

REBUTTAL ARGUMENT OF JOHN STEVE CLARK, ESQ., ON BEHALF OF PETITIONER

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

I will be very brief.

It's important to note for this Court that the state has not moved to exclude Witherspoon excludibles because of their attitude as to the death penalty, but instead because they will not follow state law.

The Sixth Amendment says that you're entitled to an impartial jury, that is one that will fairly weigh the evidence presented, the arguments of counsel, consider the instructions of the Court, and apply that law to the facts and the case.

Unidentified Justice: But General Clark, is it not correct that the state agrees that there is a substantial percentage of Witherspoon excludibles who could follow state law on the issue of guilt or innocence?

Mr. Clark: Your Honor, we would consent that if a juror says, who is a Witherspoon excludible, I can follow state law, that you can't strike them for cause on that reason.

We've never argued that point.

If that juror says I will follow state law, fine.

We may strike him peremptorily, but for cause we don't have that issue.

But McCree argues to this Court that in fact--

Unidentified Justice: Well, yes, but what if he says, I will follow state law except with respect to capital punishment?

Mr. Clark: --Then he must be excused for cause because--

Unidentified Justice: Well, but he says, I can decide guilt or innocence very fairly and not be affected at all by my views about the death penalty.

Mr. Clark: --The policy, Your Honor, of our state is for the same jury to hear guilt and innocence as well as penalty, and that policy I submit to you is one that is founded in good constitutional principle.

Secondly, I would argue to this Court that, though the contention may be made that McCree's attack... really, the contention should be made that McCree's attack is on the procedure.

McCree's attack is that we just don't like this system, not that it's unconstitutional, we think there's a better way.

In looking at that attack and particularly in viewing it with the issue of whether these death qualified Juries are distinct as compared to all other ordinary criminal juries, that is factually inaccurate.

In Arkansas, when we qualify a jury in a criminal case we repeatedly... whether it's a drug case, it's a robbery case, it's a theft case, it's a rape case, or it's a death case, we want to know if those jurors can consider the full range of punishment.

If they cannot, then we submit that they must be excused for cause.

Unidentified Justice: But you agree, I take it, that the jurors we're talking about here, the 17 percent or whatever the figure is, would all be qualified to sit in all of those cases if they were not capital cases?

Mr. Clark: They would be qualified in those cases if they stated to the court, Your Honor, they would consider the full range of punishments.

Unidentified Justice: But they also state to the court in these cases, the death cases, that they can pass on guilt or innocence without any disability, and you agree with that as I understand it.

Mr. Clark: Some may state that, yes, Your Honor.

In fact, some have, that they could do guilt or innocence, but not penalty.

Unidentified Justice: Well, does it boil down to the balancing between the state's interest in the unitary system in capital cases as opposed to this proven, as I understand the record, conviction proneness of this particular jury?

Is that what we're balancing?

Mr. Clark: You are balancing state interests, Your Honor.

I think that is correct.

And if in fact there is a conviction proneness, there may be an acquittal proneness.

What the issue is in the Sixth Amendment is, do you get a jury who will follow state law?

If they submit to you that they will, then in fact our unitary system is constitutional.

Unidentified Justice: Of course, under the Eighth Circuit holding you could have the best of both possible worlds, because it follows state law or guilt or innocence, and then you just have to have a few extra alternates on.

You have to give up your state policy as to a few of the jurors in a small segment of the cases.

Mr. Clark: I would submit to this Court that that is not the best of all worlds, at least by the policy determination in Arkansas, that to set those alternates on the jury, which we set, too, but not in the deliberation phase, in case of illness or emergency, but to divide that responsibility, to diminish that responsibility, is not good policy, and that we have determined it not to be good policy.

And the remedy fashioned is really a policy consideration, not a constitutional violation.

In addition, I make one other point to the Court--

Unidentified Justice: Well, may I also ask, is the state interest a matter of policy or is there any constitutional right to this?

Is there any constitutional guarantee that you can't protect yourself by adequate peremptories or use of alternates, for example?

It seems to me you're saying you have a policy at stake.

Mr. Clark: --Yes, sir, I do.

Unidentified Justice: They're saying they have a constitutional interest in an impartial jury, and that they're not getting an impartial jury.

Are they weighing a constitutional claim against your policy interest, that's what I'm trying to--

Mr. Clark: Your Honor, I submit that when they argue that they have a constitutional claim, their constitutional claim that's described by the Constitution is to an impartial jury.

Unidentified Justice: --Right.

Mr. Clark: In this instance, by the process that we follow we only exclude those jurors who say they cannot follow state law.

Had one of McCree's jurors, one of the nine excluded, said, I can follow state law, we could not have excused him for cause.

The record doesn't show they said that, Your Honor.

Unidentified Justice: Yes, but you're recusing them from the portion of the proceeding in which they admittedly can follow state law, because they cannot follow state law in a later proceeding in which they admit they should be excluded.

Mr. Clark: We are excusing them for that reason, Your Honor, and we do that because we think that jury deliberation is the better policy, rather than judge sentencing.

Unidentified Justice: General, in this case did the Government use up all its peremptories?

Mr. Clark: Your Honor, I'm not aware of whether we did or not.

I believe we did.

There are ten for the Government in a capital case and twelve for the defendant, and I believe that we did.

Unidentified Justice: You believe they did use them up?

Mr. Clark: She tells me we did not.

I'm sorry, Your Honor.

Unidentified Justice: You did not?

Mr. Clark: We did not.

One other point I would like--

Unidentified Justice: Was the voir dire conducted individually?

Mr. Clark: --Yes, Your Honor.

First the court inquired, and the record I think indicates that six jurors immediately identified, because of their belief on the death penalty, they could not follow state law and were excused.

The three others that were excused were identified because they could not follow state law and because at least two of those three had some relationship or familiarity with the defendant, which caused the state to be concerned about their objectivity.

Unidentified Justice: So they excused six out of the entire panel?

Mr. Clark: Nine total, Your Honor, six immediately by the judge.

Unidentified Justice: Yes.

But the three, the other three, were because of individual questioning?

Mr. Clark: Yes, Your Honor.

The other point I would like to make to this Court--

Unidentified Justice: I suppose if you had a rule that you cannot throw off Witherspoon excludibles, you cannot exclude them from the guilt or innocence phase, you would just... you would find out if they ware opposed to the death penalty, but then seat them.

And then you could, when you had filled up the... got your twelve jurors, you would add some alternates.

Mr. Clark: --Your Honor, I think that procedure perhaps could be advanced.

Unidentified Justice: I guess we just wouldn't know how many alternates you would have had to have on that basis in this case.

Mr. Clark: We would not have known, Your Honor, that's correct.

Unidentified Justice: We don't know now.

Mr. Clark: No, that's right.

The other point I would make to this Court is that there's a division in the legal community among prosecutors as to whether death qualifying a jury makes them conviction prone.

There is evidence in the record from prosecutors in Arkansas that disagree with others as to the effect that qualifying a jury has in terms of their indication of adjudication of a verdict of guilt and innocence.

And finally, that if the state is not allowed to voir dire on the issue of death, as the question asked, then we are facing a jury that cannot be impartial to the state because of the potential of nullifiers, those very persons who, because of their opinion of the penalty of death, would vote for an adjudication of innocence rather than guilt, even though the state met its burden.

For all those reasons, I would ask that the decision below be reversed.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

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Louie L. Wainwright, Secretary, Florida, Dept of Corrections v. Johnny Paul Witt - Oral Argument

Fri, 31 Aug 2012 18:29:11 +0000

Case:

Louie L. Wainwright, Secretary, Florida, Dept of Corrections v. Johnny Paul Witt

Media File:

83-1427_19841002-argument

Related Transcript:

83-1427_19841002-argument

Transcript:

ORAL ARGUMENT OF ROBERT J. LANDRY, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: Mr. Landry, I think you may proceed whenever you're ready.

Robert J. Landry: Mr. Chief Justice, and may it please the Court, the instant case presents the opportunity for this Court to address and decide for the first time the standard of review which should be made by Federal habeas corpus concerning Witherspoon claims brought by state prisoners in habeas corpus actions.

The decision of the lower court, we believe, is erroneous and must be reversed because it is not mandated by, in our belief, to be consistent with prior Supreme Court decisions.

It fails to accord the appropriate deference to state court determinations of fact, as required by 2254 D.

It fails to accord the respect to the federal district court fact-finding obligations of district judges under rule 52, and announces a mechanistic policy which is more conducive to adherence to form rather than substance.

We would ask the Court to provide much-needed clarification to the lower courts in this regard by reiterating that the position of Witherspoon and his progeny is that a prospective juror may be excused for cause when his capital punishment views are such that he is unable or unwilling to follow along in the court's instruction; that there is no necessary formula to be employed either by the questioner or by the answer given by the prospective juror; that a juror is required to assure the trial judge that he can follow the law or else he will be excused for cause based on his views; and that because of the unique advantage occupied by the trial judge in making the determinations as to what the jury is saying and means, that wide latitude should be given his determinations.

Very briefly, the facts in this case which brought this to a head, Johnny Paul Witt was tried and convicted of the first degree murder of Jonathan Kushner and received a sentence of death.

During the voir dire examination of one of the jurors, Juror Colby, the prosecutor inquired as to whether or not the juror had any particular personal beliefs against capital punishment.

The juror responded that she had some personal views and the prosecutor followed that up with a series of questions:

First: Would that interfere with you sitting as a juror in this case?

I'm afraid it would.

Unidentified Justice: You are afraid it would?

Robert J. Landry: Yes, sir.

Unidentified Justice: Would it interfere with your judging the guilt or innocence of the defendant in this case?

Robert J. Landry: I think so.

Unidentified Justice: You think it would?

Robert J. Landry: I think it would.

At this point the prosecutor moved to excuse the juror for cause.

The defendant neither objected to the removal nor asked to give any additional clarifying or rehabilitative questions of the juror, and the trial court granted the prosecutor's motion to step down.

We believe that the appropriate test for habeas corpus in reviewing collateral attacks, Witherspoon claims, is the presumption of correctness outlined in 2254 D of section Title 28.

The policy reasons for this include the traditional values of comedy and federalism which have been enunciated in previous proceedings in this Court.

Going back to Stone v. Powell, this Court has announced that state judges are fully capable of applying constitutional standards, and they take the same oath to uphold the Constitution as do the federal judges.

It would emphasize the importance of the trial as a main event in a scheme of the criminal justice system and not just a preliminary round or a trial run for a never-ending cycle of appeals and post-conviction motions.

It would develop the concept of finality for litigation.

Instead of having successive repetitive review to achieve some never-ending idea that a better result will be achieved, the courts will recognize that successive review merely affords an opportunity for different results.

And, finally, it would be consistent with the prior decisions of this Court which have most recently recognized the importance that should be given to trial judges in making their determinations on matters of fact which they are better equipped to resolve.

Most of these values which I've just enunciated, of course, are most adequately and demonstrated most forcefully in this Court in the recent opinion of Patton v. Young which was decided two or three months ago.

In that case the Court was called upon to decide whether or not the trial judge's determination or a federal court's determination as to whether a juror was biased because of pretrial prejudicial publicity, and there had been a disagreement among the state court and the federal courts about that.

And this Court ruled that because of the greater opportunity of a trial judge to observe the demeanor and credibility of a juror in responding to leading questions, listening to the tone of the responses given, that greater deference should be given to the trial judge's determination.

Unidentified Justice: Exactly what findings of fact did the trial judge make here?

Robert J. Landry: In the instant case the trial judge implicitly found that--

Unidentified Justice: He didn't... you say implicitly found?

Robert J. Landry: --Yes, sir.

We submit that the requirements of 2254 have been complied with here because we have an adequate written indicia in the record.

We have the prosecutor asking questions which are consistent with the requirements of Witherspoon.

Unidentified Justice: Well, doesn't 24 D, evidence by a written finding, written opinion, or other reliable and adequate written indica?

Robert J. Landry: Other reliable adequate written indicia, we submit, is the transcript of the trial, including the questions and answers, the questions propounded by the prosecutor, the answers given, the opportunity for the defense counsel to object and ask further clarifying questions, and the trial judge's statement, his ruling at that point, we submit, is an adequate written indicia.

It's more or less similar to the situation, we think, in Novelli v. Dellarose in which the trial judge was called upon to make a determination as to the voluntariness of the confession.

Now, he did not... the trial judge did not articulate his credibility finding that he believed Witness A rather than Witness B, but it was clear, based on a totality of reading of the record that the trial judge had indeed made the findings that--

Unidentified Justice: Well, the only totality is what you read us, I gather.

That's only the interrogation or the colloquy between the witness and the prosecutor, wasn't it?

There's nothing else in the record, is there?

Robert J. Landry: --In front of the trial court; that's correct.

Unidentified Justice: And you're asking us to give deference under 2254 D to some finding.

I don't quite understand what finding it is you're asking us to give deference to.

Robert J. Landry: Well, the statement by the trial judge that the witness was excused pursuant to the prosecutor's motion.

Unidentified Justice: All he said was, "All right, step down".

Robert J. Landry: Yes, sir.

Unidentified Justice: Well, does your reading of the statute, then, really make the words

"evidence by a written finding, a written opinion. "

superfluous, because there's always a transcript, I suppose.

You say a transcript is all the statute contemplates.

Robert J. Landry: I don't think that is superfluous, no.

But I think where we have an indication in the record here that the trial judge correctly understood the appropriate legal standard, then his conclusions, factual conclusions that he utilized to formulate the decision that he did, must be given respect.

Unidentified Justice: Is it possible that the trial judge hearing this examination of the potential juror respond at least four times, saying, "I'm afraid, it would",

"Yes, I am afraid it would. "

"I think so", and "I think it would", felt that that was so clear that no findings were necessary?

Robert J. Landry: That's indeed correct, that it was unnecessary really for the trial judge, Judge Ryder, to further explicate the basis for his ruling by the fact that defense counsel did not object, and it was apparently clear to everyone in the courtroom that the juror's attitude was such that she could not impartially decide guilt or innocence.

Unidentified Justice: But may I ask, I gather the Witherspoon formulation is that you can remove for cause only those who make it... and I'm quoting from Witherspoon...

"unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed in the trial in the case before them. "

Now, what is it in that colloquy that you say satisfies that you say satisfies that standard?

Robert J. Landry: I say that the four responses to the questions propounded by the prosecutor, indicating that her attitude had reached a plateau of interfering with the ability to decide guilt or innocence, adequately complies with Witherspoon.

Unidentified Justice: I don't see any reference to guilt or innocence.

What it is is whether that would interfere with you sitting as a juror.

Isn't one of the questions, would it interfere with the judgment of the guilt or innocence of the defendant in this case?

And the answer was, "I think so".

Robert J. Landry: Yes, sir.

Unidentified Justice: Mr. Landry, let me read you a more recent formulation of the Witherspoon past remark the case of Adams v. Texas.

Where the court said this line of cases has established that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.

I take it your submission is that the trial judge's ruling at the close of the colloquy certainly satisfied that standard.

Robert J. Landry: Yes, sir.

Yes, sir.

To the extent that the lower court believed that there had to be a total conformity to the language of Footnote 21 in Witherspoon, he was mistaken.

The restatement in Adams certainly indicates that if a juror's views are such that would prevent or substantially impair his performance, he may be excused for cause.

And, of course, the juror's response in this case did meet that criteria.

The error, we believe, of the Eleventh Circuit is an emphasis on requiring that there be an exact compliance with Footnote 21 terminology.

Now, the Eleventh Circuit apparently has held that "interfere with", used by the prosecutor or by trial judge, is an impermissibly ambiguous statement.

We do not understand it to be so, and it is really quite unclear as to when that phrase became ambiguous.

For example, at Footnote 5 of Witherspoon, this Court appears to have implied that the phrase,

"interfere with the ability to determine guilt in accordance with the law and evidence. "

was interchangeable and synonymous with the phrase used in the text,

"prevent from making an impartial decision as to guilt. "

Now, if the Court in writing the Witherspoon opinion in Footnote 5 apparently thought or at least implied that the two phrases might be interchangeable, certainly the prosecutor and the trial judge cannot be criticized for similarly regarding the two phrases as the equivalent of each other.

In any event, it is clear from the record that there was no complaint by Mr. Witt attacking the alleged ambiguity of the question until some eight years after his trial and some two changes in lawyers after he had gone through his direct appeal, attacking only the response given by the juror, and similarly attacking that response in the Federal District Court, Judge Carr.

So, consequently, we submit that the lower court has erred in requiring a strict verbatim compliance with the requirements of Footnote 21, and that contention that the Eleventh Circuit's ruling is inconsistent with the subsequently decided case of this Court.

In Lockett v. Ohio, for example, this Court did not require a strict reading of Footnote 21.

There, the jurors were asked whether or not they could take an oath to well and truly try the case, despite their views on capital punishment.

And negative answers to that question led to their excusal.

So we submit that it is not really the form of the question or the answer that is significant, but simply the total context of what the response given is as to whether a juror is able and willing to conform with the law or not.

We think the Eleventh Circuit has erred in its determinations, and that this case is exactly the same as Adams v. Texas.

We submit that this case is clearly distinguishable from Adams.

Adams was a case involving the requirement under Texas law that someone take an oath that he would not be affected at all in his determinations of any question of fact based on his views of capital punishment.

He was not asked or gave no... it did not matter whether or not he could follow the law; it did not matter that he could set aside whatever his views were.

If they had any kind of effect at all on his fact-finding deliberations by his capital punishment views, he was excused and apparently could not even be rehabilitated.

So the State of Florida does not ask or require anyone not to be affected by capital punishment.

We simply insist that a juror be willing to assure the trial judge that he can follow the law and follow the instruction of the court and follow the law on the evidence.

If he is not willing to give that assurance, then we submit that he is properly excused for cause under Lockett v. Adams.

We ask this Court to--

Unidentified Justice: Well, if a juror were to say the juror was opposed to capital punishment but nevertheless could decide the case based on the evidence and the instructions, would that give rise to any excuse for cause on the part of the State?

Robert J. Landry: --No, ma'am.

If the juror can follow the law and according to the instructions given and the evidence adduced at court, then he should not be excused.

And Florida does not insist that he should be.

I would like to reserve the remaining time for my rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. McLain.

ORAL ARGUMENT OF WILLIAM C. MCLAIN, ESQ. ON BEHALF OF RESPONDENT

Robert J. Landry: Mr. Chief Justice, may it please the Court, initially I'd like to present two additional facts for the Court's attention.

First, Mr. Witt did argue in the district court, contrary to the State's assertion, that the prosecutor's questions were ambiguous and improper under the Witherspoon standard.

I'd like to give four references to the district court record.

Document No. 3 in the record, Memorandum for Application of Stay at page 25; Document No. 7 of the record, Supplemental Memorandum for Application of Stay at pages 8 and 10--

Unidentified Justice: Did he ever argue that in the Florida trial court?

William C. Mclain: It was not focused on in the Florida trial court, and I would point out... the second fact I would like to bring to the Court's attention was that Mr. Witt's trial counsel in the state trial court and on appeal admitted, in a deposition which was introduced into evidence at the habeas hearing, that he was not even aware of the Witherspoon decision as the time he selected the jury in this case.

Unidentified Justice: Well, how does that bear on his failure to raise it in the trial court?

William C. Mclain: His failure to raise it in the trial court... the Florida Supreme Court addressed this question on the merits.

Unidentified Justice: Yes.

I realize that there is a proper basis for finding that there has been no Wainwright v. Sykes bar.

But when you're insisting, from the point of view of a defense lawyer in a criminal case, that a question on voir dire by the prosecutor is not as precise as it should be or doesn't use the right words, don't you have some obligation if you're going to make that point later, to try to focus on the question and ask some questions yourself?

This defense counsel just stood mute.

William C. Mclain: That's correct, Your Honor, and I think his statement in the deposition explains why: that he was unfamiliar with the Witherspoon standard at the time he selected the jury.

Unidentified Justice: Does that bear on his obligation, if the point is later to be made, eight years later in the case, that a particular question on voir dire wasn't proper, that he ought to do something about it then?

William C. Mclain: Yes, Your Honor.

I'm just saying as an explanation of perhaps why he didn't do anything and why it can't be indicative of a demeanor finding in the trial court on his part for failing to object.

We can't say that he perceived it as being unmistakably clear, because he was not aware of the Witherspoon standard at that time.

Unidentified Justice: No, but it's the judge who has to... and I think the Adams language doesn't really use the words "unmistakably clear".

It says,

"based on his views about capital punishment, unless those views would prevent or substantially impair the performance of his duties as a juror. "

That's really a more recent formulation and it's in the text rather than the footnote.

William C. Mclain: I think Adams v. Texas really controls this decision because the term "interfere" as used in his questions in this case suffers the same flaw as did the term "affect" in the questions used in the Texas case.

Unidentified Justice: Do you think if the court or the district court had made findings, that could have remedied this problem?

Or the absence of findings, is the absence of findings irrelevant?

William C. Mclain: The absence... I don't think the Witherspoon question, whether Witherspoon questions are treated as ones involving historical fact, accorded the presumption of correctness under 2254 D, is really relevant to deciding this case at all, because even under the terms of 2254 D, the pertinent fact for dispute was not decided.

We have no findings of fact in this case, either explicit findings or implicit findings.

Consequently, the issue, the applicability of 2254 D, is not presented in this case.

Unidentified Justice: If the district judge, the trial judge had thought that some findings were either necessary or helpful, do you suppose he might have been dissuaded from making them by the fact that there was no objection to the excusing of this juror?

William C. Mclain: That may have been the case, Your Honor.

I can only speculate.

Unidentified Justice: Well, what's your answer to your adversary's argument that if challenge for cause was sustained, that that action in and of itself carries with it findings?

William C. Mclain: I don't think this record is capable of demonstrating an implicit finding of fact.

First, because there is no indication that the trial court used the correct legal standard in excusing Juror Colby for cause.

We cannot infer a finding of fact where there is no clear legal standard employed.

We don't know whether the trial judge was operating under the correct Witherspoon standard, for a number of reasons: first, one was not articulated at the time Juror Colby was excused.

Furthermore, we cannot presume that the trial court was using the correct legal standard because of the state of Florida law at the time.

In Florida, 1969 decision, Williams v. State, the Florida court adopted an erroneous interpretation of the Witherspoon standard from the New Jersey case, State v. Mathis, which would allow the excusal of jurors for cause precisely because their responses to the inquiry were equivocal.

The Florida court adopted that rule in Williams, and I would note that the State, on direct appeal to the Florida Supreme Court, argued both Williams and Mathis to that court.

Also note that subsequent to Mr. Witt's trial and appeal, the Florida court is perhaps still laboring under this erroneous rule.

As recently as 1980 in Brown v. State, the rule was again quoted and articulated in the Florida Supreme Court decision.

The court ruled in this case solely upon prosecutor's inquiry, solely upon the ambiguous questions, which did not employ the correct legal standard under Adams.

Unidentified Justice: Well, does that imply that the judge didn't know the right standard?

William C. Mclain: It implies the judge did not, by acting upon the prosecutor's inquiry alone which did not comply with the Witherspoon standard.

Unidentified Justice: The answers to a question might give the judge what he thought anyway was enough evidence to apply the correct standard.

William C. Mclain: I don't... it would not in this case because of the nature of the questions.

The term "interfere"... and I think we have to focus on how the jurors, a reasonable juror might have interpreted the word "interfere".

And that may be quite a bit different than the way it's treated by commentators or members of this Court in writing opinions.

But the "interfere" term is not as clear as the term "prevent".

And it is subject to varying interpretations.

And therein lies the difficulty in gleaning a finding of fact in this record.

Even if we had an unequivocal yes answer from Juror Colby to a question that merely asked if her beliefs would interfere, we still don't know the profundity of that interference or the degree of that interference.

Justice Sandra Day O'connor: There is language, though, as was pointed out by Mr. Landry, in Witherspoon itself, using the word "interfere", where the Court said courts and other states have sometimes permitted the exclusion for cause of jurors opposed to the death penalty, even in an absence of a showing that their scruples would have interfered with their ability to determine guilt and so forth.

There is discussion using the word "interfered".

William C. Mclain: Yes, Your Honor.

Again I say the term has to be evaluated in the manner in which it might reasonably be construed by a juror.

And it is subject to differing interpretations.

Some of those interpretations--

Unidentified Justice: Did the court below give any deference, or did it treat this as a mixed question of law and fact?

William C. Mclain: --Your Honor, the court below noted that there was some uncertainty in the lower courts.

Footnote 10 of the opinion--

Unidentified Justice: So what standard did it apply?

William C. Mclain: --The court conducted an independent review of the record.

Unidentified Justice: Well, now let's assume we decide that's wrong; that it's really entitled to a presumption of correctness because it's historical fact, like bias.

And suppose--

William C. Mclain: I don't--

Unidentified Justice: --We don't need to argue whether that's right or wrong.

Suppose we decide that they applied the wrong standard to this case?

Shouldn't we remand it and have them review it under the correct standard?

William C. Mclain: --Well, in Footnote 10 of their opinion, they noted the uncertainty regarding the standard to be employed in reviewing findings of fact in the Witherspoon context.

However, they went on to say that even under the least rigorous standard, the 2254 D standard, that they would have reached the same results, and for the reasons that there were no findings made by the trial court which warranted deference.

Unidentified Justice: Did you try this case, Mr. McLain?

Were you trial counsel?

William C. Mclain: I was not trial counsel in the state court.

I was co-counsel in the district court, and I was counsel in the court of appeals.

Unidentified Justice: Well, when defense counsel are so anxious to have a person on the jury who expresses reservations such as are made here in at least four responses, does that tell us anything about whether defense counsel wants people with these reservations on juries?

William C. Mclain: I'm sorry, Your Honor?

Unidentified Justice: Is that a totally unbiased juror?

That's the question.

A juror who says it would interfere with judging the guilt or innocence.

William C. Mclain: The Witherspoon standard requires the state to make an affirmative showing that the juror is, in fact, impartial.

When there is an ambiguous showing of whether the juror is impartial, then Witherspoon does not permit the exclusion of that juror.

If the juror were unable to answer--

Unidentified Justice: Your position here is that the response that it would interfere with judging the guilt or innocence of the defendant shows no bias?

William C. Mclain: --It perhaps shows an uncertainty regarding the position of the juror, but it does not make unmistakably clear that the juror would be prevented from--

Unidentified Justice: Well, you really have to read Witherspoon in light of Adams, too, don't you?

William C. Mclain: --Yes, Your Honor.

I think again, we go right back to the possible interpretations of the term "interfere", and the possible interpretations the jurors could reasonably impose upon that term.

Unidentified Justice: Of course, the trial judge has the benefit that no reviewing court can have of the demeanor evidence of the witness.

What seems to perhaps suggest ambiguity on the record may, in the view of the trial judge, in view of facial expressions or tone of voice, convey quite a different mode.

William C. Mclain: That's correct, Your Honor, and we are not contending that there should be absolutely no deference paid to any pertinent demeanor findings made by a trial court, even--

Unidentified Justice: Well, are you saying that if a trial court... supposing a challenge is underway for bias, not on the Witherspoon ground, but just on the grounds that the witness is biased against the plaintiff.

And the defense lawyer conducts... or is biased against the defendant.

The prosecutor conducts voir dire.

The defendant conducts voir dire.

And the trial judge then says the witness is excused for cause.

Are you suggesting that to comply with 2254 D, the trial judge would have to go further and say the reason I am excusing this juror for cause is that I disbelieve some of her statements, and also she turned red when she was asked question 3?

William C. Mclain: --I think certainly 24... perhaps not required for application of 2254 D, in that there could be an implicit finding of fact in that case, provided the correct legal standard was employed.

However, when we're dealing with a situation of excusing jurors because of some personal bias, we're really dealing with a different standard than we're dealing with in the Witherspoon context.

In the Witherspoon context, we're talking about a much higher standard and an affirmative showing on the part of the State regarding the juror's beliefs and the impact of those beliefs on the ability to judge the case impartially.

In excusing a juror because of some personal bias, it's really a negative showing there as opposed to an affirmative showing.

And, furthermore, the Witherspoon standard is... part of the constitutional standard established in Witherspoon is a higher standard for excusal for cause because it's excusing a class of jurors based upon their beliefs, as opposed to an individual juror based upon some personal bias.

I would note that I think the Eleventh Circuit Court of Appeals has, in a later case, after this decision... the Darden case... articulated what is perhaps the correct standard of review in the Witherspoon questions.

An independent review of the record to ensure that the correct Witherspoon standard has been faithfully met and satisfied but, at the same time, recognizing that, where appropriate, some deference should be given to trial court findings.

This strikes a balance between the Witherspoon standard and the need to ensure that that legal standard is appropriately complied with and with the need to give appropriate deference to demeanor findings by the state trial court.

Justice Sandra Day O'connor: Mr. McLain, is the underlying purpose of the holding in Witherspoon simply to prevent the State from excusing for cause jurors who are opposed to capital punishment?

That that enough isn't sufficient to find an excuse for cause.

But is there anything in Witherspoon that says if a juror is found to be biased on the question of finding guilt or innocence, either way, that that juror should not be excused?

In other words, if a juror, a trial prospective juror, is determined to be biased on the question of finding guilt or innocence, the juror is unable to follow the court's instructions or unable to decide the case based on the evidence, is there anything in Witherspoon that prevents excusing such a juror for cause, in your view?

William C. Mclain: That juror could be excused if that bias was a product of opposition to the death penalty; that under no circumstances--

Justice Sandra Day O'connor: Well, for whatever reason, including opposition to the death penalty.

William C. Mclain: --I don't recall Witherspoon addressing that precise question.

Justice Sandra Day O'connor: Well, isn't that what we have here really?

William C. Mclain: No, Your Honor, I don't think that's what we have here, because the nature of the inquiry was focusing directly upon this juror's opposition to the death penalty.

And when that focus takes shape, then the Witherspoon standard must be applied.

I would note that the standard of review articulated by the Eleventh Circuit in the Darden case, while not giving the presumption of correctness to the findings of fact, still does strike the appropriate balance to be made between independent review of the record to ensure the Witherspoon standard is appropriately applied, and still giving respect due to state court findings.

Unidentified Justice: Suppose a juror says,

"Well, I am not inalterably opposed to the death penalty. "

"I don't believe in it; I would never vote for it if I were a legislator, and I couldn't say that I never would vote to impose the death penalty, but I'll tell you right now, it's very likely to influence the way I decide guilt or innocence. "

"I mean, I'm opposed enough to it that it would warp my judgment, I think. "

"Just inevitably, it would. "

Now, could that juror be excused, even though his responses to the death penalty questions aren't exactly like Witherspoon?

William C. Mclain: Under the Witherspoon standard, that juror could not be excused based upon--

Unidentified Justice: Yes, but how about under some other standard?

I mean, Witherspoon didn't address that.

All Witherspoon addressed was how opposed do you have to be to the death penalty, without any other evidence, to assume that the juror can't perform?

Here, a juror says,

"Yes, it will. "

"It will. "

"I'm opposed enough that it will influence my judgment. "

William C. Mclain: --I think this Court--

Unidentified Justice: "May impair my judgment".

William C. Mclain: --This Court, in Adams v. Texas, held that those kinds of feelings, even though the juror could nevertheless indicate that they could judge the case on the evidence, but candidly admitted that their beliefs might have some influence, this Court in Adams v. Texas said that juror could not be excluded under the Witherspoon standard.

Unidentified Justice: Do you think the responses here are comparable to the Adams responses?

William C. Mclain: Yes, Your Honor, I do.

I think the... excuse me... the responses or the questions?

Unidentified Justice: Questions and responses.

The inquiry to this potential juror.

Do you think they are essentially the same in both cases.

William C. Mclain: Essentially the same; yes.

Unidentified Justice: Well, Mr. McLain, do you think that Witherspoon at least partially cut back on the previously established general rule that a juror who said that they could not faithfully follow the court's instructions couldn't sit as a juror?

That wasn't my impression.

William C. Mclain: No, Your Honor.

I think the the jurors who say they cannot follow the court's instructions or the law in deciding the case would not be permitted to sit as a juror.

Unidentified Justice: Witherspoon simply said, as I understand it, if you're simply excusing people because they're opposed to capital punishment, you're excusing a group of people who are entitled to sit on the jury; unless you would go further and say no, because of that belief they couldn't follow the court's instructions.

So the general principle is, if you can't follow the court's instructions on the law, you can be excused.

William C. Mclain: That's correct, Your Honor.

However, it must be an affirmative showing by the State before the excusal is proper.

Justice Sandra Day O'connor: Well, in fact, doesn't the Sixth Amendment and due process probably require unbiased jurors on the guilt/innocence question?

Isn't that a separate constitutional requirement, probably?

William C. Mclain: Of unbiased jurors?

Unidentified Justice: Yes.

William C. Mclain: Well, certainly the--

Unidentified Justice: On the question of guilt and innocence.

William C. Mclain: --Certainly, the defendant is entitled to an unbiased jury.

Unidentified Justice: And isn't it a question of fact for the trial judge to determine whether a particular prospective juror is unbiased?

William C. Mclain: It is a determination for the trial judge to make, of course, whether a juror is biased or not biased, or whether a juror, as in this case, fits under the Witherspoon standard.

Of course, that's an initial determination by the trial judge.

Unidentified Justice: You were saying that on this record, those four or five responses, that this did not show a bias that would have affected the judgment or guilt or innocence?

William C. Mclain: No, Your Honor, it does not show a bias that would have... perhaps affect it, but again--

Unidentified Justice: Then you and I aren't reading the same record.

William C. Mclain: --The juror... the juror indicated that her beliefs, she thought, might interfere.

However, she was never asked the question of whether she could set... sit whatever interference it might pose aside, and nevertheless follow the law in the evidence.

She was never instructed, in putting her inquiry in a little more context perhaps.

Unidentified Justice: And you base this all on the idea that the word "interfere" is so ambiguous that the statement that it would interfere with judging the guilt or innocence does not reflect a bias?

William C. Mclain: It does not reflect an adequate bias for an excusal under Witherspoon.

Unidentified Justice: And the answer to that was yes; that it would interfere.

She didn't have any... the juror didn't have any difficulty in understanding what "interfere" meant.

William C. Mclain: We still don't know, we still can't glean the interpretation the juror was placing on the word "interfere".

She may have thought "interfere", to the extent of making the decision more difficult for her, but nevertheless she could set that... may have been able to set that difficulty aside and still the follow the evidence and the law of the case, and decide the case impartially.

I think anytime we're dealing with jurors, human beings are going to have factors or variables that's going to make certain decisions less comfortable for them to make, and that's inherent in the jury system.

But that is not a reason for excluding the juror, just because the decisionmaking process may be made uncomfortable for them.

Justice Sandra Day O'connor: Well, what if the juror, on voir dire, discloses that,... for instance, in this case Miss Colby disclosed that her brother was a policeman who'd been injured in the line of duty, and her brother-in-law was a county prosecutor at one time, and she responds in answer to a question about whether that would interfere with her sitting as a trial juror in the case, she responds,

"Well, I think it would, actually. "

"I'm afraid it would interfere with my ability to judge the guilt or innocence. "

Do you think the defendant would have a right to excuse that juror for cause?

William C. Mclain: I think only if the defendant... excusal for cause would be appropriate only if the defendant could establish that that interference would prevent her from--

Justice Sandra Day O'connor: Well, on that exchange: is that enough, do you think?

Wouldn't you be in here arguing if that had been denied to you, that the court should have excused that juror for cause?

William C. Mclain: --That... again, the inability of the juror to nevertheless follow the law has not been established by the inquiry.

Certainly there are things in that juror's background which would create difficult in deciding the case.

Unidentified Justice: When the juror says,

"Look, it will interfere with my ability to judge guilt or innocence. "

How else do you establish, other than by a statement of the juror?

William C. Mclain: That's correct, Your Honor, and I think we still, going back to the inquiry in this case, we just... we can't determine, because of the ambiguity, both in the questions and the responses.

Unidentified Justice: How much more do you have to ask?

You ask the juror, well, what do you mean "interfere"?

"Well, I would be more likely to find the defendant guilty than someone who hasn't had these experiences. "

Is that enough?

William C. Mclain: That might very well be enough.

Unidentified Justice: Might?

William C. Mclain: I think that would probably be a basis for excusing the juror.

But again, the appropriate Witherspoon--

Unidentified Justice: Wouldn't that be the inference that you would draw from the juror's statement,

"It would interfere with my... these kinds of experiences would interfere with my finding guilt or innocence? "

William C. Mclain: --We still come back to the question, "interfere" simply does not mean, or necessarily mean to each and every juror responding to such a question, prevent the ability to follow the law and the evidence in the case and assign guilt.

And we also have a different situation when we're talking about the State excusing a juror under the Witherspoon standard and the defense's position of excusing a juror under some other personal bias standard.

I think the Witherspoon standard was imposed upon the State to assure that an inappropriate, overbroad restriction of the jury pool does not occur.

My time is short.

In view of the questions, that concludes my argument.

Chief Justice Warren E. Burger: Very well, Mr. McLain.

Do you have anything further, Mr. Landry?

Robert J. Landry: --Nothing further, Your Honor.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

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Argument of John J. Callahan

Chief Justice Warren E. Burger: We’ll hear arguments next in number 204, Crampton against the State of Ohio.

Mr. Callahan, you may proceed whenever you’re ready.

Mr. John J. Callahan: Mr. Chief Justice and may it please the Court.

The Crampton case presents a similar challenge to the imposition of the death penalty or cases of murder in the first degree under the Ohio procedure.

Similar to McGautha, the McGautha case in California, we decry the lack of standards to guide a jury in the selection of its penalties.

We have the added feature in Ohio of contending that a procedure which permits a jury to consider and determine the issues of guilt and punishment in a single proceeding violates the defendant’s rights under the Fifth Amendment to be free from self-incrimination.

The statutes involved in the Crampton case are the statute which defines murder in the first degree in Ohio which sets up the felony type murders and the necessity of deliberate or premeditated malice and also prescribes the punishment.

The statute says that the punishment is death unless the jury recommends mercy in which event the punishment is imprisonment in the penitentiary for life.

We are also bringing to the attention of the Court the statute which provides the right of allocution to a defendant in a criminal case.

The factual context of the Crampton situation is this.

James Crampton was a man approximately 40 years of age at the time of this incident, and he had been married to Wilma Crampton approximately four months at the time of the murder.

In November of 1966, shortly after the couple were married, Crampton admitted himself voluntarily to a hospital for treatment for drug addiction.

He later was confined under the court order of the Probate Court of Lucas County, Ohio to the Toledo State Hospital.

Shortly before the holidays of 1966, Crampton was released to his wife Wilma on a trial visit by the State Hospital authorities.

In January of 1967, she remonstrated with him to return to the hospital.

He refused then he left the family home. He remained away for approximately ten days to two weeks during which time, he was with a friend whom he admit in Pontiac, Michigan and traveled throughout the Ohio, Michigan and Indiana area procuring drugs with money that they obtained from thefts generally in motels.

On January 17, he returned to Toledo, Ohio and came to the residence of his wife at approximately seven o’clock in the evening.

Later the same evening, he was found driving a stolen car in the streets of downtown Toledo with a 45 caliber automatic on the front seat.

His wife’s body was discovered the following morning having been shot through the head with what appeared to be a 45 caliber automatic.

When he came to the Lucas County Court, he entered a plea of not guilty and not guilty by reason of insanity to the charge of murder in the first degree.

At the trial of his case before a jury, he did not testify.

He supplied in order to support his plea of not guilty by a reason of insanity, the medical records from the hospitals that he had been in both before and after his arrest, and also his mother testified on his behalf with reference to his background.

The jury had to decide at a single seat whether or not the defendant was guilty or innocent, whether or not he was insane at the time of the crime or possess its faculties at the time of the crime and whether his punishment should be life imprisonment or death.

The instruction given to the jury and we have no quarrel with the instructions with reference to the guilt or the insanity issues involved.

The instruction given to the jury on the question of punishment was, if you find the defendant guilty of murder in the first degree, this appears at page 5 five of the petitioner’s brief, the punishment is death unless you recommend mercy in which event the punishment is imprisonment during the penitentiary for life.

The jury found the defendant guilty of murder in the first degree did not recommend mercy and the defendant came before the court and was sentenced to death by electrocution in Ohio.

His appeal to the Ohio courts, the judgment of the lower courts have been upheld and this court has granted certiorari on the question of the standards question and what has been alluded to as the single verdict question.

In view of the fact that the standards question has been treated in depth to this point, I will address myself first to the question of Fifth Amendment problem as it arises in the Crampton case.

Chief Justice Warren E. Burger: Can the trial judge in Ohio or the reviewing court alter the sentence?

Mr. John J. Callahan: No Mr. Chief Justice, the -- once the jury in Ohio imposes the penalty of death it cannot be modified or affected by the trial court or by any appellate court unless there is a legal error found in the record with reference to the conviction and if the conviction falls of course the punishment falls with it but the sentence of death in and of itself imposed by the jury is absolutely immune at all stages in the trial and appellate procedure in Ohio.

Chief Justice Warren E. Burger: Do you consider that an important -- further important distinction from the McGautha case?

Mr. John J. Callahan: I do indeed, Your Honor.

The petitioner Crampton contends that he has under the Federal Constitution, two rights involved in this case.

One is the right not to incriminate himself under the Fifth Amendment, and the second is the right if he is found guilty of the charge made against him to have his sentence be imposed on a rational basis.

We contend that this is a due process right and that this latter right includes the right to a hearing on the question of life or death and the right to address evidence to the question of his punishment, address evidence to his sentence under the Ohio unitary trial procedure however, there is a dilemma confronting the defendant in a capital case.

If he invokes his Fifth Amendment right, the jury decides his punishment without ever hearing from the man whose life they hold in their hands.

If he waives his Fifth Amendment right, he will take the stand and subjects himself not only to the possibility of incriminating himself but also he had subject to impeachment as to his credibility and in Ohio this covers a great range of inquiry not only prior convictions for felonies and statutory misdemeanors in the civilian courts and in the military courts, he can be queried about his dishonorable discharge from service, any changes in employment and indication in a recent cases that he can be subject to impeachment by questioning about pending indictments, not convictions but only pending indictments.

The only limitation placed upon the subject by the courts of Ohio is that his limitation is within the discretion of the trial court and if the trial court does not abuse this discretion and it clearly shows by the record that there is an abusive discretion, there is no error.

So to avoid this --

Justice Thurgood Marshall: Mr. Callahan, in Ohio, how do you prolong the testimony other than the defense that would be for sentencing purposes rather than guilt or innocence?

Mr. John J. Callahan: Under the Ashbrook case in Ohio, Mr. Justice Marshall, it would appear that the question of punishment is not an issue and no evidence can be addressed by the defendant to the question of his sentence.

He must only go and present evidence on the question of his guilt or his responsibility for the crime.

Justice Thurgood Marshall: So no place can put on the usual evidence that’s well for example like it’s done in California [Voice Overlap]?

Mr. John J. Callahan: No, Your Honor.

Not directed to it directly.

Now, I will admit that in many cases in Ohio and I think this is in one of the opinions written by the Honorable Chief Justice at an earlier time indicated that in many cases a plea of not guilty by reason of insanity is entered and many mitigating factors directed toward the sentencing come in, in an indirect fashion under the plea of not guilty by reason of insanity.

Justice John M. Harlan: What about the State?

Did it put in evidence beyond the issue of guilt, evidence that goes on and the issue of punishment?

Mr. John J. Callahan: Mr. Justice Harlan, I believe that it would be difficult to distinguish whether the state’s evidence is directed to the issue of guilt or punishment because the aggravating factors that would be necessarily involved in a proving the crime itself would also be directed toward the punishment phase of the matter.

Justice John M. Harlan: Well, not necessarily he might have a lot of prior convictions.

It would admissible on each of guilt.

It would be an issue of punishment.

The State I gather cannot put in that kind of evidence.

Mr. John J. Callahan: Not unless the defendant comes on to stand himself or subjects his character or reputation to inquiry then of course the State can put on that type of evidence.

Chief Justice Warren E. Burger: May I ask you this question while you’re pausing here.

Is it not as practical matter possible for a defendant in any capital case to put the whole range of his right in evidence by use of psychiatric and other expert testimony as to his background, his boyhood, his habits, his narcotic addition if any, the whole range of his behavior pattern, and his lifestyle?

Mr. John J. Callahan: Yes, sir.

Yes, he can put it in.

It’s possible for him to put it in.

Chief Justice Warren E. Burger: And he can put it in without being subjected himself to cross-examination, put it in through the mouth of an expert.

Mr. John J. Callahan: That’s correct, but there is incriminating evidence that comes in with this psychiatric testimony or testimony of the psychiatric type.

In the course of entering these hospitals, a full and complete record is taken with respect to his case history.

If he has been involved in prior criminal incidents, they are appearing not only in the admission’s report, in the psychologist report and many times in the findings by the psychiatrist and he is when he submits the evidence of his background through medical records off times incriminating himself vicariously through what he has said to the psychiatrist at an earlier occasion.

Chief Justice Warren E. Burger: Well, you say this often happens but it doesn’t necessarily happen does it that this incriminating evidence comes in?

Mr. John J. Callahan: It doesn’t necessarily, no sir.

It would be difficult however to try a case in front of the jury and attempt to block part of the medical records from a technical standpoint to deprive the jury of some part of the medical record when you are submitting the others for their examination.

So there is a certain compulsion to submit to the jury the entire medical record and when there is this evidence in it.

When the defendant Crampton was confronted with the dilemma in the present case, he elected to invoke his Fifth Amendment right and he thereby surrendered his right to address the jury who is in effect the sentencer in this case on the right of his punishment.

Now the statute in Ohio, with reference to allocution is a mandatory statute so held by our Supreme Court and we go through the ritual in Ohio of bringing the defendant before the court in a capital case after he has been found guilty without a recommendation of mercy by the jury and asking him if he has anything to say as to why sentence should not be imposed upon him.

The court is not the sentencer in this case.

It merely imposing the verdict on the basis of the mandatory allocution statute he has asked this but the statute is meaningless totally meaningless in the cases of murder in the first degree but even -- where a death penalty has been imposed.

Now, if you can conceive of a situation wherein the judge asks the question, “Do you have anything to say why judgment should not be imposed against you” and a reason where to be advanced by the defendant in this hypothetical situation.

There is a serious question as to whether the judge, the trial judge could modify or in any way reach the sentence that has been imposed by the jury to amend it.

It’s totally insulated under the laws of Ohio once the jury has made this decision.

Unknown Speaker: In light of the (Inaudible) did, typify the allocution right as of constitutional dimension?

Mr. John J. Callahan: It has not Your Honor, its statutory right in Ohio and the Ohio Court has said that it is a mandatory right to be accorded the defendant.

Unknown Speaker: And that your position that under the situation with the jury fixes punishment that is totally or close to totally meaningless?

Mr. John J. Callahan: That is correct, Your Honor because the judge is not the sentencer.

The jury is the sentencer in the capital case and if allocution is to have any meaning, the meaning that the legislature intended for it, since it is a mandatory statute it should permit the defendant to address the sentencer the actual sentencer and not the man who merely echoes the words or the findings of the jury.

Chief Justice Warren E. Burger: Is that not essentially a question for the State of Ohio however, the Ohio courts, the Ohio legislature.

Mr. John J. Callahan: I believe, Your Honor that if under the due process clause, that this Court has said that the defendant has a right to an opportunity to be heard on the matter of his punishment.

In Specht versus Patterson and on Mempa versus Rhay, that I feel that the matter of allocution in a capital case rises to a constitutional level because there is more involved in a capital case allocution than there is involved in the case of the ordinary crime where the judgment is for a term of years.

Here, it’s a matter or life or death.

Here is the one place under the Constitution where the right of allocution should rise to the requirement of the due process clause.

Justice Harry A. Blackmun: If you don’t take a position, then your dilemma is one between a constitutional right and a right which is less than of constitutional dimension?

Mr. John J. Callahan: That is correct, Your Honor.

Justice Harry A. Blackmun: Of course, this may be of no significance.

I’m already mentioning that because this is the position to which you’re driven.

Mr. John J. Callahan: We are aware that it is in Ohio a statutory right that it must be accorded to the defendant, and we are asking this Court for the decision with respect to the whether or not the right in a capital case rises to a constitutional level.

The -- It has been suggested in the briefs that the testimony with respect to the defendant’s background and the other factors that he would wish to get before the jury may be supplied by others other than the defendant.

For instance in the present case, the mother of the defendant testified.

But I don’t believe that the problem that we face is cured by the testimony of others because the jury during the course of the trial sees the defendant in the courtroom each day hears the testimony of others with respect to his background and never hears from him because he has invoked his Fifth Amendment right.

And I think that the jury -- the individual jurors are inclined to draw inferences from the fact that he did not testify and that if he does not testify particularly in a case where he has pleaded not guilty, not guilty by reason of insanity, if they do not hear from him, the inference is that he is hiding something and that in their punishment phase they can punish him for not being full, free, fair and candid with them.

It is the sort of a Priscilla Mullins – John Alden syndrome of why don’t you speak for yourself?

Why come in with these other witnesses to have them testify about what you could tell us much better?

Under the system in Ohio, the unitary system, the --

Unknown Speaker: How many states have the unitary system?

Mr. John J. Callahan: All, except six, Your Honor.

The States which have it, there are number states of course which do not have the death penalty but in the states which do have the death penalty only Connecticut, Pennsylvania, New York, Texas, California and Georgia have the bifurcated system of trying a case, that is a trial on the guilt phase and a hearing on the penalty phase after the hearing on the guilt phase either by the same jury or with another jury.

Chief Justice Warren E. Burger: Some states which have had bifurcated trials in some areas of the criminal justice have abandoned it after trying it out have they not?

Mr. John J. Callahan: I believe they have Your Honor but I do not know of any in the capital case area where it has been abandoned.

Chief Justice Warren E. Burger: What was the earliest date of any state adopting the bifurcated trial on the issue of capital punishment?

California was 57 [Voice Overlap]

Mr. John J. Callahan: I believe California and New York were almost simultaneously adopted the matter.

Chief Justice Warren E. Burger: Fine, we’ll recess for lunch.

Mr. John J. Callahan: Thank you, Your Honor.[Lunch Recess]

Chief Justice Warren E. Burger: You may proceed Mr. Callahan.

Mr. John J. Callahan: Thank you Mr. Chief Justice may it please the Court.

The petitioner Crampton in this case when he was confronted at the outset of his trial with the dilemma as to his rights shows to exercise his Fifth Amendment right and because he feared that if he feared that if he tried to address his sentencer, the jury in this case, he would subject himself to the broad range of impeachment and inquiries and also subject himself to incriminating cross-examination.

This selection is coerced by the unitary trial system in Ohio.

He is compelled to select one of the rights either the right to avoid incriminating himself or the right to allocution because he fears the consequences that may come from selecting the other.

In this case, his choice was not a completely free one and this compulsion is induced by the system that prevails in Ohio.

It has been suggested that this choice of rights is no more than a dilemma that confronts any criminal defendant as to the matter of his trial tactics or trial strategy.

But we would submit to this Court that in making this selection, it is far more than a selection of trial tactics or a choice trial tactics.

In this case, the petitioner laid his life on the line in making this selection.

He knows as he goes into the trial that the jury will be informed and instructed on what to consider and what not to consider on the issue of its guilt.

But on the issue of his punishment, he knows that they may condemn him to death for any reason for 12 different reasons or for no reason at all.

Unknown Speaker: Couldn’t it be true in the -- wouldn’t that be true in the regular trial?

Mr. John J. Callahan: It would be Your Honor that he would.

And looking at the issue of punishment, there is no instruction with respect to punishment in the state of Ohio.

The jury is merely told as they were in the Crampton case that they had to decide after he was found guilty if they found him guilty of first-degree murder whether or not they should recommend mercy.

Chief Justice Warren E. Burger: Mr. Callahan as a practical matter isn’t it true that the overwhelming majority of defendant’s have other factors that inhibit him from taking the stand whether there’s a death penalty involved or not?

Mr. John J. Callahan: I would agree with you Your Honor that there are an unlimited number of other factors in addition to the death penalty in this cases but the capital -- the reason of paramount importance.

Chief Justice Warren E. Burger: You mean this choice is that much more important than the capital case?

Mr. John J. Callahan: Because of the capital case, [Voice Overlap].

Yes I beg your pardon sir?

Chief Justice Warren E. Burger: That’s the only real difference, isn’t it?

Mr. John J. Callahan: Yes, sir.

Chief Justice Warren E. Burger: Every defendant in every criminal case is somewhat chilled or otherwise discouraged about taking the stand in most cases isn’t that true?

Mr. John J. Callahan: Most if not all yes and but in the capital case, we submit there is a distinction because of the punishment involved and because of the manner in which that punishment is meted out in Ohio.

Chief Justice Warren E. Burger: UBut you’re not suggesting that either this defendant or defendants generally in capital cases would take the stand except for this factor?

Mr. John J. Callahan: I believe Your Honor that the choice that the defendant makes in a capital case at the outset of the case, if he were aware that he could address his sentence or on the matter he would be more inclined to take the stand in the penalty phase of the trial similar to California which we do not have in the Ohio case, if I understand Your Honor’s question.

Chief Justice Warren E. Burger: But that’s just another way of saying that if you have a bifurcated trial he has nothing to lose because he doesn’t reach the second stage until he has been found guilty --

Mr. John J. Callahan: That is correct.

Chief Justice Warren E. Burger: -- wherever he has nowhere to go except to prove his posture that’s the reality of it isn’t it?

Mr. John J. Callahan: It’s true but it’s also a possibility that is in a bifurcated trial is has the penalty phase could work against him permitting the state to introduce evidence of aggravation.

Now his character and reputation are at issue and but they’re not at issue in the guilt phase unless he puts them at issue.

So I submit that the difference is that when he makes the selection, he is considering its point.

Chief Justice Warren E. Burger: Well, but take this bifurcated situation whether it’s a second trial on penalty only.

He is not compelled to take the stand is he?

Mr. John J. Callahan: No, sir.

Not under the present procedures of which I’m aware.

Chief Justice Warren E. Burger: And the States in the cases where they have the two-stage trial may put in very wide range of evidence adverse to him factors and aggravation, whether he takes that stand or whether he doesn’t.

Mr. John J. Callahan: I agree.

And there’s that possibility but it has when you consider that that evidence cannot be introduced by the State in a single trial, unless the defendant puts it into issue himself then the defendant’s choice in avoiding the testimony and avoiding getting under the stand gives him the -- deprives him of the opportunity to discuss this matter of punishment with the people who actually are going to decide whether he lives or dies.

Unknown Speaker: Mr. Callahan was there any request for a bifurcated trial?

Mr. John J. Callahan: There was no request made in this case, Your Honor.

Subsequent to this case there have been requests for bifurcated trials made by the defendants in Ohio.

I know of no case in which it has been granted a motion made prior to trial by the defendant.

Unknown Speaker: May I ask you, in your study of this case that you are able to tell us when this objection that you’re making was first made to this kind of a trial?

Mr. John J. Callahan: Yes, sir.

Unknown Speaker: By whom?

Mr. John J. Callahan: The objection was made by the defendant on filing his application.

Unknown Speaker: I’m not talking about your case.

I’m talking about when anyone after the adoption of our Constitution first raised the question that you’re now presenting with reference to coercion on account of this kind of proceeding?

Mr. John J. Callahan: The first instance that I know of in my study of this case, Your Honor is the case of Maxwell versus Bishop which was before this Court in the 1968 term, I believe.

Unknown Speaker: Did you find any suggestion before that?

Mr. John J. Callahan: No, sir I did not.

This procedure of Ohio, it forces the defendant to make his selection between these two rights is we claim similar to the procedure that was condemned by this Court in the Simmons case that in a constitutional right should not have to be surrendered in order to assert another constitutional right.

We submit that the Ohio single verdict procedure compels this type of a surrender.

The procedure also imposes --

Unknown Speaker: In that statement, are you equating the right of allocution with the constitutional right?

Mr. John J. Callahan: I am, sir.

The right of allocution -- the right to offer evidence on the question of his punishment and the right to have an opportunity to be heard by his sentencer, I submit is a right guaranteed under the due process clause.

Unknown Speaker: Does any case state or federal so held?

Mr. John J. Callahan: The only cases that we refer to as supporting this contention Your Honor are the cases of Specht versus Patterson and Mempa versus Rhay.

This Court has also considered the burdens that are placed upon the assertion of a constitutional right in United States versus Jackson and in Crampton we contend that there is a impermissible burden placed upon the defendants exercise of his Fifth Amendment right against self-incrimination in violation of this Court’s holding in the Jackson case.

The procedure in Ohio has the quality of needlessly encouraging a waiver of this Fifth Amendment right if he wishes to talk to the jury and it needlessly chills the right to present evidence on the question of punishment relevant to his rational sentencing.

The court under the United States Constitution has held that the defendant need not do anything to defend himself against a charge brought against him but it has likewise observe that he certainly cannot be required to help convict himself.

We submit that the Ohio procedure requires that he help convict himself and that the judgment below should be reversed for that reason.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Callahan.

Unknown Speaker: Mr. Callahan, let me ask you one other question.

As I understand it, this record contains evidence bearing upon the defendant’s sanity or alleged insanity, does it not?

Mr. John J. Callahan: That is correct, Your Honor.

Unknown Speaker: Is this not in itself a mitigating to a degree in any event?

Mr. John J. Callahan: It is to a certain extent.

However, introducing the medical records to support the plea of not guilty by reason of insanity, the defendant had to take another calculated risk as to its trial tactics because in those records was contained his prior criminal record which he had told the admissions officer and the doctors and the psychiatrists at the hospitals from which the [Voice Overlap].

Unknown Speaker: That leads me to my next question.

Doesn’t the record contain already evidence as to his alleged addiction and his prior convictions?

Mr. John J. Callahan: Yes, sir it does.

Unknown Speaker: Well then what prejudice was he concerned about in not taking the stand?

Mr. John J. Callahan: The prejudice of incriminating himself, the possibility of incriminating himself in this case in violation of his rights under the Fifth Amendment, the basic contention is that the jury having at one seating to consider guilt or innocence, sanity or insanity, and punishment either death or life is a procedure that compels the defendant to make certain choices which are needlessly made which he does not have to make if there were a bifurcated trial, if there were judge sentencing or review of the sentence by judges in Ohio or if the death penalty were abolished.

Unknown Speaker: Well, I understand your general argument, I’m trying to be a little pragmatic at this point and you have answered to my inquiry that the record does contain already evidences to his prior convictions.

It already contains evidence as to his difficulty with drugs and it already contains evidence with respect to the issue of sanity and I think my question therefore is how otherwise as a practical matter would if he had been prejudiced by taking the stand?

Mr. John J. Callahan: He would be subjecting himself to by the state’s questions to testimony about the crime itself, the prejudice is in the -- in incriminating himself.

He would be in effect helping the state to convict himself -- convict him of his crime.

Unknown Speaker: What was the na --

Do you have any comment about the Spencer against Tracy, this was against Texas?

Mr. John J. Callahan: Spencer, against Texas?

Unknown Speaker: Texas, yes.

What was the name of the case to which you referred me?

It was the first time you’ve seen this right here?

Mr. John J. Callahan: Maxwell versus Bishop, Mr. Justice.

Unknown Speaker: Versus Bishop?

Mr. John J. Callahan: Maxwell versus Bishop which was --

Unknown Speaker: I don’t find if cited, didn’t you?

Mr. John J. Callahan: I do not believe it was cited.

Unknown Speaker: I’m disappointed.

Mr. John J. Callahan: It was on the -- decided by this Court during the last term.

Chief Justice Warren E. Burger: Well have you answered Mr. Blackmun’s question yet fully?

Mr. John J. Callahan: This was.

Unknown Speaker: Now that I have my characters straightened out, it is Spencer. [Laughter]

That shows that I do.

Mr. John J. Callahan: With reference to Spencer versus Texas, the syllabus report being made available to the jury prior to the trial of the case prior their consideration of the crime.

The only manner in which we can distinguish that case Your Honor is that the -- this was if I recall not a capital case and I would feel that there would be a great deal more concerned about the defendant’s right to speak to a jury or the right of records coming in, in violation of his Fifth Amendment right in a capital case.

Unknown Speaker: Do you feel that a decision in your favor here would compel an overruling of Spencer against Texas?

Mr. John J. Callahan: No, sir I do not.

Chief Justice Warren E. Burger: Just one more question.

You have me a little bit confused when you referred to a separate stage trial on the issue of criminal responsibility or the insanity claim.

You don’t raise that as the constitutional question?

Mr. John J. Callahan: No, sir.

I do not raise that as a constitutional question.

I’m merely contending that in this case the defendant was entitled to a trial on the issue of his guilt and an opportunity to address his sentencer on the issue of his punishment.

The trifurcated trial with the California problem, we are not saying in our submission is a constitutional matter.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Callahan.

Mr. Resnick, you may proceed whenever you’re ready.

Argument of Melvin L. Resnick

Mr. Melvin L. Resnick: Mr. Chief Justice and may it please the Court.

The petitioner’s basic decision in regard to the question of bifurcation of trials and capital cases consist of three matters.

His first position is that there is a collision of constitutional rights.

In this particular case, he claims his Fifth Amendment privilege against self-incrimination and his alleged Fourteenth Amendment right to allocution are colliding, and that one impermissibly burdens the exercise of his privilege not to testify.

His reliance in that regard on the cases of U.S. versus Jackson, Simmons and cases were two specific constitutional rights were involved.

It is further the amici claim that we have a question of fundamental fairness under the due process clause.

It is the position of the State of Ohio that there is no collision of constitutional right in that number one, allocution has never risen to a constitutional right.

Secondly, that there is no burden or penalty on the exercise of his right against self-incrimination because allocution evidence can be admitted by other witnesses.

Secondly, the petitioner had a choice to do what he considered would benefit him the most when he made his decision not to take the stand.

There was no compulsion, there was no extra burden it was a pure voluntary choice.

It is also our position that the unitary trial is fundamentally fair.

And indeed, better on the facts than in the case of Spencer versus Texas which Justice Blackmun referred to.

Justice Thurgood Marshall: Mr. Resnick, in this allocution testimony do you tell us that in Ohio in the trial on seat you can put witnesses on who know nothing about crime at all but just being the nice fellow?

Mr. Melvin L. Resnick: In this --

Justice Thurgood Marshall: Would you do that?

Mr. Melvin L. Resnick: In this specific case Mr. Justice Marshall, the mother of the defendant who knew nothing of the facts of the actual crime testified as to the petitioner’s entire life background, his trouble with the law, his marriages, whatever.

Justice Thurgood Marshall: As a prosecutor, have you ever been worried about mother’s testimony urging your opinions?

Mr. Melvin L. Resnick: Pardon, I’m sorry.

Justice Thurgood Marshall: As a prosecutor, have you ever heard of a defendant’s mother’s testimony right in your case?

I’m saying that general (Inaudible) testimony.

People in the neighborhood, church people, you don’t put that on the regular hearing on guilt, am I right?

Mr. Melvin L. Resnick: The Ohio statute provides for character witnesses as to reputation and background and character.

Justice Thurgood Marshall: -- you can put on it anytime?

Mr. Melvin L. Resnick: The defendant --

Justice Thurgood Marshall: If the witness does not take the stand?

Mr. Melvin L. Resnick: I’m talking about the defendant’s case Your Honor.

In his case --

Justice Thurgood Marshall: Well, I’m talking about the Law of Ohio, if the defendant does not take a stand he can still put on character testimony?

Mr. Melvin L. Resnick: The defendant may put in his character in issue other that through himself.

Yes, under Ohio Law.

Justice Thurgood Marshall: Yes, but until it’s in issue it’s not in.

I just had difficulty in seeing that he has all of the benefits of a sentencing hearing in his regular trial that’s my only point.

There must be some difference you know how?

Mr. Melvin L. Resnick: Well, the difference in Ohio Court place is that the defendant himself and I think this is what the petitioner is getting to -- the counsel for petitioner is getting to.

He cannot personally appeal to the jurors in the case that is his main contention.

He is not contending that other witnesses may not testify as to his --

Justice Thurgood Marshall: Certainly, he cannot tell the jury which he could do and in sentencing hearing, “Of course, I admit my guilt and I’m sorry for it and I ask for mercy.”

Of course, he couldn’t take that position.

Mr. Melvin L. Resnick: That is correct.

We have no argument --

Justice Thurgood Marshall: Now, he loses that much, doesn’t he?

Mr. Melvin L. Resnick: That much we would go on with.

Justice Thurgood Marshall: I mean you don’t have to win all of this in order to sustain your point that’s all.

Otherwise, it’s a little broad.

Mr. Melvin L. Resnick: We submit to this Court that as argued by counsel, the allocation statute in the State of Ohio as in most other states is really only a legal objection and it is so historically, and this Court has noted that distinction in the case of Schwab versus Berggren decided in 1892.

As stated in me Government’s brief, it is usually something like be pleading of a pardon or any other type of legal objection.

It actually has nothing to do with the sentencing discretion regarding the defendant’s opportunity to give mitigating evidence.

The only place where I could imagine that this plea of allocution under the Ohio statute reply would be where the defendant could claim that there is an insufficiency of the evidence upon which the verdict was based.

These are the normal things that will be brought up on a motion for new trial.

In regard further to allocution, the Court in Williams versus New York, Williams versus Oklahoma held that the due process clause did not require a hearing and to give a convicted person an opportunity to participate in a sentencing procedure.

The Hill case in 1962, although not a capital case, specifically stated that allocution was not a constitutional right.

Petitioner claims his only claim as to elevating allocution to a constitutional right is base on the decision of the Court in Specht.

But that case is easily distinguishable, that case had its defendants upon another fact-finding determination which had to be made.

From these cases, we submit that the petitioner’s reliance on cases such as Simmons, Jackson-Denno is misplaced.

We are not dealing with two specific constitutional rights and we submit that the issue is very similar indeed to the case of Spencer versus Texas is a two-part trial necessary purely because the jury must decide two issues.

We submit that it is not.

As noted in the discussion with Justice Marshall.

In this case, the defendant’s mother did testify, there was testimony of two psychiatrists, there was testimony of a physician and there was introduced them to the record three different hospital records.

All of these we submit can only serve one purpose and that was to mitigate the penalty in this case.

In this case, the petitioner did not take the stand and he then claim that the procedures of the unitary trial necessarily chilled the assertion of his privilege.

His decision to take the stand or not is a decision similar I submit to the guilty plea cases decided by this Court last term.

The question is, was it compelled?

Was it a voluntary decision?

We state that the case of Williams versus Florida, the alibi -- notice of alibi case, this Court stated that the defendant faces such a dilemma demanding a choice between complete silence in presenting a defense has never been thought to be an invasion of the privilege against self-incrimination.

In the instant case, either impeachment evidence or similar acts of evidence was introduced into the record.

If it had been, the Court under Ohio law would have had to give limiting instructions to the jury as to the nature of that evidence and how they could consider it.

This Court has held that under the doctrine of Spencer versus Texas, those types of leavening instructions are perfectly proper.

The petitioner in this case introduced practically everything he could introduce.

If the procedure in Spencer versus Texas was fundamentally fair, were prior crime evidence was introduce without any question now I submit in a unitary capital case where impeachment is only possible if the defendant takes the stand that we have a trial more eminently fair than in Spencer.

We submit further that the sentencing in a unitary trial is rational when based on the evidence in the case.

All of the facts in this case came out in that trial.

All of the facts of the defendant’s background, the jury saw this defendant sitting there for the week that the case tried.

They saw the witnesses.

They heard his psychiatrist.

We would also submit, pardon me.

I would like to come back to one other thing the question of the jury instruction in this particular case.

The Court will find in volume 1 of the record in this case that on the -- before their examination of the entire veneer of the juries, the Court did a little more than what was found in a final charge on it described the duties of juries functions when it came to the recommendation of mercy.

The Court there stated that, that decision must be based upon the facts and circumstances in the evidence.

We also submit to the Court that the alternative of the bifurcated trial is -- the alternative of a bifurcated trial is not free of potential harm.

Just again as in the guilty plea cases where this Court stated that it would not be fair or that would be cruel to make all defendants submit to a jury trial we respectfully submit that it would also be cruel to make all defendants submit to a penalty trial.

The use of the unitary trial has a very long history in this country.

Only six states as the Court has noted have the split verdict procedure.

The States have a very valid interest and purpose in maintaining that unitary trial.

The alternative of bifurcation and I submit possibly trifurcation and quadfurcation, if a constitutional principle is to be announced could only add to the time, cost and complexity of criminal trials and appeals.

That burden became very evident this very morning when it was stated that 69% of the penalty trials in California had been reversed requiring new juries, more court time.

The extra burden would be disproportionate we submit to the alleged possible benefits and in some instances actually detrimental to the defendants.

There have been cases where defendants have complained that they had to stand a penalty trial.

We submit that the convenience of a single proceeding weighs heavily against an added procedure which this Court has stated is not constitutionally required.

In regard to the standards issue, as I have stated in the bifurcated trial argument, the decision is based upon the evidence in the State of Ohio.

The Ohio Supreme Court cases have so held the Howell case, the Caldwell, the Shelton case.

The Ashbrook case which has been cited by the petitioner here that there can be no evidence introduced pointing towards mercy was a Court of Appeals case.

The Supreme Court of the State of Ohio in this very case indirectly overruled the Court of Appeals holding.

I think that the question is ultimately, have any type of standards ever be attainable?

We submit that it would be almost impossible to articulate any type of list of factors in advance for every conceivable situation that might arise in the future.

To say that on one hand there are required findings a jury must make or to say no on the other hand that it is just a matter of reference to the jury so it can guide them.

We think is an inconsistency.

Constitutionally, if it is required it would have to be findings.

This Court in the past in the Winston case and in the Enbridge case approved full jury discretion.

We don’t believe and we submit earnestly that regardless of any standards that the decisions of the juries would not be any different in what they are today and the two cases the Court is now hearing.

The jury discretion expresses the conscience of the community as this Court has held in Witherspoon and it is in the end a value judgment as to the sentence and not to guilt and it should not be subject to the same formalities of the guilt determination process.

The long standing and widespread use of absolute discretion which this Court noted plus the fact that no Court has ever ruled in favor of the defendant on this particular issue and there had been many, many cases as cited in the briefs, we believe reflects that the principle of the unitary trial was standardless discretion to the jury is not only constitutionally sound but one in the administration of criminal justice is now required.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Resnick.

Mr. Solicitor General.

Argument of Griswold

Mr. Griswold: May it please the Court.

This case too involved the issue of standards which was the only issue in the McGautha case -- the McGautha case.

I have only a little more to say about that.

No one has been able to put before the Court just what the standards are or should be.

They have never been formulated the closest that has come to that is a very serious effort made by Professor Wexler as reporter for the American Law Institute for the Model Penal Code in which they were included some eight or ten aggravating factors and mitigating factors.

Much the same factors are included in the recently publish preliminary or study draft of a New Federal Criminal Code by the National Commission on Reform of Federal Criminal Laws but it’s not surprising that they are very similar to those the Model Penal Code because Professor Schwartz who was the director of that study was the associate reporter for the American Law Institute Study of the Modern Penal Code.

In the massive investigation into the actual experience in California which is published a year ago in the Stanford Law Review, there were some 175 factors which they work out and undertook to tabulate to see what the actual experience had been and I would hazard a guess that putting a 175 factors before a jury and in particular without any clear instruction is to how they should be weighed and I don’t know how such instructions could be given would not be a productive assignment.

There’s one more factor with respect to standards that I think might be worth mentioning.

The statutory pattern in these two cases vary somewhat.

In California, the jury is given discretion to determine the penalty.

In Ohio, the statute provides that the penalty for first-degree murder is death but that if the jury recommends mercy and then it shall be life imprisonment.

There’s some suggestion in some of the briefs that this is a very vital distinction.

I do not believe that it is any distinction.

I think that it is considering the solemnity and the obvious significance of the task with which the jury is confronted and all experience shows the juries are particularly properly selected.

Juries are extremely conscientious on this test that it does not make any difference either in result or in law as to which formulation is used.

Now, I will turn to the split trial or bifurcated trial issue which is presented only in the Crampton case and first, I would like to ask to enter a question asked by Mr. Justice Black, he asked when the question of the necessity for a bifurcated trial was first raised and we believed that it wasn’t in the New Jersey case cited in our brief at page 29 of State against Johnson.

And that was in 1961 and appeal was taken from that decision to this Court and it was dismissed for one of a substantial federal question in 1961.

Unknown Speaker: I understand from my reading of the history of the bifurcated trials which this question was raised before legislature long before that.

Mr. Griswold: I believe so Mr. Justice.

I was referring to being judicially raised and particularly before this Court.

It was raised in that case before this Court in 1961.

I know of no previous allusion to it either in court or before this Court.

Unknown Speaker: What was the earliest legislative action?

Mr. Griswold: The earliest legislative act was 1957 in California and I am not aware of any serious presentation of the matter either in academic journals, law review articles or before legislatures prior to that time.

Unknown Speaker: And since then how many states?

Mr. Griswold: Six states now have it including one or two which have adopted it within recent years that would last two to three years.

New York, California and Texas are large and important States which now have the procedure.

With respect to the bifurcated --

Justice Potter Stewart: What page of your brief can we turn to?

Mr. Griswold: It’s on page 29 Mr. Justice, the State against Johnson.

Justice Potter Stewart: Thank you.

Is the -- is there any legislative history available as to the prompt of the California legislature in 1957 to act a bit?

Mr. Griswold: Mr. Justice, I’m unable to answer that.

I do not know.

Justice Potter Stewart: Any claims in California that this is constitutionally required.

Mr. Griswold: I am not, I do not believe it was ever contended that it was constitutionally required.

It has been contended that this was wise, safe penology and good way for state to set up its criminal law.

I have never seen a serious contention except in these cases that it is constitutionally required.

Incidentally, State against Johnson also involved the standards issue and there again the Court dismissed the appeal on the ground that it did not raise a substantial federal question.

With respect to the bifurcated trial, we have again a question that seems to me essentially is separation of powers even assuming that the bifurcated trial is a good thing or is a desirable innovation.

Is this a determination which should be made by the people through their representatives in the legislatures or in Congress or is this something that this Court should now as an exercise of the judicial power find to be required by the very general language of the due process clause of the Fifth and Fourteenth Amendments.

This Court has already in various ways indicated that bifurcated trials are not constitutionally required.

The clearest example is Spencer against Texas to which in reference has already been made and which is discuss at pages 84 and 87 of our brief decided just three years ago and with a clear statement there that there is no basis for finding it required by the Constitution whatever its merits may otherwise be.

The constitutional intention -- constitutional contention made there was surely more serious than that advanced here.

That case strikes me as a tougher case than this one do decide but the court did not accept it making it plain that the details or procedure in criminal cases are to a very great extent matters to be decided by the legislature of the several states.

It may be noted too that this Court has never required a two-stage trial in the exercise of its supervisory power over the trial of federal criminal cases though such trials have been required or at least authorized in certain circumstances by the Court of Appeals for the District of Columbia.

As I’ve been indicated, bifurcated trials have been adopted in this country now by six states.

The first being California in 57 are experienced so far as relatively limited and the procedure is surely in the experimental stage hardly a situation for constitutional mandate.

Incidentally, California has trifurcated trials by the express provision of its statute.

If there is an issue us to sanity, you have guilt sanity and penalty as separate trials.

It has been suggested that some other issues like alibi and self-defense are just logically susceptible to this treatment and you could have great multiplication on trials at least theoretically.

Now, it’s argued that split trials must be provided in order to avoid a violation of the defendant’s privilege against self-incrimination.

But this contention will not with stand analysis as several decisions of this Court show.

The guilty plea cases of last spring a very close to this.

But the privilege against self-incrimination does not mean that only matters adverse to the defendant are barred while he remains free to show those things which are favorable to him through his own testimony.

On the contrary, the privilege means that the defendant cannot be called as a witness at his own criminal trial.

On the other hand, he is always free to be a witness if he chooses but if he is a witness he is a witness for all purposes including cross-examination.

The effort of the trial is to get at the truth including facts which are adverse to the defendant as well as those which are favorable to him.

For basic policy reasons, the Constitution limits the effort to develop the truth by providing that the defendant cannot be compelled to testify.

That is his privilege.

It is for him to decide whether to exercise it, guided by the assistance of his counsel.

It is often a hard choice for the defendant would like to show favorable matters without getting himself involved in the unfavorable.

But the pressure comes from the facts which have been adduced that the trials through witnesses other than the defendant.

He is not deprived of his privilege merely because he would like to testify to favorable matters.

This is well-illustrated by the record in this case.

In fact, the defendant here did exercise his privilege against self-incrimination.

He did not testify.

It cannot be said here that he was deprived of his privilege.

Moreover, as a matter of the record he did not ask for a bifurcated trial.

It is true that the Law of Ohio does not provide for such a division of the trial but the fact remains that he did not seek it and there may well have been reasons for that decision as I shall explain in the moment.

Moreover, he did have an opportunity to show favorable matters, true witnesses other than himself.

The defendant’s mother testified and he introduced substantial medical evidence on the insanity issue, thus, putting before the jury much material bearing on the defendant himself and his backgrounds a favorable to his interests.

It is true that he did not testify himself but that surely does not mean its exact opposite that he was denied his privilege against self-discrimination.

And indeed, this highlights the basic difficulty with the bifurcated trial as it has been developed in the six American States which now use it.

In the penalty trial, the State can and does show things adverse to the defendant which would not be admissible in the unitary trial and I think the McGautha case itself is a very clearly example of that.

If there had not been a separate trial, much that was harmful to McGautha and much that serve to distinguish him from his co-defendant, I would not have before the jury because there was a separate penalty trial, the State showed the prior convictions, the two co-defendants testified each one trying to charge the other with having a fire to shot and the jury drew its conclusions from that.

Notable among the things which can be shown are the prior criminal convictions and other evidence reflecting adversely on the defendant’s character.

Thoughtful students have concluded that a death penalty is more likely in a bifurcated trial than it is a unitary one.

Indeed, we might well have arguments before this Court that the bifurcated trial deprives the defendant of due process of law though such an argument would presumably be in effective in the light of this Court’s decision in such cases Spencer against Texas and the two Williams cases.

It would be improvident we believe to freeze this ambivalent procedure with its merits and demerits still elusive into a constitutional directive.

With a clear indication that separate penalty trials may have an adverse effect on defendants who are exposed to them, there is a need for prudent restraint in deciding that the Constitution requires their adoption as an integral feature of due process.

Certainly, our experience with bifurcated capital trials over the past 13 years is empty of any genuine or compelling indication that such procedures are more fair to an accuse than the traditional unitary trial.

In this situation, a procedure never thought of when the due process clause became part of our Constitution in 1790 and again in 1868, you’ll remember in 1790 the trial had to be began and completed between sunup and sundown and never seriously advance in the first 175 years of our constitutional history should not now be read into the due process clause where it surely cannot be found by any accepted process of construction.

If that were to be done perhaps it could be said that it would be hard to articulate the standard which lead to the conclusion.

The judgment of the Supreme Court of Ohio should be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Callahan, you have 10 minutes.

Rebuttal of John J. Callahan

Mr. John J. Callahan: Thank you Mr. Chief Justice.

I will not repeat what has been said generally with respects to standards but I would submit to the Court that Ohio as it has been suggested in a couple of briefs filed in this case could be considered to have a standard cited on page 20 of the petitioner’s brief is the case of Howell versus State in which the Ohio Supreme Court held that was error -- not error to charge the jury in the capital case “to consider and determine whether or not in view of all the circumstances and facts leading up to and attending the alleged homicide as disclosed by the evidence you should or should not make such recommendation of mercy.”

I will submit that that is merely an instruction to the jury that they should consider all of the evidence in the case and it may be a standard.

But if not an adequate standard and it was not given in the Crampton case, the only instruction that was given to the jury that is other, that is the seated jury, the 12 people appears at page 5 of the petitioner’s brief.

If you find the defendant guilty of murder on the first degree the punishment is death unless you recommend mercy in which case it is life.

But the instruction goes on and is diametrically opposed to the instruction which follow the penalty trial in California and the instruction which appears at page 6 of the brief says you must not be influenced by any considerations of sympathy or prejudice.

I submit that when you tell the jury that one of the things that must not consider is sympathy, you have effectively stopped any argument by the defendant for mercy in the case.

The distinguished Solicitor General has indicated that the single verdict trial, the bifurcated trial would be available also to a defendant.

In cases of self-defense defenses or in case of alibi defenses, the distinction that I would point out with reference to those two observations is that both of this matters self-defense and alibi relate to the question of the defendants guilt.

They do not go to the question of his punishment.

Chief Justice Warren E. Burger: Well, does not the criminal responsibility also go to the question of guilt in the legal sense?

Mr. John J. Callahan: That is correct, Your Honor.

Chief Justice Warren E. Burger: But we, California at least bifurcates that trial good enough?

Mr. John J. Callahan: That is correct.

Chief Justice Warren E. Burger: So it wouldn’t be very remarkable if someone would build on the analogy of bifurcated trials for insanity question to bifurcated trial for alibi or self- defense?

Mr. John J. Callahan: I submit that it could be argued that way, Your Honor but it is not part of the submission in this case that we require a -- that they require a bifurcated trial under self- defense and alibi.

Chief Justice Warren E. Burger: But wouldn’t you agree that the arguments might be just as valid so to take the self-defense case?

Mr. John J. Callahan: I don’t think that they could be just as valid as the insanity argument.

The insanity plea has been -- is a different type of plea involving a certain admission by the defendant.

Chief Justice Warren E. Burger: Well each of them is in the nature at least in broad sense in the nature of plea of confession and avoidance, isn’t it?

Mr. John J. Callahan: That is correct.

Chief Justice Warren E. Burger: So in that nonsense to have a common genesis and common thread of logic?

Mr. John J. Callahan: That is correct but to say that -- they do not however, self-defense or insanity or alibi relate directly to the question of punishment and what we are contending in this case is that the bifurcated trial should permit the defendant after he has been found guilty and responsible to address the sentencer on the question of his punishment.

The trilogy of guilty plea decisions made by this Court last term, I believe can be effectively distinguished from the Crampton case as the Crampton case -- in Crampton, he entered a plea of not guilty and stood on that plea throughout.

Whereas the cases decided by the Court in the last term the Brady, McMann and Parker cases involved originally a guilty plea.

A concession by the defendant and that he was guilty of the crime.

I submit to the Court that for the reasons that we have argued, the decision of the Ohio courts should be reversed and the cause remanded for determination with respect to punishment.

Chief Justice Warren E. Burger: Your colleague in other case, Mr. Selvin suggested that as far as he could see, there was no constitutional barrier to having a legislature vest in the judge the power to fix the sentence without standards or to fix a mandatory sentence.

Do you have a view on that, Mr. Callahan?

Mr. John J. Callahan: Yes, I don’t do see no constitutional barrier for prohibiting the legislature from fixing standards for the judge.

Chief Justice Warren E. Burger: Well, I know.

My question is just the reversed, vesting the power of imposing the death sentence in the judge but without any standards?

Mr. John J. Callahan: Oh!

I would have to let go somewhat of Mr. Selvin said in his case.

The judge is in effect a professional sentencer by his training, by his expertise that he and his background he brings a certain criteria to a case.

And I think, it’s the essence of the judgeship that he should not have to have standards imposed by the legislature.

It is only for the layman who sees -- who seats at one time and is in effect an ad hoc legislature on the question of the punishment in the case that we need standards to guide them.

Chief Justice Warren E. Burger: I have never been satisfied as to the value or utility of these studies which are done because of the difficulty involved, but in the study of the jury function by Professor Calvin and his associates of the University of Chicago.

There conclusion was that judges having the power to impose the death sentence imposed that exactly twice as often over a big number of cases as juries did.

Mr. John J. Callahan: I recall it conclusion on the Calvin reports.

Chief Justice Warren E. Burger: At that would not certainly lead defendant as to want to move this out of juries and put it judges really, would it?

Mr. John J. Callahan: No sir not that conclusion.

They -- with reference to the problem of standards, there appears in the petitioner’s brief at page 21 probably the best evidence with respect to the necessity for standards where a foreman of a jury comes before the Court and asks the Court what criteria?

What are the grounds for granting mercy in the case and there is a colloquy there between the judge and the foreman of the jury that betrays the jury’s curiosity as to the standards necessary for the granting of mercy.

Even to the point where they want to consider the sociological and environmental factors in it and it’s possible that these standards should not be as detailed as the standards in the Model Penal Code but there should be some guidelines given to the jury so that they could move ahead on this question of standards with guidelines rather than operate in the vacuum as they appear to be doing in Caldwell case which we have cited.

Accordingly, I submit that the decision below should be reversed.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Callahan, like Mr. Selvin, you acted at the request of the Court and by the appointment of the Court.

We thank you for your assistance to the petitioner and to the Court for your services.

Mr. John J. Callahan: Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Thank you.

The case is submitted.

Featured:

Maxwell v. Bishop - Oral Reargument

Wed, 10 Aug 2011 15:25:21 +0000

Case:

Maxwell v. Bishop

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Maxwell v. Bishop - Oral Argument

Thu, 23 Aug 2012 18:10:19 +0000

Case:

Maxwell v. Bishop

Media File:

13_19690304-argument.mp3

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13_19690304-argument

Transcript:

Argument of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Number 622, William L. Maxwell, petitioner versus O.E. Bishop, Superintendent, Arkansas State Penitentiary.

Mr. Amsterdam.

Argument of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Mr. Chief Justice, may it please the Court.

This is a federal habeas corpus proceeding on behalf of William Maxwell.

It condemned challenging the sentence of death imposed upon him by an Arkansas jury.

Unlike the Boykin case which the Court has just heard.

No question is presented here with regard to the ultimate power of the State of Arkansas to use death as a penalty for crime.

Even for the crime of rape of which William Maxwell was convicted.

The Questions presented relate entirely to the procedures by which the death penalty is administered in the State of Arkansas and by which out of the total number of persons convicted of the crime of rape, some are selected to live and others are selected to die.

We have two federal constitutional claims against the Arkansas procedure which for short reference I may term the standards claim and the single verdict claim.

In order to put this into prospective and to show their relationship because I think they are eminently related.

I would like to take a hard look at the outset if I may at the procedure by which Arkansas does determine case by case and individual cases whether persons convicted of rape shall live or shall go to their death in the electric chair.

Now under Arkansas law, there is one statutory provision which provides that the punishment for the crime of rape is death.

In other statute, in effect since 1915 provides that in any case in which the punishment is death by law, the jury may return instead a verdict of imprisonment for life in state penitentiary.

The effect of these two statutes therefore is to create an authorization.

The availability of returning the death penalty in a broad range of cases but to require the death penalty and not thereby both supposing that selection is possible among the total number of persons convicted of rape and requiring that selection must in fact be made among the total number of persons convicted of rape of some smaller number who shall suffer death, the extreme penalty for that crime.

Now, it’s not surprising that such a selective process is set in motion by Arkansas law because the crime of rape is in Arkansas as elsewhere.

A crime that includes a wide range of factual situations, it is simply any consummated sexual assault.

It can be committed against a mature woman, against a child, with a weapon endangering life, or not endangering life.

The victim can be permanently, physically injured or not permanently physically injured.

Tremendous range of factual situations involved any large range of offenders and in fact on this record one can say that only about a quarter, 25 out of a 100 of the persons actually convicted of rape get to death sentence.

Now, I put the focus here at the beginning to point out what I -- where I think the focus has to be in this case.

On the process by which that selective judgment is made, this is not an insignificant or non-important process.

It is literally vital but it is also vital and legal sense because the law of Arkansas as to whether rape is or is not a capital offense is in fact being made case by case as in each individual adjudication the determination is made whether the defendant lives or dies.

It is a law making process the penalty for rape in Arkansas is not death.

It is subjection to this decisional process and the question which this case presents is whether the specific procedure here is in Arkansas.

To make that decision, comport with the Constitution.

Now, how is the decision in fact made.

It is made in each case by a jury.

A jury cannot be waived in a death case in Arkansas.

If as petitioner Maxwell did, the defending contest guilt if the intensity is innocent, a jury is in impaneled to decide two distinct questions whether he is guilty of the crime of rape and if so, what punishment shall be imposed upon it.

As to the first of these two decisions whether or not the defendant is guilty of rape, the jury is guided as it is in any criminal case by the law defining the crime of rape and the trial in the capital case in Arkansas is not unusual in this regard.

The jury can’t convict the defendant simply because they don’t like him or because he’s unpleasant or because they don’t like the color or his skin or for any other reason.

It can convict him only if they find each element of the offense established beyond a reasonable doubt on the record.

The definition of the crime of rape gives the jury something to talk about.

When they go back to decide the case, they talk with each other about what is the elements of the offense they’re made out and the rule of law that is being applied by the jury to decide the guilt question and only the guilt question is the same rule of law.

It applies to every other person in Arkansas as previously been tried for rape or will be.

When we get to the penalty question, on the other hand, we are in a different world because on the penalty question the jury is given no instructions.

The jury is given no principles to guide its decisions.

The ordinary procedure in Arkansas is simply to give the jury two forms, a death form which rates we find the defending guilty as charge and a life form which says we find the defendant guilty as charge and sentence him to imprisonment for life.

No instructions are given.

The jury is simply told, take your choice.

Now, we have characterized that process of decision making in our brief not in the constitutional sense or simply a descriptive sense as arbitrary.

And I might rest on that because neither California nor Arkansas in response as coupled with that question only they defend the process of sentencing as I understand it on the ground that it constitutes a beneficent arbitrariness.

But I think it is helpful to examine in somewhat more detail exactly what is entailed in what I call an arbitrary process.

The jury is given in making its determination of life or death a choice which it may make without any prerequisite findings of fact.

That is to say the ordinary procedures that we all know as lawyers, it ordinarily go on in courts of law.

Where a judge says to a jury if you find “x” then the result would be “y.”

Simply it doesn’t apply.

There are no required findings of fact.

The jury need not find that the defendant use the weapon or permanently injured the victim or that he had a prior record or any such thing.

Any and every offense of rape may be punished by death nor required findings of fact.

Not only are there no specific required findings of fact in the nature of aggravating circumstances in that sort of thing.

There are no general findings of fact put to the jury.

The question is not asked would society be safe if this man were incarcerated in the penitentiary for life.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: We’ll recess now Mr. Amsterdam.

You may continue your argument.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you Mr. Chief Justice.

If I may, I would like to resume a brief description of the exact nature of the discretion that the Arkansas jury has in capital sentencing.

As I have said, there are no prerequisite factual findings to return a death verdict.

The jury may need to find nothing specific in aggravation.

Of the sort that for example the European Codes used that the offense was committed with the weapon or that the defendant had a prior conviction of a similar offense or any such thing.

There are -- is no general required finding of fact such as that the defendant is unreformable or recidivist or incurable or any such thing.

There are no preclusive findings of fact that is findings which will exclude the death penalty.

The jury is not told if you find that the defendant was suffering a mental disease or defect which rendered him unstable or that the defendant has no prior record or that the victim did not use a great degree of force and resistance or that the defendant did not use the weapon you may not sentence to death.

And there are similarly no general preclusive findings of the nature of emotional disorder or any such thing.

There is no direction to the jury that it shall take consideration of any particular range or realm of fact.

The jury is not told in deciding whether the sentence to defend into life or death you shall take into account whether the defendant used the weapon or whether the victim was previously chased or the character of the defendant or any of those things.

There’s not even an authorization which would direct their attention to some things you may take account of such and such and the jury is not told that there are things they may not take account of.

You may not take account of race.

You may not take account of anything that the legislature thinks irrelevant to its purposes in enacting the death penalty.

There are no principles for judgments.

No standards for judgments given to the jury at all.

Not even a kind of vague standard that is the minimum we use in any kind of other judicial proceedings such as reasonable man.

It’s sometimes easy to forget how much the reasonable man standard does direct the jury in a civil damage case.

At least the jury knows that the defendant’s obligation is to exercise reasonable care, the care that the reasonable man would exercise toward the plaintiff.

Our whole law assumes that that has significance.

It’s different from the duty the defendant owes to a trespasser to exercise somewhat less care that he might owe to someone who he has special duty to care for.

The jury in the civil case isn’t told that they may return a verdict against the defendant if they don’t like him or if there’s something offensive about him or any such thing.

The issue is framed.

He owes a duty of care.

How much care?

The care that a reasonable man would exercise.

There’s no such thing in the capital sentencing discretion.

Unknown Speaker: Are there any more standards given to a judge if he does the sentencing normally?

Mr. Anthony G. Amsterdam: Is your asking of capital sentencing or regular sentencing?

Unknown Speaker: Neither one.

Mr. Anthony G. Amsterdam: In capital sentencing, ordinarily there are no greater standards given.

In non-capital sentencing, there may or not be but even if there are no standards given, explicitly by statute, the kind of discretion he exercises is very different than that which a jury exercises in sentencing to death for a number of reasons.

One is that the judges are professional sentencer and although we certainly make no attack on the jury system as such we think that we need not get any or near attacking the jury as an administrator of rules.

It is very clear that a professional sentencer is better at formulating rules adjudication by adjudication than in ad hoc where people in my point --

Unknown Speaker: This point rests on your faith in a profession rather the state having furnished any statement?

Mr. Anthony G. Amsterdam: There are number or relevant points in nine capital sentencing, apart from the professional quality of the judge, professionalism Your Honor is a number of things all wrapped into one.

When the fact that the judge sentences a number of cases involved some consistency, he is the man that does at each time if only the consistency of his habit, there’s a consistency there.

Unknown Speaker: But all the statement -- the states contribution to it is furnishing the professionalize I take it rather than furnishing the standard?

Mr. Anthony G. Amsterdam: I think that’s right except in so far as certain standards are built-in to the assumptions of the system which are not built-in to capital sentencing such as rehabilitation.

When a judge sentences, he knows that the man whom he is going to sentence is going to come out after a period of time.

And he has to make a judgment as to whether the period is so severe that the man is going to be a serious danger from rehabilitative standpoint.

Afterwards, it’s not true of the capital sentencing decision.

It’s also true that --

Unknown Speaker: Well, are there any -- are there any -- do you know of any statutes that direct the judge specifically to take rehabilitation into account?

Mr. Anthony G. Amsterdam: You know our statutes that do, do that in some states but the model sentencing --

Unknown Speaker: Not great normal, isn’t it?

Mr. Anthony G. Amsterdam: No, it is not.

It is not indeed.

On the other hand, the judge inevitably is going to do so and the development in evolution of sentencing counsels, appellate review in some greater or lesser form affects --

Justice Byron R. White: This recent practice and the accumulation of this from experience.

Mr. Anthony G. Amsterdam: A practice that is possible because the state provides an institutional nexus for it.

Both the professional sentence or in the assumptions of the system, neither which are true in capital sentencing, Mr. Justice White.

Unknown Speaker: What would you say about the statute Mr. Amsterdam that is called the mandatory death sentence?

Mr. Anthony G. Amsterdam: A mandatory death sentence it would have none of the problems that this case raises Your Honor.

I would have troubles depending on the nature of the statute under other constitutional provision but none that are involved in this case.

Unknown Speaker: Now, I realize that.

There are no standards that I am trying to involve there, except the legislative judgment in this particular crime without more carried in the legislative point of view against them.

Mr. Anthony G. Amsterdam: Your Honor, that is the standard though.

If everyone who is convicted of a given crime is sentence to death, you don’t have what we are complaining about in this case in individualizing process which selects without where more reason, one person to die and the other person to live.

A jury sitting in one case determining not perhaps because it takes a different view of the facts of this case than the facts of another case but because it may take a totally different view of the legal determiners that may find that it need not to have legal determiners.

It may sentence one man to live and another to die.

Now that is the essence of the standards of this complaint that we make.

And it does not involve where you have mandatory capital sentencing because every one in the class is treated identical.

Unknown Speaker: Mr. Amsterdam, there is a rule for which you are contending here confined to capital cases, now there are in some states or procedures by which a non-capital cases juries fix the penalty and they have a range of discretion as a constitutional rule for which you are here contending such as to --- such that it would follow that standards would have to be proscribed in such cases.

Mr. Anthony G. Amsterdam: Our contention is limited to capital cases and the justification for us so limiting it is -- it lies in three things I think.

First, this Court has made clear for considerable period of time that the degree of arbitrariness, it is permissible in a sentencing system is less where the penalty is grave where I speak of Skinner and Oklahoma.

Now Skinner held that you couldn’t sterilize thieves if you didn’t sterilize embezzlements.

I think that nobody on the unanimous court have decided that case assume that indeed the opinions of the contrary that you couldn’t sentence embezzlers to 15 years and certain thieves to 10.

At that level of discrimination or determination, there’s no question about distinguishing between embezzlers and thieves.

When you sterilize them or when you kill them, that’s something else again.

The second consideration I think is that and this goes to Mr. Justice White’s point as well.

That when you are dealing with a non-capital sentencing regime, there are number of considerations that come into play that justify more arbitrary individualize judgments than when you’re dealing with a capital sentencing regime.

Non-capital sentencing inevitably involves in some point the question of reformation and the only tools with which we as a society at the moment come to grips with the question of reformation are the highly individualize diagnostic judgment that are made of particular individuals.

Now I myself have very serious troubles with the infusion of therapy in the sentencing because sentencing becomes a mixed bag of individual I supposedly helpful therapeutic considerations and penal judgments but the question is to what kind of standards to imply on that process is much a little more like the question involved in the McGautha case as to how much you can justify some arbitrariness in the imposition of penal sanctions in order to serve therapeutic ends which require extreme flexibility.

In capital sentencing, there is no therapeutic need and no therapeutic justification.

The death penalty is the one penalty of which one can say cannot be justified for purposes of reformation or rehabilitation.

It is a writing off of this human preacher as fit for rehabilitation and no individualize judgments of the sort that need to be made diagnostically enter into the judgment.

So that there’s no excuse for the degree of individualization without rules of law in capital sentencing that there is non-capital sentencing.

Unknown Speaker: I want to be sure I understand you.

Are you saying that in your view, a Constitution presents no barrier to a state system under which for example the jury might be given discretion to impose a sentence of one -- in between one year and 100 years?

Mr. Anthony G. Amsterdam: Your Honor, I’m simply saying that this case doesn’t present that question.

My personal view is that there is a grave constitutional deficiency in such a system.

Unknown Speaker: That’s what in order to find out.

I know this case doesn’t present quite that but I take it that the theory that you’re advocating here might extend to that and by the same token, I suppose it would extend to something like the California Adult Authority procedure, that is to say that at the same problems as to whether that procedure might be defective for the lack of standing.

Mr. Anthony G. Amsterdam: I think that a great deal depends on several things.

What decision is being made?

The importance of the decision, a life and death quality decision is in my judgment unique.

Who is making the decision?

I think there’s a difference between the judge and the jury.

I think that the (Inaudible) case which requires certain standards for jury action may not mean that a judge has sub-standards in taxing costs.

I think that the parameters, the outer boundaries of judgment are very important.

If I may let me try to frame this issue in terms of one that is more familiar to this court’s jurisprudence historically.

The question that is raise as I see by our standards attack is in not a typical question of how you limit discretion and keep it within constitutional confines.

If you take for example a legislature that wants to regulate parades in the state it could simply pass a permit statute that says no one may conduct a procession without the permit from the chief of police.

Now that would raise the greatest constitutional difficulties under the decisions of this Court.

Now if it wanted to enact to one that delimited the discretion how might it go about it.

There are whole host of ways in which it might go about it.

One it might say whoever conducts a procession with vehicles or a procession on the streets or a procession on Pennsylvania Avenue between 14th Street and the capital that delimits the range of cases within which the judgment is being made.

Secondly, it might say that in determining whether a permit shall issue the chief of police shall take account of traffic congestion, the movement of emergency vehicles, simply whether there is another parade or procession the same day and that sort of thing.

Third, it might subject the judgment of the permit issuer to review by another agency by a court.

Now each one of this without getting rid of discretion totally delimits the discretion and again it would make a considerable difference whether the permit is totally unavailable or whether the permit issuer only had the power to put it off for a day set it some time within the week but not in a particular day requested and that sort of thing.

Unknown Speaker: Well, unhappily your last discussion suggest the possibility that you might have two questions.

One the immediate question or standards necessary and the other the next question, the next -- when the next ball game is played which is are these particular standards appropriate or adequate?

Mr. Anthony G. Amsterdam: Precisely and what -- where I think we are in this case is where this Court was in 1930 when they first began to enact permit ordinances.

It simply has to say whether an Arkansas procedure which has available to it, all of the different devices by which they might control the discretion limiting the range of cases to which it applies providing for aggravating circumstances and prerequisite findings of fact precluding the death penalty when certain mitigating findings are made.

Establishing rules or principles or even just telling the jury so that they have something to talk about when they go back there and they all have to agree that you must come to a decision consonant with some certain principle.

Unknown Speaker: And just so there won’t be any misunderstanding again as far as I’m concerned with respect to judge sentencing, are you saying that as a matter of your understanding of the Constitution of the United States, it is not necessary that the standards be proscribe to guide the judge for the reasons that you are so well stated here in deciding whether he will impose a death sentence or something less?

Mr. Anthony G. Amsterdam: I am not saying that the Constitution does not require standards to be judge.

I’m --

Unknown Speaker: Would you say--

Mr. Anthony G. Amsterdam: Saying only that this case does not raise it.

Unknown Speaker: That’s what I wanted to be clear on now.

Finally and this is my last question of you.

What we have been discussing in this colloquy would apply more or less to the same to your second point namely the need for unitary.

Your objection to a unitary trial, is that correct?

Mr. Anthony G. Amsterdam: That is correct.

Justice Potter Stewart: You, in answer to Mr. Justice Fortas’ initial question in this series about distinguishing a capital sentence from an ordinary sentence and you said there were three distinctions you got as far as to the Skinner against Oklahoma distinction and the absence of any therapeutic possible arguable therapeutic purpose and a capital sentence follows the third.

Mr. Anthony G. Amsterdam: Thank you Mr. Justice Stewart, I -- the third is more limited to Arkansas and to this case and it is that the Arkansas Supreme Court does review sentences imposed by juries in non-capital cases and it does not in capital cases.

And as I was trying to sketch out, it makes for me a great deal of difference whether the discretion is limited by a review or whether it is not.

That’s one of the factors that makes the discretion given juries in death cases totally arbitrary with no restraint, no protection against us.

Now, I’m not passing at this point beyond the standards argument.

I launch to offend this and the court simply of describing the standard was trial.

I’d like to finish if I may my description of the trial process and then state briefly the two constitutional contentions that emerge from it.

The Arkansas jury not only makes the guilt and penalty determinations but make some at one sitting if the defendant contests guilt.

All the evidence be it on all questions is submitted at once.

The jury goes out and returns a verdict both on guilt and on punishment.

Now, the effect of this, the most immediate effect of this is fairly obvious.

If the defendant takes the stand to speak to have his voice heard by the people of the power of life and death decision over him, he runs into all of the prejudices that the privilege against self-incrimination is intended to protect him against.

First, if he takes the stand and doesn’t claim innocence he is going to be convicted.

There is just no doubt that the jury will convict him when he gets on the stand, testifies and doesn’t say, I didn’t do it.

If he gets on the stand and he does testify that he didn’t do it.

Be subject to cross-examination which is clearly potentially incriminating.

In addition to that under Arkansas procedure, he is subjected to impeachment of the most vicious sort.

Literally, every bad act however remote and whether reduced to conviction or not can come in against them with inevitable prejudice on the guilt determination.

On the other hand, --

Unknown Speaker: You mean every act throughout his life?

Mr. Anthony G. Amsterdam: There is only one limitation that I know of Your Honor.

There are couple of Arkansas cases that say that a bad act which is too remote may not be proved but the Arkansas Court has admitted for example a minor liquor violation, 20 years old and an automobile accident, 24 years old those sorts of things.

So, I think the remoteness requirement is insignificant and the practical fact of the matter is that however prejudicial, for example we have cited in our brief.

Cases in which the man on in trial for murder who took the stand was impeached by showing that he had committed a prior murder.

It’s relevance to credibility is questionable but it’s prejudiced on the guilt issue as obvious.

Now this is the kind of thing for which he let’s himself in if he takes the stand.

On the other hand, if he doesn’t take the stand, he literally goes to slaughter like a dumb beast.

He is deprived of his best witness on facts and mitigation.

He is the only person who can tell about his motivation particular circumstances that may have let out to the act for which he subsequently convicted which may convince the jury in its totally unfettered discretion not to sentence him to death.

He is the best witness on background facts.

Facts about his childhood, his upbringing that jury may take into account.

More than that, his testimony is the only thing that can bring home to the jury that they are sentencing a human being, a live human being who may have heard speak like other human beings and lies the characteristic of speech that human beings have.

They are sentencing such a person to death.

And what happens in a case like William Maxwell is that if a defendant decides that he is going to exercise his privilege against self-incrimination and not take the stand and not be subject to impeachment.

And not proved guilt out of his own mouth.

He goes to life or death decision without the jury’s ever having heard a word uttered by him.

Unknown Speaker: Mr. Amsterdam, you stated earlier in your argument that in Arkansas, as I suppose in other states the statutory offense of rape covers can cover a very wide spectrum actually of human conduct.

As far as I can see, we don’t have anything of the facts of this case.

We don’t have the trial transcript.

We don’t have any description what the actual conduct was here and I suppose that the theory of Arkansas might be wrongly as that the jury’s discretion is to be exercised in a light of what they here from the witness stand as to the particular circumstances constituting this particular statutory violation and that we don’t adhere at all.

I wondered if it is available.

Mr. Anthony G. Amsterdam: I would say the facts are described in the Arkansas Supreme Court’s opinion in 370 S.W.2nd and I think this Court could notice the facts described in it.

Unknown Speaker: We don’t have a transcript of the trial of this?

Mr. Anthony G. Amsterdam: The trial transcript Your Honor is not in this record and there is a recitation of the facts as fairly complete by the Arkansas Supreme Court on Appeal.

As to Arkansas is taking any position to the jury thus indeed rely on those facts, the answer is we simply don’t know.

Unknown Speaker: We’ll I suppose that --

Mr. Anthony G. Amsterdam: It’s not required.

Unknown Speaker: Well, a jury hears the case for the prosecution on the issue of innocence or guilt and I say that you rightly point out that’s about all here.

And so I suppose the theory must be that it’s so to exercise its sentencing discretion based upon where it’s heard from the witness stand with respect to circumstance of this statutory violation.

Mr. Anthony G. Amsterdam: I suppose that might be.

The proof doesn’t seem to meet the theory because the evidence that we have gathered indicates that there are three factors which distinguish people who are sentenced to death from people who are sentence to life generally in Arkansas race.

The commission of the contemporaneous offense, some other offense like robbery which Maxwell did not commit and a prior record imprisonment and we do not know whether Maxwell has any such prior record in imprisonment on this record.

It may well be --

Unknown Speaker: Well, do we know -- did we know from the trial record?

Mr. Anthony G. Amsterdam: We would not know from the trial record Maxwell.

Unknown Speaker: He did not take the stand?

Mr. Anthony G. Amsterdam: By exercising the privilege avoided going into the question of background at all with the result and this is not a typical that a defendant who claims the privilege has the jury decide whether or not he should leave based on five minutes of his life or 10 minutes of his life.

All they know about this man is what they have heard that he did in the few minutes constituting the crime.

No more than that is known.

Now, whether or not the theory of Arkansas is that they act on that.

Our theory is that they need not act on that under Arkansas law.

Arkansas law allows the jury to act on something broader than that if it is present, but the defending can present it only at the cause of waiving his federal constitutional privilege against self-incrimination.

Justice Potter Stewart: Is the trial transcript, I think I saw somewhere in the briefs that this, the trial transcript was available in the United States District Court and the Federal Court of Appeals.

Mr. Anthony G. Amsterdam: Mr. Justice Stewart, the status of the trial transcript in this case is very confused.

Let me state it briefly as best as I can.

The pretrial order of the federal district judge in this case provided that the transcript would be available and that portions of it might be put in to the record by counsel if they wish.

No portions were formally put into the record.

On the other hand, the trial transcript had been around in the district court for a long while.

This being Maxwell second habeas corpus petition and the district judge in fact relied on it in some part although none of it was formally introduced for some of his findings such as a finding that Maxwell did not take the stand.

The transcript because it was not in the record in the district court did not go up to the Eighth Circuit.

Shortly before the decision by the Court of Appeals for the Eighth Circuit, the clerk of that court wrote counsel asking the copy of the trial transcript be furnished and the Court of Appeals also relied on certain aspects of it such as portions of the opening argument by defense counsel in that sort of thing.

Again, formally it’s not here.

I do not think that the transcript is in fact before this Court.

It is not physically here but I do not think that it is in fact here.

However, certainly, those facts which appear in the opinions below or in the opinion of the Arkansas Supreme Court might properly be relied on by this Court.

Unknown Speaker: I suppose it’s a public record that which we could take.

Mr. Anthony G. Amsterdam: Oh yes and I don’t think there’s – indeed, we've going to the point of actually in our appendix say according portion of it none otherwise because they think it’s non-controversial and it is a public record of course.

Unknown Speaker: And it’s now lodge so far as you know with the Eighth Circuit Court of Appeals?

Mr. Anthony G. Amsterdam: I don’t know when it’s technically lodged there.

It certainly was sent there and they do have a copy.

Now if I may briefly pass from what I had intended to be merely descriptive to the argument.

The standards question seems to be resolved by the briefing in this case into a relatively simple matter.

We contend that the power given Arkansas jury’s to sentence to life or death is legally arbitrary in violation in the rule of due process.

It offense we think every aspect of the rule of law that this Court has found previously in the due process clause.

First of all, it involves sentencing on a case by case basis by jurors who need not even discuss why they choose to send the man to death.

If they do discuss why and they decide on a common ground, there is no assurance that that ground is common to any other defendant but this defendant.

The man who was just tried and just convicted and just sentenced to life might have facts like identical with those of the defendant who now goes to death.

The only difference being that because Arkansas provides no help, the jury state different views neither of the facts but of the law.

A necessary consequence of that kind of arbitrariness and decision making is that people are unequally treated in violation of the notion basic we submit to both due process in equal protection that requires evenhanded administration of justice.

People treated similarly.

It doesn’t mean no individualization in sentencing.

But it means individualization on a rational basis not on a hit or miss flip basis that arises from having no standards whatever from making the sentencing decision.

It also means that not only are the people who are sentence to death treated unevenly, unequally as against those sentenced to life.

But they are treated irrationally, in the sense that there is no relationship, no assured connection between the purposes for having a death penalty at all and its imposition in this case.

There is nothing to assure that whatever Arkansas may want to achieve by allowing rapes to be punished by death.

That on the fact of this particular case with justification attaches.

Unknown Speaker: Do the Arkansas practice differ in many way from the practice in Federal Courts and the statutes the death penalty is permitted?

This apply the jury?

Mr. Anthony G. Amsterdam: It is not Your Honor.

Unknown Speaker: There is not difference.

Mr. Anthony G. Amsterdam: Well, it depends.

Now, again the federal statute is somewhat different.

Some of them give the judge sentencing power or just give the jury sentencing power.

Unknown Speaker: Are those not like the kidnapping or (Inaudible)?

Mr. Anthony G. Amsterdam: As to the federal statutes that give the jury sentencing power, they do it in the same that Arkansas does.

And that indeed is true.

I’m quick to admit of most jurisdictions.

Now there are differences in terms of there were degree of reviewability of the jury’s judgment, some jurisdictions provide that they jury must make the determination on the evidence of record but Arkansas does not.

There are also is about the minor differences but the major thrust of the Arkansas procedure is not use in the federal courts in jury sentencing and elsewhere.

Justice William J. Brennan: Well, almost everywhere (Inaudible)?

Mr. Anthony G. Amsterdam: Pardon me, Mr. Justice Brennan?

Justice William J. Brennan: Does the procedure anywhere differ materially from the Arkansas procedure?

Mr. Anthony G. Amsterdam: Well, in Illinois for example, the concurrence of the trial judge and the jury is necessary.

In Arkansas, the jury alone makes a decision and as I’ve indicated I think there are may be difference in response to Mr. Justice Fortas’ question.

There may be a difference if you have a judge sentencing.

There may not but there may --

Unknown Speaker: I’m addressing myself to those jurisdictions where the imposition of the death penalty is by the jury and the jury alone where it has a choice between the imposing death or fixing life.

Mr. Anthony G. Amsterdam: The only --

Unknown Speaker: I’m just wondering.

Is there any jurisdiction where the regime in that regard is substantially different from what it is in Arkansas as you described?

Mr. Anthony G. Amsterdam: No, I think, I think not except to the extent.

It does come to the interrelatedness of our two arguments where you have a split verdict procedure.

We have a two-trial procedure.

The effect may be different because the jury has a plenary penalty trial as more to basic judgment on.

But in specific response to Your Honor’s question, the answer is that they are equally without standards.

Frankly, what has happened simply is this.

The legislature had passed the buck all over.

We have mandatory capital sentencing for an off a long time.

And when that became politically impossible to maintain, instead of proceeding to determine in what case is the death penalty would be implied the legislatures all over simply said we can’t decide this so I’m going to pass it under the jury and they simply made it discretionary.

They did -- they are differing forms of substance of crime, differing procedures the notions of discretion is essentially common.

Now the -- a third, I think vitally important thing you recognize in the regime which is common and in practice in Arkansas is simply that the jury can get away with the most flagrant violations of clear constitutional rights without getting caught at.

One of the purposes of the rule of law of the requirement that procedures be regular systematically apply and applicable to all like cases is simply to prevent against abuse.

Now what we have in Arkansas and this is what I think is the relevance of the racial evidence on this record is a sentencing pattern of clear racial discrimination.

It couldn’t be caught said the District Court because the factors that go into the jury’s decision case by case are so intangible, so difficult to catch on to that you can’t prove that even a jury which even a set of juries of which convict Negroes of raping white victims and sentence them to death disproportionately frequently or in fact discriminate.

We don’t know.

They may be all sorts of intangible factors other than race that affects it.

The Eighth Circuit took the view that somewhat more hardheaded that probably juries are in fact discriminated generally.

But Maxwell’s theory probably didn’t discriminate.

Again, how do you know?

There’s no way.

The jury didn’t have to have any reason little on any specific reason for fixing the death penalty and so what happens under a regime of this sort is not only that the giving up of all political responsibility in the representatives of the people, legislature to fix standards of general application passing the buck in effect to individual juries.

But when individual juries react in a way which violates the most clear and unequivocal commands of the Constitution, a court can’t catch them out.

Now, our submission essentially is that such a regime violates a rule of law basic to do process.

That there is in here in the very notion of due process of law, the requirement of a rule of law which governs light cases and applies.

I think that this Court would not for example sustain an Arkansas sentencing procedure which provided that every man convicted of rape should roll a dice and if it came up 7 or 11, he would die.

And any other numbers, he would live.

Actually, what Arkansas has done is worst.

It’s worst because I assume that the dice would not discriminate on grounds of race and its worst because the 2 out of 12 chances that each man would have are at least identical.

We have not even that assurance.

And the argument is made by Arkansas and it’s made by California and everybody is being treated evenhandedly and equally under the sentencing procedure.

Unknown Speaker: Mr. Amsterdam, have you attempted to formulate a kind of standard that you think would be constitutionally acceptable?

I know it’s not involved in this case.

But it probably is the next step if you prevail here.

Mr. Anthony G. Amsterdam: I would be glad to address that.

There are several ways I think a legislature could go about it.

Unknown Speaker: Well, it have to be legislatives.

Suppose that it took the form of instructions by the judge.

Would that satisfy you or not?

Mr. Anthony G. Amsterdam: As far as the --

Unknown Speaker: Does it satisfy you or not?

I beg your pardon, I mean of course in terms of your or view of the constitutional requirement.

Mr. Anthony G. Amsterdam: As far as the federal constitution was concerned, it would satisfy our demands for a constitutional rule of law provided that the following conditions were met.

One, that the standards were announced by the highest court of the state or at least approved by it so that the same standards were now as by different trial judges in different cases.

Two, that the standards were made clear before the trial so that the defendant would have a fair opportunity to know what he was trying at the trial provided that those two conditions were met.

And that the standards themselves met the substantive requirements of definiteness for standards.

It wouldn’t matter whether they were done legislatively or judicially and I would think it’s a matter of state policy.

It would be quite improper for a court to promulgate this justice I as I was going to suggest, I’m troubled about suggesting specific standards to this Court because the individual standards that one designs are responsive to the most fundamental penological policy questions as to why you use the death penalty and when and that’s a matter of legislative.

Unknown Speaker: I understand that but so far as I’m concerned that’s a little difficult to think about your point in the abstract without having some fairly specific idea what kinds of standards or what kind or kinds of standards the federal constitution with regard as within the limit of constitutional toleration.

Mr. Anthony G. Amsterdam: Let me respond to that in two ways.

First, by saying that I have in mind something not terribly unlike the approach taken by the Model Penal Code although that’s not an exclusive approach and then although again I voice caution for two reasons.

First of all the Model Penal Codes description of the aggravating and mitigating circumstances and that sort of thing applies to murder and not rape and so it’s of no use particularly in drafting a rape statute and also because I have very grave trouble about certain of the specific formulations of the Model Penal Code.

For example, one of the aggravating circumstances that is it a crime is attrocious.

That troubles me.

I think that they could describe and get out what they want in terms of it being committed on a minor child or helpless person or being committed with considerable willful infliction of pain so that there are number of details about the Model Penal Code.

I might quarrel that the approach is a not insignificant model.

Now, second way to respond to that is to try to give you what I think of it some ways in which a legislature concerned with the crime of rape might put standards into a sentencing statute.

One way, they might go about it is in the manner I suggested in describing what Arkansas didn’t have.

You can have required factual findings, prerequisite factual findings.

You can consider them if you will aggravate in circumstances.

The jury may not impose the death penalty unless it finds that the defendant used a weapon that he injured the victim permanently in a physical way that he committed the offense on a victim of gravely disparate age.

One can enumerate half dozen by of course, it simply indicate that’s one approach.

Unknown Speaker: It would say the diffuculty that that raises I’m sure it’s obvious to you is that suppose a legislature says, “Oh, no, no, no Mr. Amsterdam, that’s not what we mean.

We mean any of the kind of rape.”

Mr. Anthony G. Amsterdam: Then --

Unknown Speaker: In other words, what you’re talking about is standards which in effect redefine the crime.

Mr. Anthony G. Amsterdam: Well, --

Unknown Speaker: I’m not talking about purely what shall I say things like pervasives due process standards such as that was done.

It was done in the course of the commission of another crime or even that get into the area.

But it it’s not like a reasonable man the example or pre-meditation or this more generalize things when you start talking about inflict the death penalty if the victim was of a disparate age.

What you’re really saying to the legislature no.

You may not impose the death penalty except for this kind of rape.

Mr. Anthony G. Amsterdam: No, I don’t think that’s necessarily so.

I have trouble in conceiving the matter that way for two reasons.

One, the Arkansas legislature hasn’t release any other kind of rape.

It said that that penalty is available for any other kind of rape but we don’t really expect that it will be impose of any other kind of rape.

It’s going to be imposed either wholly or arbitrarily or in some set of sub-classes and it’s made no attempt whatever to define those sub-classes but in addition to that this is only one of the ways in which a legislature might regularize the procedure.

If a legislature said that the governing issue was the atrocity of the crime.

At least that would allow the jury to consider that in focus as distinguished from the character of the defendant.

If the legislature said yes, any old kind of rape but the issue is how bad is the defendant?

Is he reformable?

Will the public safety be served adequately by imprisoning him for life instead of killing of him?

That would be a test the jury could apply which would focus in far more than we have the issue before the jury.

If I may, I’d like to simply state that the essence of our constitutional contention with regard to the single trial procedure is related but distinct from the attack on the standard was penalty trial related because as the factual description I’ve given you in the case.

Any defendant, who claims his privilege against self-incrimination necessarily goes to trial for his life in front of a jury which is totally uninformed, totally deprived of the requisites of information for rationally sensing it and therefore the arbitrariness which the standard list discretion allows.

Almost inevitably in fact is what occurs in sentencing the jury has no basis on which to sentence --

Unknown Speaker: The part of your submission that the states may not limit considerations encompassing to just a crime, are they constitutionally required to consider the possibilities of rehabilitation or the character?

Mr. Anthony G. Amsterdam: This case and our submission do not raise that question.

I think that other provisions of the Constitution and those we invoke here do require that.

But that’s no point of our submission here.

What we do say is this, that where a state authorizes each jury to take any view of the law and any view of the facts and sentence the defendant to life or death on any basis that if it then requires the defendant to forego the exercise of his privilege against self-incrimination as the cost of putting before the jury material on which rational sentencing decision can be based that he has so burdened the exercise of the privilege and so deprived of rationality the determination which is ultimately made by the jury of the defendant exercises his privilege that the due process, of course along with the Fifth Amendment --

Unknown Speaker: You know whether in Arkansas in non-capital cases there is a provision for pre-sentence reports?

Mr. Anthony G. Amsterdam: I do not know whether there is a provision for pre-sentence reports in non-capital cases.

I would assume that there was none.

I would assume so because non-capital sentencing is also done by jury in Arkansas in the ordinary procedure --

Unknown Speaker: But I take it in those cases, the judge does sometimes participate in the sentencing?

Mr. Anthony G. Amsterdam: I would assume.

If I may, --

Unknown Speaker: Excuse me.

I’m sorry.

I was asking question.

What under Arkansas law our counsel permitted to argue to the jury in their closing argument with respect to the imposition of the death sentence or not.

Mr. Anthony G. Amsterdam: Counsel are permitted to argue to the jury, yes.

And both counsels may argue to the jury with regard to the death sentences.

Justice Potter Stewart: As --

Mr. Anthony G. Amsterdam: Of course, the difference is that prosecution is also of good things to argue from, his got the crime and defense counsel if the defendant exercised the privileges nothing argued.

Justice Potter Stewart: I remember a case that came here from Ohio back in the 1920s in which I remember it because my father was counsel for the petitioner of the case when I was a little boy in which Ohio which has somewhat similar system to Arkansas but this was for first-degree murder had not allowed the counsel for the defendant to even argue to the jury that they should extend or recommend mercy as that states has and that decision was either affirmed or certiorari was denied here.

I’ve forgotten which but I wondered if in the case law of Arkansas if some of the standards have not been evolved in deciding what is permissible to be argued to the jury with respect to the imposition of penalty in the capital case.

Mr. Anthony G. Amsterdam: Mr. Justice Stewart, my statement that counsel are permitted to argue to the jury arises from my observation of reading a transcripts in Arkansas death cases.

There is no decision of the Arkansas Supreme Court which specifically talks about counsel arguing to the jury at all.

Let alone defines what arguments are proper and what arguments are not.

One can find nothing in Arkansas case law that is instructive about standards that stems from the argument.

I simply state from observation that counsel are indeed permitted by the Trial Court to argue the penalty issue of the jury although as Your Honor suggests in other states not even that is permitted, the discretion is suppose to be so arcained a matter that it emerges services and works its doings only in the jury room.

That’s not so in Arkansas.

If I may --

Justice Potter Stewart: So far as it appears, they can argue anything?

They could argue anything I suppose.

Mr. Anthony G. Amsterdam: So far as I know, there is no -- there has been no reported decision challenging a prosecutor’s argument or sustaining a defense counsel’s argument or whatever but the discretion is absolute and one would assume that if the discretion is absolute that absolutely anything may be argued.

Unknown Speaker: Right.

Unknown Speaker: If I may just add to one question.

Getting back to your colloquy with Justice White, I know that your position that this question isn’t here in this case.

But suppose we had a legislature say in a trial for the crime of rape.

The Court shall instruct the jury that the death penalty may be imposed if the jury is of the view that death is a punishment that should be imposed for the crime committed by this defendant.

That’s all the statute says.

Would that standard be unconstitutional?

Mr. Anthony G. Amsterdam: No, but it would be better than Arkansas because at least the focus is on the crime.

Unknown Speaker: Because looking at the facts as you referred to.

You referred this to the Supreme Court opinion.

I would suspect that on these facts that if there was that kind of instruction required that the facts of this particular crime perhaps would have brought the death penalty.

Mr. Anthony G. Amsterdam: Oh, I must therefore Your Honor.

I think that’s not so every rape crime is a serious crime there’s no doubt about it.

Unknown Speaker: I know, but this one -- this one dragging her out of the house, taking her two blocks away, beating her father, beating her, cutting her up?

Mr. Anthony G. Amsterdam: Well, cutting her up, she suffered some cuts and bruises.

You -- no.

Your Honor, must remember, what we are talking about is a state in which we have intra-racial crimes, 14% of the cases get out.

Now, one asks you know just guessing whether this isn’t the most serious 14% of the cases.

I would say, having seen a lot this cases that in my judgment at least that it is not but that is a judgment in any event that I leave to Your Honor.

However, the important thing is the jury doesn’t think about that.

Jury doesn’t have to care whether this is atrocious not atrocious, heinous, where the victim was injured where, the cuts were accidental, how long they lasted, whether they were cured, any of those things.

None of that’s relevant.

The jury does goes out and decides.

But maybe they don’t like to follow the defendant.

May sense some, yes.

Justice Thurgood Marshall: I don’t know whether they count this or not.

What’s your position of the appeal of the statute and give the judge the right to sentence again.

Without more, no standards and no everything, in Arkansas?

Mr. Anthony G. Amsterdam: My position would be that something which simply gave a judge the power to do the same arbitrate test the jury is now doing would not be constitutional.

Justice Thurgood Marshall: But that’s not question.

Mr. Anthony G. Amsterdam: I’m sorry.

Justice Thurgood Marshall: My question was, if they repealed the statute and reenact the statute which says that the judge has the sole right to sentence in rape cases or any other case, period?

Mr. Anthony G. Amsterdam: If they did that?

Justice Thurgood Marshall: Could have been.

Mr. Anthony G. Amsterdam: Yes.

Justice Thurgood Marshall: Why?

Mr. Anthony G. Amsterdam: Well, although it’s worst to give a jury this kind of discretion, it seems to me that what one does when it passes it to the judge with no more than that is essentially to again permit a judge to make individual judgments case by case which need to have no relationship to the judgment pass in the next case.

Now there’s not quite as that in the jury because a judge --

Justice Thurgood Marshall: It would offset in many a criminal statute?

Now in existence or do you limit it to rape cases.

Mr. Anthony G. Amsterdam: I’m not sure I understand the question, Your Honor.

Justice Thurgood Marshall: Well, embezzlement.

The judge now sentences without any standards, right?

Mr. Anthony G. Amsterdam: Non-capital, yes, Your Honor.

Justice Thurgood Marshall: Yes, without any standards.

Mr. Anthony G. Amsterdam: That is correct.

Justice Thurgood Marshall: And that can run from zero to a hundred years.

Mr. Anthony G. Amsterdam: A hundred years in some offenses.

Justice Thurgood Marshall: Well, exactly, consecutive sentences.

Mr. Anthony G. Amsterdam: Oh, Yes, Your Honor certainly.

Justice Thurgood Marshall: Without any standards.

Mr. Anthony G. Amsterdam: Except those which are assumed within the preconditions of the judicial role or which emerged form the fact that it’s Mr. Justice White has put it, you have a professional sentencer subject to common aspirations, common experience --

Unknown Speaker: Those wouldn't be enought to say -- I think it's (Inaudible) in your view though.

Mr. Anthony G. Amsterdam: In my judgment, I would not although again I must refer the Court to a distinction that I think is crucial between capital and non-capital sentencing.

I think there are justifications for a more clinical case by case approach in non-capital sentencing that are not available in capital sentencing and I am clear from the decisions of this COurt that the degree of arbitrariness allowable is greater with the imposition is greater and the death penalty is the greatest known demand.

Justice Thurgood Marshall: You limit it to -- for this case you are perfectly right to limit that that face is?

Mr. Anthony G. Amsterdam: For this case, I have no intentions to go and step behind.

Justice Thurgood Marshall: Well I dont see why you should go further than that.

Mr. Anthony G. Amsterdam: I have very great difficulty with the whole regime of sentencing in the discretion that we had.

And so to a lot of other people but I need to know further in this case and death cases.

Unknown Speaker: It’s a great deal of the rational Mr. Amsterdam of the opinion in the Witherspoon case was based upon the very premise that a jury under our system, the system followed conventionally and most of the states is allowed to roam essentially at large in deciding whether or not to impose capital punishment and that therefore it became awfully important that the jury in so far as possible would be -- would represent the conscience of the community.

That premise is I say was at the base of it, largely at the base of what was decided in the Witherspoon case, isn’t that correct?

Mr. Anthony G. Amsterdam: It was not a constitutional assumption.

It was assumption as to what Illinois law required.

If a state, --

Unknown Speaker: Committed?

Mr. Anthony G. Amsterdam: The court said permits this kind of discretion then it cannot stuck the jury in exercising the discretion.

But I think the Court needed to make none and made none of the kind of assumption that is of the constitutional nature that only could do this.

The question was not raise in Witherspoon whether Illinois did do it.

It appear that Illinois had done it and the question was whether you can give the jury unfettered discretion and then skew people who exercise.

Unknown Speaker: In a jurisdiction where you have a diminished responsibility rule, if the diminished responsibility instruction as given in all capital cases, I don’t know whether this or not.

But if that is, would that take care of the requirement as you see it?

Mr. Anthony G. Amsterdam: No, although it would present a limitation in each question of diminished responsibility or narrower definition of the crime or whatever.

Now is the outer parameters if the discretion and therefore --

Unknown Speaker: I understand that but I was just wondering why that it wouldn’t satisfy a constitutional requirement by a sort of it’s backwards if you will.

But the finding circumstances are much less than the death penalty may be given.

Mr. Anthony G. Amsterdam: If it were put in as a limitation on the death penalty, as distinguished from a limitation on conviction.

It might do that but then again you fall into the problem of the single verdict trial.

We don’t know whether Maxwell has to diminish responsibility or anything else because it couldn’t present evidence on that without waiving the privilege.

Again, the interrelatedness of the two issues becomes apparent.

The diminished responsibility alone would solve neither of our two constitutional contentions separately or together.

Thank you.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Amsterdam, your time has expired but you may have five minutes to close if you will -- if you wish.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: I’d prefer to reserve it if I’m right for rebuttal.

I’ve gone a way and I would not take the --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: You don’t have anything to reserve but I said if you wanted to take five minutes in rebuttal, you might do it.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you very much.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: And of course, counsel may have five minutes to work also.

Mr. Harris.

Argument of Albert W. Harris, Jr.

Mr. Albert W. Harris, Jr.: Mr. Chief Justice, may it please the Court.

I’m here on behalf of the State of California as amicus curiae, in behalf of the respondent, and with the permission of the Attorney General of Arkansas speaking here particularly and exclusively with respect to the first question that is presented in this case.

California and Arkansas in this matter of sentencing procedures in capital cases share really only one common element and that is the element of living it to the jury to determine whether or not life sentence should be imposed instead of a death sentence without any standards, without any restrictions without as we put it in our instruction, in your absolute and sole discretion.

That’s the common element we share and that’s why we’re here and that’s why we’re concerned about this case.

Unknown Speaker: You have this hypothetical ground?

Mr. Albert W. Harris, Jr.: Yes, we do Your Honor.

We have a so-called bifurcated trial where the -- at the outset that jury returns the verdict on guilt and on guilt alone, and then usually a couple of weeks later, they start a penalty hearing.

Unknown Speaker: Same jury?

Mr. Albert W. Harris, Jr.: Normally it’s the same jury.

The trial judge has the authority to convene a new jury upon good cause shown.

But normally, it is the same jury.

Unknown Speaker: And the bifurcated part of it is required in every capital case, is that correct?

Mr. Albert W. Harris, Jr.: Yes, it is.

Unknown Speaker: There's no discretion to say in this case, we’re just going to have a single jury --

Unknown Speaker: Oh, no.

Unknown Speaker: In order to determine at the same time.

Mr. Albert W. Harris, Jr.: No, it has to be done in two stages in every case.

Unknown Speaker: How long has that been the law?

Mr. Albert W. Harris, Jr.: Well, it’s been the law as long as I can even concern about it.

I guess since -- it must be a good 15 years, maybe longer than that.

I really don’t know.

Unknown Speaker: Up to this time?

Unknown Speaker: Not longer than that?

Unknown Speaker: Up to that time what kind of trial do they have?

Mr. Albert W. Harris, Jr.: Pardon me, Your Honor?

Unknown Speaker: Up to that time, what kind of trial was it?

Mr. Albert W. Harris, Jr.: Well, we had a unitary trial as they do in Arkansas and --

Unknown Speaker: Do you have unitary trials for non-capital cases?

Mr. Albert W. Harris, Jr.: In California?

At the present time.

Unknown Speaker: Yes.

Mr. Albert W. Harris, Jr.: Yes, we do.

Unknown Speaker: And jury sentencing in any of them or not?

Mr. Albert W. Harris, Jr.: Very, very little jury sentencing.

It wasn’t a great a while.

Unknown Speaker: Okay.

Mr. Albert W. Harris, Jr.: But very little.

The --

Unknown Speaker: There have been objections to yours on the ground that it violated the principles of fundamental fairness until -- what do you think about that?

Mr. Albert W. Harris, Jr.: Well, that’s one of the reasons that we’re here Your Honor.

This issue was very thoroughly got into before the California Supreme Courts last year and this particular attack on the question of lack of standards was raised and resolved by the California Supreme Court in favor of the established practice.

So we submit that it is valid and unconstitutional for a jury to not to be restricted in determining whether the return of life sentence instead of a death sentence.

Unknown Speaker: Was that the original basis of the jury trial?

That they would act to that in their discretion.

Mr. Albert W. Harris, Jr.: Well, that’s right.

Unknown Speaker: Members of the community?

Mr. Albert W. Harris, Jr.: That’s correct.

Well, basically the, it seems to me the same rule is followed in Arkansas as far as the lack of any standards or any restrictions on the jury is concerned is precisely the same rule that this Court required in the Winston case some 70 years ago.

When you held that it was improper for a trial judge to give a standard to the jury and to say to them you should return a death sentence unless you find mitigating circumstances in this case.

Now you held that was not correct that the trial judge should leave it to the jury in their absolute discretion and not tilt the scale one way or the other.

Now that is precisely the case in California.

And the jury has told that in no uncertain terms and it’s my understanding that that is the case in Arkansas.

But I want to make it clear that on this question of the unitary trial, we do not express any view because we, in this guilt proceeding, meet the objections that are raised in terms of information being made available to the jury.

Both sides are free to put in evidence in mitigation or evidence in aggravation.

They’re both free to go into the background of the defendant and to go into anything that is relevant.

Of course it has to be competent evidence.

And it is very common to call psychiatrist.

The defendant may call a psychiatrist who says he’s examined the defendant and is familiar with criminal characters and is in his judgment this man can be rehabilitated.

Now, there’s all sorts of evidence and certainly all of the things that would go into judge sentencing on the basis of a probation report or a diagnostic reports in our non-capital cases.

So, I think as far as that objection is raised and of course it’s tied into the lack of standards, we meet that very well in California.

Now, I’m not so sure it’s a benefit to the defendant.

Certainly, the bifurcated trials enacted as a means of giving a jury the fullest information before past sentence.

And I think that’s a good idea.

To say with the benefits, the defendant is something else again because the defendant is stuck with his own record.

He made his life and if it hasn’t been a good one he’ll suffer for it in the penalty trial.

There’s no question about it.

And it can be very difficult for the defendant whether or not in the long run it’s better to bifurcate or whether it’s better and gives the defendant a better shot at it to let it all go in one trial, limit the jury to what’s admissible on the murder charge or rape charge or whatever is quite another question.

In any event, we recede on the bifurcated trial.

We also have some previsions for review which have been mentioned in the briefs particularly filed by the petitioner who argues that the Arkansas jury verdict is under review.

Unreviewable for all --

Unknown Speaker: Before you get to that, may I ask you whether at the end of the penalty trial, there are any instructions given by the judge and if so what they are?

Mr. Albert W. Harris, Jr.: Yes, Your Honor.

At the end of the penalty jury trial, the jury is instructed in a standard instruction that it is the duty of the jury to determine which of the penalty is either death sentence or life imprisonment should we impose.

I won’t read the whole thing but just basically, you should consider all of the evidence received here in court presented by the people and defendants throughout the trial before this jury.

And that would normally include all the evidence on the guilt face as well.

You may consider, may also consider all of the evidence of the circumstances surrounding a crime of the defendant’s background and history.

And of the facts in aggravation or mitigation of the penalty which has been received here in Court.

However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other.

It’s the law of the state that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life at the discretion of the jury.

And then they’re told they have to indicate in their verdict which of the two either death as its put here or life they prefer.

And then they’re told there’s notwithstanding facts if any proved in mitigation or aggravation.

In determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, and absolute discretion.

That verdict must express the individual opinion of each juror.

Beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury and the selection of the penalty but rather commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury.

And the determination of that matter if the jury does agree, it must be anonymous as to which of the two penalties is imposed.

Unknown Speaker: Is that in your brief or is it instruction in your brief?

Mr. Albert W. Harris, Jr.: I don’t --it certainly not set forth in full Your Honor.

It may be referred to.

Unknown Speaker: Could that be left filed with this please.

Mr. Albert W. Harris, Jr.: I’d be very happy to do them.

There are some other instructions that come in for example at California Supreme Court had a great problem over the last few years about arguments that while this man if he give him a life sentence might be paroled after seven years and go back and commit another crime and we have a special instruction now that covers that face, what a life sentence means.

Unknown Speaker: What is it?

Mr. Albert W. Harris, Jr.: Pardon me?

Unknown Speaker: What gives the special instruction on that subject?

Mr. Albert W. Harris, Jr.: Well, that’s -- see, it's quite a long one Your Honor --

Unknown Speaker: I mean there’s a substitute or something?

Mr. Albert W. Harris, Jr.: What it is basically is that the jury is told that a life sentence means that he may be paroled at some time.

But that it’s up to the adult authority to determine that’s a separate agency in California to determine when if ever he is released and in general, you’re not suppose to be concerned about that anyhow.

They’ll do their job.

Properly, you do your job properly.

That’s the gist of it.

That he can be paroled but they shouldn’t enter into your considerations as yours.

I -- we submit that the California procedure and I think it’s basically the same on its element of lack of standards was adopted originally to benefit the defendant -- defendants in capital cases and its easier to say that the legislature passed the buck that it didn’t want to decide the hard question of who should be executed and who shouldn’t be.

But I don’t think that was the basis for it.

I think the basis for it was in the experience of all of us who know anything about capital cases that is impossible, at least I think its impossible to set out in advance those considerations exclusively.

New cases come along.

New situations developed.

Some of the considerations are those referred to human qualities and emotions that we can’t reduced to a formula.

Unknown Speaker: Well, it’s because of that that I confess a little surprise that you are fairly willing to accept identification of your procedure on this point with that of Arkansas.

The word standard is a word of great difficulty and I think that whether the absence of standards has reaches constitutional proportion is a question that may appear quite differently in the context of Arkansas procedure on the one hand and the context of California’s on the other because it’s at least arguable.

I should think that under the California procedure, whether or not you say there are standards, the jury’s attention in the second penalty trial is specifically focused upon the qualitative judgments that I suppose or at least arguably relevant to the kind of penalty that ought to be imposed whereas in the Arkansas procedure as I understand it that this moment that does not happen therefore the two systems in this respect are not necessary properly equated even before the application of constitutional concepts.

Mr. Albert W. Harris, Jr.: Well I certainly didn’t mean Your Honor to convey the impression that the two systems are the same or that if one falls, the other must inevitably fall but we, and we do not identify our system with Arkansas.

In fact, I have attempted to point out here some of the differentiating factors.

But in -- when you go pin it right down to the question of lack of standards and isolate that I think we are in the same footing.

Now, it may be that there are other aspects of the procedure which would say that even if the Court felt there was some defect in the Arkansas procedure.

We certainly hope to the Court would recognize the national impact of its rulings and that’s one of the reasons that we wanted to present our position here and that our State Supreme Court has just resolve these questions squarely and upheld the absence of the standards.

Unknown Speaker: How did the courts quit on that, I forgot?

Mr. Albert W. Harris, Jr.: It was four to three, Your Honor.

There is one other face of the differentiation in our system.

Your Honor, after the jury comes to its verdict the trial judge has a power to an emotion for new trial to review all of the evidence, everything in the case.

And determine in his discretion, death sentence having been returned by the jury whether the sentence should be life instead of a death sentence.

He can’t of course go up to death if the jury returns life.

But he can in effect reduce the sentence and that does not have to be because of some error but because of his appraisal of the -- all of the evidence in the case.

Unknown Speaker: Is it your understanding that that is the same in Arkansas or is it different?

Mr. Albert W. Harris, Jr.: No, it was my -- well, in my understanding Your Honor is that it is different but I’m certainly not, I have to rely pretty much on what’s been said by the parties.

I’m not qualified to speak on that.

I don’t think they have that power.

They may have.

We certainly have the power.

It is true that the on appellate review, the Supreme Court of California and that’s where all death penalty cases go in California.

There’s no other review and its automatic in all death cases.

Unknown Speaker: I’m sure the judge in Arkansas must have a power to set aside a judgment.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Well, I’m sure he would for --

Unknown Speaker: Under the old theory is, you think it’s so outrageous at all that you want to do so.

I may be and I don’t know?

Do you know?

Mr. Albert W. Harris, Jr.: I wouldn’t want to -- I certainly wouldn’t want to act as if I were an authority Your Honor.

I just don’t know.

Let me put it that way.

I do know that it’s done in California and it doesn’t have to be done for error.

We done simply because the judge in his judgment, but again would no more standards of the jury had to start with things that a life sentence should be imposed.

In addition, there is still a further review and I think it’s important to make sure that there is no that this is not an arbitrary decision passed in a vacuum or something.

There is a review by the trial judge.

There is a review by the state Supreme Court, none of the question of whether it should be a death sentence or a life sentence.

But on the question of any error that may have occurred during the penalty trial and the least error, will the Court reverse it.

Unknown Speaker: The Supreme Court can raise the law of the sentence?

Mr. Albert W. Harris, Jr.: No.

No, they can review the record Your Honor, for error in the penalty trial.

Unknown Speaker: But they can’t just decide?

Mr. Albert W. Harris, Jr.: That’s the view, it’s -- we have one justice now who is of the view that they can in a death case but the established law in California is that they cannot.

Unknown Speaker: There are six under the sentence.

Mr. Albert W. Harris, Jr.: I think it was six, yes.

Now those are some of the things but if I could come back to this basic idea, it seems to me its base on two things.

One is the, as I said, it’s so difficult to attempt to formulate in advance this considerations.

And the result is that a case comes along where you -- where everybody involved feels that the death sentence should not be imposed.

But it may not fall within some predetermined categories.

And when you get into things like pity and sympathy and kindness and compassion, how you can reduce that to any kind of a standard and the due process sense of the statute defining conduct?

I don’t understand in the petitioners haven’t told us.

Again in California, for example the jury is told in the guilt case of the case, any of those two, any case.

You can’t take into account any pity or sympathy you might feel for this defendant no matter how down and obvious you have to decide the facts.

Is he guilty of murder whatever might be robbery, you have to put pity and sympathy out of your mind.

Now, if you’re trying a capital case and they’re given that instruction of a guilt plea then you have to correct that impression in the penalty face because they can’t properly be guided by such things in determining penalty in sentencing just like a trial judge can be take consideration or take these things into consideration.

And unless it’s the position of the appellant, petitioner here, that pity and kindness and compassion should be excluded from the sentencing process and indeed must be excluded as a matter of constitutional law and it seems to me that he can’t prevail.

The Model Code certainly says nothing as I recall about kindness or compassion.

No states to my knowledge has ever enacted standards of a kind that are suggested here, the ones that a Model Penal Code have been around for some time they have never been adopted by anybody.

This discretionary sentencing in capital cases has been with us just like as I pointed out earlier was at the instance of this Court some 70 years ago that the federal courts commenced this procedure.

We’ve known about it, we haven’t been offended by it.

I think the results have been by enlarged, a vital large pretty good with undoubtedly they’re always arguable cases but no court has ever held that this is a constitutional defect in sentencing.

Only two years ago, this Court agreed to adhere to the decision in Williams against New York which in evaluating a sentencing procedures in New York in a capital case permitted the trial judge to consider matters in the probation report and other sources and it considered things that have not been testified to an open court so that in effect the defendant had no right to cross-examine.

The witnesses that -- and the information sources of information that the trial judge considered and in that case, the trial judge in the face of a recommendation of a life sentence by the jury after reviewing these matters that came to him not from the witness stand that by way of reports imposed the death sentence in his good judgment, again without any standards as far as I can tell and this Court affirmed it.

And two years ago, in Patterson -- Specht against Patterson, you said, you’ve given it some thought that you adhered to that decision in Williams against New York and it seems to me they -- that of course the issues are different in this case.

But that the sentencing procedure in Arkansas and the sentencing procedure in California and in the Federal Courts and everywhere in United States as far as I know that this aspect of the sentencing procedure does comport with due process of law and with equal protection of the laws.

The -- there is no problem here in my judgment of undue vagueness in the law.

Granted there are no standard specifically set forth but the definition of the crimes that calls for capital punishment, everywhere is very specific.

Certainly, it’s in Arkansas it is in California those crimes are set forth whatever they might be.

Whether in the first degree, rape, however the legislature wants to apply it.

And the fact that the defendant doesn’t know and indeed no one knows and no one in this room knows whether if he undertakes a murder in the first degree, a jury will ultimately return a death sentence or a life sentence as one of those risks that he has to take in this life.

He doesn’t know if Governor will grant him clemency.

He doesn’t know if the District Attorney and whatever county happens to be in throughout the United States will ask for a death sentence.

He doesn’t even know what the higher Courts may rule in some things that might happen to him in the course of this procedure.

Of course, he doesn’t know these things.

But he knows this if he commits a murder in the first degree.

He is subject to the death penalty.

Now giving the jury the discretion to return a life sentence was the humanitarian step this Court has recognized that and in determining guilt, and there has to be this prior determination of guilt before we ever get around this sentencing.

The defendant has the benefit of all of the constitutional protections.

We don’t see any unfairness in this situation.

We don’t see any uneven application of the law.

The same rule is applicable to everybody that goes before the jury.

Everybody who commits a murder in the first degree or rape in the State of Arkansas, they all have the same opportunity.

Be in fact they even have -- they have a better opportunity to seek a life sentence under the discretionary procedure than they would under any of these conceivable standards.

Here the whole thing is wide open.

Anything that a defense attorney can conceive of to say that might persuade a juror, mind you need a unanimous verdict in this cases.

Think of its one juror that there should be a life sentence why he’s accomplished the purpose and the only bounds are his own imagination and his own ingenuity.

Now again his status are going to limit that.

There is another point here too, I think and I forgot to mention that in our discussion earlier about the California Procedure that it is clear in California that you -- the trial judge can on requests advice the jury about factors that they might consider and references made to the Model Penal Code.

It would have to be made very clear to the jury that these were not controlling in any sense but if that were done, it would certainly, I think the jury could be told of those factors.

They can be told they can take kindness and so forth into account.

So we submit that the mere absence of standards does not in any way make the Arkansas procedure for that reason unconstitutional if there other objections that we don’t share with Arkansas in terms of procedure, I’m sure the Attorney General form Arkansas was prepared to deal with those.

I have just one closing remark, and that is I think that in light of your decision in Witherspoon wherein you recognize that under Illinois law the conscience of the community was focus on this man and what have you done.

And there was no guide given to the jury and you insisted that that jury should be fairly composed and that was undisputed about whether that one was but nevertheless it would have to be fairly composed to reflect the conscience of the community.

That rule in Illinois, in the absence of standards is essentially the same thing.

You have to face an Arkansas on the same thing that we have in California and it seems to me that having recognized that and having -- making sure as you have made sure that the jury must be a fair representation of the community because you are invoke in their conscience.

You're invoking their -- the qualities as I have referred to kindness, compassion, not simply an arid determination of facts but a real judgment in the -- and not on the legal sense but in the general sense.

The judgment of what should be done with this person.

Unknown Speaker: Mr. Harris how was the jury qualified at the trial of this case?

I don’t know because I haven’t seen the transcript.

Mr. Albert W. Harris, Jr.: Well, Your Honor, in our brief, amicus brief, we suggest that the Court should give some consideration to that very point.

The case was tried back in 1962.

We did not at that time have the transcripts.

We thought it was probably a good guess.

There might be a violation of it -- of the Witherspoon rule.

In the meantime and in fact yesterday morning -- excuse me.

I examined the transcript.

It’s right here.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Pardon me?

Unknown Speaker: I thought its -- I thought it was back in the Eighth Circuit.

Mr. Albert W. Harris, Jr.: Well, this is a copy, I dont know, it looks like the original to me but here it is.

And I took the opportunity to go over it.

And sure enough there are at least seven jurors about in this.

Unknown Speaker: Witherspoon?

Mr. Albert W. Harris, Jr.: Well, it hasn’t been raised Your Honor.

Hasn’t been raised apparently, any place.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Well you came down -- handed down a ruling in Witherspoon which --

Unknown Speaker: I guess it’s been --

Mr. Albert W. Harris, Jr.: This is federal habeas.

Unknown Speaker: This is federal habeas corpus.

Mr. Albert W. Harris, Jr.: I think you could.

I think you could.

I don’t want to --

Unknown Speaker: All that’s being attacked in this case is the sentence of death, it's -- am I right about that?

Not the convciton?

Mr. Albert W. Harris, Jr.: That’s my understanding.

That’s the sentence of death is being attacked and not the conviction, at least at this point.

Unknown Speaker: Well, does the record show --

Unknown Speaker: Well, I don’t want to make its between the State of Arkansas and the attorney for Mr. Maxwell but just been going over it, for example of it there was seven jurors perspective jurors who were excused on this ground that they were opposed capital punishment.

I think you have to look at each one of them and the first one -- this is about all there was in this as to the Mr. McCleary the first man to be excused.

He was asked to entertain any other conscientious scruples about imposing the death penalty.

He -- and he said, “Yes, I am afraid I do.”

And he was excused.

Unknown Speaker: (Inaudible)

Mr. Albert W. Harris, Jr.: Yes.

And then another one said, “I would not sentence the death penalty.”

That I suppose you might argue meant I wouldn’t in any case but it wasn’t spelled out.

There’s another one who said, “No sir, I don’t believe in capital punishment” and went off.

And as I say there are total of four -- a total of seven.

The last one said, “I am against capital punishment.”

I suppose there could be argument on each side as to whether or not this complied with Witherspoon but certainly arguable and it did not.

We think you could reach that.

We think that issue might very well be resolved in favor of the petitioner and that would save him from all that he seeks to get at this point and that is to save his life.

Having that issue, there’s no need that you go into this other question.

But we submit that if you do, we submit --

Unknown Speaker: What you’re saying is that the record shows in your judgment an indication that the Witherspoon would violate --

Mr. Albert W. Harris, Jr.: Yes, sir.

Unknown Speaker: And that I believe that Justice Douglas wrote an opinion several years ago in which he said, “This Court see no reason to send it back to go to a habeas corpus and then unnecessary habeas corpus when the record plainly shows here that some rules have been violated.

Mr. Albert W. Harris, Jr.: Well, of course you don’t have the transcript before you now but I’m sure you could secure it.

Unknown Speaker: That transcript was not --

Mr. Albert W. Harris, Jr.: It’s not part of the appendix, it’s here.

It’s on the table.

It’s not part of the appendix.

Unknown Speaker: It’s here.

Mr. Albert W. Harris, Jr.: It’s printed.

Yes, it is.

Unknown Speaker: Part of the record.

It was before the judges whose judgment we are -- had happen to that and was not part of it in the rule.

But I certainly was for the case in Justice Douglas rule.

We shouldn’t go through a vain and useless cert sending the case back all of the delay that would occur when direct of the matter is plainly before I will notice.

Mr. Albert W. Harris, Jr.: Yes, Your Honor.

Unknown Speaker: Is there any objection by either side to having this transcript before the Court?

Mr. Albert W. Harris, Jr.: We certainly have no objection.

Belongs to Arkansas.

Unknown Speaker: Sustained.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Amsterdam?

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: We have no objection in having the Court have the transcript before it.

I would like to speak in rebuttal as to the propriety of ruling on the witness per issue.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Oh, yes.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: We certainly have no objection on the transcript.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Very well then, if you’ll leave it with the Court, please.

Rebuttal of Albert W. Harris, Jr.

Mr. Albert W. Harris, Jr.: Thank you Mr. Chief Justice.

My time that we’ve been allotted has expired.

Thank you.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Langston.

Argument of Don Langston

Mr. Don Langston: May it please the Court.

I checked this transcript out of the Supreme Court Clerk’s Office in Arkansas last Friday with the specific purpose of bringing it here for your consideration.

And I will lodge it with the clerk but I do, whenever you’re finished with it I would like for him to return it.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: You would let?

Rebuttal of Don Langston

Mr. Don Langston: Like for him to return it, at least so that I can file it back in the Supreme Court.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Rebuttal of Don Langston

Mr. Don Langston: I was going to mention about --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Do you agree this is a proper record?

Rebuttal of Don Langston

Mr. Don Langston: This is the -- this is the original transcript filed in the Arkansas Supreme Court and it has also been considered by this Court on certiorari from the Arkansas Supreme Court.

I see it here marked on it "received September 22, 1966, Office of the Clerk Supreme Court of the United States.”

In Arkansas, we have five crimes which we -- which our legislature has determined or bad enough to require the death sentence.

They -- those are murder in the first degree, rape, kidnapping, treason, and burning of prisons by convicts.

Our law ever since these crimes --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: What was the fourth one?

Unknown Speaker: I’m sorry.

Rebuttal of Don Langston

Mr. Don Langston: Burning of prisons by convicts.

Unknown Speaker: Well, how about the one before it?

Mr. Don Langston: Treason.

Unknown Speaker: Treason.

Oh, I’m sorry.

Mr. Don Langston: In Arkansas these five crimes were originally punishable by death.

That was the only sentence.

It was automatic on the finding of guilt in those particular cases that the person be sentence to death.

But in 1915, our legislature saw fit to allow some discretion by the jury and enacted the statute which allows the jury in its discretion to return in sentence, a life sentence.

In this particular case, the verdict form was at that top of the page it said, “We the jury found the defendant not guilty.”

The second form was, “We, they jury have found the defendant guilty of rape and fixed his punishment at life imprisonment.”

The third form was, “We, the jury found the defendant guilty as charged in the information.”

And when the jury brought in, the verdict saying, “We, the jury found the defendant guilty of rape as charged in the information” that ended their proceedings.

It was then mandatory upon the judge to -- under the law to sentence the defendant to death.

Unknown Speaker: Suppose as I think Mr. Justice Black raised in his colloquy that this judge thought this was outrageous or it shocked his conscience or something like that.

Mr. Don Langston: Your Honor, we didn’t --

Unknown Speaker: Couldn’t he set is aside or sent it back to the jury for reconsideration or something like that?

Mr. Don Langston: Of course, one, he can -- when a motion for new trial is filed for the defendant, he can grant his motion for a new trial and give him a complete new trial.

We didn’t cite it in our brief that --

Unknown Speaker: Any limitations on that?

Because it have to be four errors committed in the trial or can we just say --

Mr. Don Langston: I believe that the defendant could probably say in his motion for new trial that the judgment is contrary to law and that it is excessive and that would be an error.

Unknown Speaker: That it is what?

Mr. Don Langston: That would be an error.

Unknown Speaker: What is --

Mr. Don Langston: That the judgment is contrary to law and that it is excessive.

Unknown Speaker: Oh, excessive, yes.

Unknown Speaker: But it has to be contrary to law.

but what law is it contrary to if it’s just shocks the conscience or to use Mr. Justice Black’s word, outrageous?

Mr. Don Langston: I think that under that he could set it aside just being arbitrary.

I don’t see any recourse that the state would have in appealing case with the Supreme Court of Arkansas on his judgment or setting it aside.

Unknown Speaker: Is that -- but that’s not -- is that acknowledged in any statute or any of decided case?

Or is that just something that judges do when there’s conscience of shock or it’s outrageous?

Mr. Don Langston: There is nothing on the motion for new trial Your Honor.

There’s no case -- reported cases on that.

We do.

I was going to give you a second statute which I think would give the judge the authority to reduce the sentence.

It’s never been passed on by our Supreme Court and we didn’t cite it in our brief and its 43.

It’s Arkansas Statute 43-2310.

That statute reads, I have it here before me, it reads, “The courts, this is the trial court, shall have the power in all cases of conviction to reduce the extent or duration of the punishment assessed by jury if in the opinion of the court the conviction is proper and the punishment assessed is greater than under the circumstances of the case ought to be inflicted so that the punishment be not in any case reduced below the limit prescribed by law in such cases.”

That statute does appear to give him the power to reduce the sentence to life imprisonment and if he so desires.

It’s never been passed on by our court.

Unknown Speaker: I see.

Do you know of any instance in which that power has been exercised?

Mr. Don Langston: I would imagine that it has never been exercised.

I wouldn’t want to speculate on that but ordinarily our judges follow what the jury says.

They’re elected in Arkansas and I imagine they wouldn’t want to go around setting aside jury verdicts because it would look bad.

Unknown Speaker: In whose eyes?

Mr. Don Langston: In the eyes of the community which he is serving and has to run for re-election every four years.

Mr. Amsterdam said something about impeachment in his -- impeachment of a defendant who takes a stand when he was -- when he testifies in his own behalf and I believe he went further than Arkansas procedure allows.

On impeachment, you can’t ask him about all kinds of bad conduct but if he denies it you are bound by his answer.

You cannot.

You cannot introduce independent evidence of that bad conduct.

You have to live with his answer.

Unknown Speaker: Against the charge of perjury?

He lives with his answer plus a charge of perjury.

Mr. Don Langston: I imagine it would, Your Honor.

We think that the Arkansas, that the standards in Arkansas death cases our sit by the statute whenever in a rape case whenever the jury finds that a defendant has carnal knowledge of a female forcibly and against her will that it can bring him the death sentence.

Those standards are the elements of the crime.

Now in its mercy the jury can bring him life imprisonment.

But I would do want to emphasize that the made -- that the penalty actually is death and not life imprisonment.

And that appears that the Arkansas procedures sort of reverse from some of these others.

In California, theirs is the ultimate but ours is the mandatory sentence of death but with the statute, the jury can its discretion recommend life imprisonment with the judge must abide by.

Now in Arkansas, same when the crime of larceny which carries a penalty from 1 to 21 years, all that the jury has before them is the evidence in the definition of the elements of larceny and they can sit that punishment at any point in that extent of time they want to.

There -- the prosecutor gets up there and argues that he ought to have 21 years.

The defense gets up there and argues that he ought to get the minimum sentence.

And the jury then sets it somewhere in between that.

It appears from my reading of the federal statutes that there’s procedure in death sentences as the same as it is in Arkansas, that they have a unitary jury at one jury, and that they bring in the verdict of guilt and fix the punishment at the same time.

So what appears to us that if the Arkansas statutes are stricken down by this Court that the federal rule would also follow with it.

In this case and the transcript going back to the Witherspoon argument that the jury is the conscience of the community and that is a sort of a standard.

The court’s instruction in number 2 on page 3 (a) of this transcript be among other things tells him that in reaching your verdict exercise your judgment, your common sense and reason in passing a bonus case and give the testimony of any and all witnesses such weight as you think it is entitled to and let your verdict be in accordance with the truth and the law.

When the state proved that this person intruded.

When the state proved that Maxwell entered into his victim’s home, beat her up, drove her across the street, and attacked her in the vacant lot in the state proved the case for death.

The only was he can get anything less is for the jury to exercise mercy which he had declined to do under the facts of this case.

Unknown Speaker: Forgive me for this -- raising this, this may not be directly irrelevant, but I always have difficulty when counsel referred to a jury as reflecting the conscience of the community.

Now particularly in this penalty matters, it might very well be that if he took a vote in the community, the prevailing settlement would be to lynch him or hang him or electrocute her or the Lord knows what.

But that -- the material that is there before the jury might indicate a reasonable man who is a human being that some other consequence ought to be attached and one of the fundamental perhaps it’s philosophical are rather than strictly legal, one of the fundamental questions that all of this raises is what the jurors suppose to do.

And I had thought the juror was suppose to bring the bear upon the material before him as comprehended by his senses, his qualities as a human being subject to the law and the standards if and if that were given to him rather than to reflect what might be a community attitude towards rape or murder or this particular fellow.

Mr. Don Langston: Well, of course I think that the jury, I don’t know whether this answers your question or not, but I don’t think the jury can live its conscience outside of the jury box.

I think they take everything in their boxes or prejudices.

Unknown Speaker: No, that’s -- their conscience they bring not -- but not the conscience necessarily the conscience in the sense of a growth of their reaction grossly of the people at large who don’t have before them what the juror is suppose to have before him and that is as I was trying to suggest perhaps not very articulately related to the question that is being argued here namely the question as to whether in bringing to bear his own conscience, his own qualities as a human being, his own comprehension upon the material before him if that’s the jurors function rather than just to reflect the gross reaction of the community.

The juror must as a matter of constitutional principle have the guidance of some standards in at least a philosophical sense that may be may light perhaps at the close to the heart of the issue in this case.

Mr. Don Langston: Of course we don’t -- we think that the standard is said in the statute and we don’t see how you could draft to set the standards that would tell the jury what to do in each particular case, I think the legislature to adopt standards would have to be in session all the time and enact almost ex post facto laws to cover every situation and that is what are our argument is that the only thing that you could -- we don’t think whether to use a weapon or whatever you do makes any difference.

We think that the evidence before the jury that that is the standard that they’re going to go by is the evidence that is presented in the case.

There are no further questions, that’s our case.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Very well.

Well Mr. Amsterdam.

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Thank you Mr. Chief Justice.

I would like to address three things if I may in rebuttal.

One, the substantive arguments for the States of California and Arkansas, only very briefly.

Two, the Witherspoon question in this case.

And three, the point brought up by California as the differences between California and Arkansas procedure and the relevance of that for disposition of this matter.

My response on this substantive level can be, I think very brief.

As I understand that both California and Arkansas admit that we got an arbitrary procedure going here and they defended simply on the ground that it’s necessary, they can’t do anything else whether it’s beneficial to the defendant.

Both in reading the brief and in hearing the oral argument, I was struck that I heard this argument somewhere before.

And so I look around I found it indeed, I have.

This -- the argument that you have to allow arbitrary discretion so is to individualize on the facts of each individual cases, originally written by William Taylor in 1785.

He was defending the English Bloody Code under which 250 crimes were capital.

And he defended that on the ground that you couldn’t get a narrower formulation.

Just no way I which you could cut down on some of these crimes by fixing standards, taking somewhat might have been careful.

He said, the preference for the English system of having a broad net in which he can make capital punishment available and then letting the Executive commute was in the consideration that the selection of proper objects for capital punishment depends principally upon circumstances which however easy to perceive in each particular case after the crime is committed.

It is impossible to enumerate or define before him and so on.

And he concluded eventually that the Law of England was based on the wise policy of sweeping into the net every crime which under any possible circumstances may marred the punishment of death and then letting individual circumstances furthered out and concluded that the wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offenses which the Laws of England are accused to creating beyond those of other countries as the Bloody Code was justified.

Unknown Speaker: How many capital crimes were there?

Mr. Anthony G. Amsterdam: About 250, Your Honor.

Unknown Speaker: What year was that?

Rebuttal of Don Langston

Mr. Don Langston: He wrote in 1785 originally.

Now, of course weighing indeed go about it was a simply cut back more and more.

They first of all removed the death penalty for stealing from bleaching grounds and then for pickpocketing and then for taking (Inaudible) and what have you.

Until they got it down eventually to murder and then in 1957 notwithstanding the real commissions recommendation which the California cites in its brief saying it was very difficult to get down any narrower as a matter of category English went ahead again.

In 1957, and delimited capital punishment by categories.

Now, the only other thing I think need to answer --

Unknown Speaker: Was that done by parliament or with the court?

Mr. Don Langston: It was done by parliament.

Unknown Speaker: With the court?

Rebuttal of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: That’s correct.

The only other thing I need to answer to this suggestion that the arbitrary discretion is justified by necessity or beneficence is that it makes an awful difference who you are being beneficent to.

It might well be that you defendants might get a better shake.

A lot of them would get more even handy justice and makes difference whether it was white or black defendants that you’re talking about in terms of whether this are good or bad system.

But in any event I want to emphasize that our argument does not take discretion, compassion, or anything else out of the system.

That is what Mr. Justice Fortas was talking about when he spoke about the next question or the next case.

The question is whether standards can be devised which lead compassion in but narrow the range of discretion beyond what Arkansas allowed and our only contention here is that Arkansas has found the net too broadly and delimited to discretion too little.

We do not contend for mandatory categories which we throw out wisdom and pity and compassion.

We simply contend for rule of law that limits the application of the death penalty much more narrow that Arkansas does.

Now the second thing I want to address myself to is Witherspoon.

I hope that in looking at the transcript of -- what we argue in this case this Court will remember a number of things.

First, Witherspoon has been generally cut to ribbons by the courts below.

And I don’t think the court can likely assume --

Unknown Speaker: By the Courts below are you saying?

They don't --

Mr. Anthony G. Amsterdam: Not Arkansas Your Honor, by every Lower Court that I’ve seen decided Witherspoon case since Witherspoon earlier.

There are dozens of them pending on certiorari here.

The kind of cutting the ribbons I’m talking about is that the lower courts (a) have eased up on the kind of opposition to the death penalty that permits exclusion.

Secondly, they have authorized exclusion where question is asked which the pretty good Witherspoon question but the answer is equivocal.

They authorize exclusion.

Three, they read pre-Witherspoon records and saw they were done in light up Witherspoon assume that the jury is saying something that meets the Witherspoon testing.

Go ahead and let him sit for a number of courts have held that if only a couple of jurors are thrown off under Witherspoon, it doesn’t make it bad as only a couple were here.

Five, The courts have held that if the prosecutor’s remaining pre-emptor challenges exceed the number of juries in question that that sentence doesn’t get vacated under Witherspoon.

I raised all these for this reason.

This case has never had a Witherspoon claim at.

The habeas petition was filed prior to Witherspoon.

The District Court specifically since this is a second federal habeas corpus petition as whether there were other issues in the case.

Witherspoon was never put in here.

The court said, you know I’m going to be very weary about -- weary and wary about entertaining a third.

I just wouldn’t simply assume that this case going to be settled or that Maxwell is going to stay alive for vindication of some Witherspoon claim and again I’m worried about the Witherspoon claims on this record in term unless this Court sets right.

All of the developments of post-Witherspoon law which it made a very limited ruling indeed out of Witherspoon, more than that, Maxwell has been on death row in Arkansas since 1962.

He has twice come within a few days of his death, the last time to be saved only by a stay issued by Mr. Justice White of this Court.

What a lot of courts are doing in light of Witherspoon is the same, we vacate the death since we give them a new trial, new penalty trial now to determine whether he should live or die.

It would be inhumanity second only to killing this man.

Not to resolve the issue now finally presented whether the State of Arkansas has any right to be trying this man for his life under the unconstitutional procedures that we are challenging.

I can appreciate --

Unknown Speaker: I suppose you contemplated the possibility that a proscription of standards may result in more and not fewer death penalties.

Have you got a reaction on that, Mr. Amsterdam?

Mr. Anthony G. Amsterdam: I don’t.

I think I have two reactions to it.

One, I doubt it.

Depends on what standards they are.

And it assumes, it assumes that our argument is an argument for mandatory categories which would take compassion out of the system.

We don’t argue for that.

Unknown Speaker: I’m not -- that’s not what I have in mind.

But necessarily, there is a possibility in a way and the man may reasonably differ as to how important it is that proscribing standards for the imposition of the death penalty may result in more death penalties and would come about if the juries were just left free and do what they choose.

And I assume you have considered that and that you've concluded that it’s not really relevant to legal argument that you make.

Mr. Anthony G. Amsterdam: I have Your Honor and I will add this.

There are to the best of my knowledge, 475 men on death row at this moment in the country, 470 of them were sentence by juries exercising discretion akin to or in some way like Arkansas.

The decision in this case which we asked for would vacate or lay the ground for vacating.

A number of death sentence as we contend are unconstitutional.

The Governor of Arkansas has 14 men on death row whose executions he has held out pending disposition of this case.

This Court has before it petitions for certiorari from Alabama, from New Jersey, from North Carolina, from California raising this issue.

I am very sensitive to the notion that this Court should not decide constitutional questions prematurely.

But if eminent death of dozens of people can make an issue not premature, the issues presented here are not premature.

There is no question of no adversity, there’s enough adversity in this case to float a dozen constitutional issues.

There is not enough.

There’s no question here of an unfocused nature of the issues.

The issues are clearly focused and the question is presented for decision

We suggest that for this Court to put up on speculation of Witherspoon or something else.

The contention between this parties Arkansas contending he has a right to try William M. Maxwell and kill him without standards and are contending that for eight, the better part is six years.

He’s been on death row and for longer than that under jeopardy of death under an unconstitutional regime.

That’s the issue we put this Court.

We ask this Court to decide the Arkansas procedure is unconstitutional for violation of the rule of law and we hope that it will reach and decide the issue in this case.

Thank you.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: We’ll recess now.

Featured:

Boulden v. Holman - Oral Argument

Thu, 23 Aug 2012 18:16:35 +0000

Case:

Boulden v. Holman

Media File:

644_19690226-argument.mp3

Related Transcript:

644_19690226-argument

Transcript:

Argument of Mr.chief Justice Warren

Mr.chief Justice Warren: Number 644, Billy Don Franklin Boulden versus William C. Holman Warden.

Mr.Moore.

Argument of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Mr.Chief Justice, other members of this Court.

I have been appointed by this Court to represent this petitioner Billy Don Franklin Boulden.

The matter before the Court that we raised originally was on an involuntary confession.

At a later state after we've gone on the Fifth Circuit, the Witherspoon case came out and I raise that point also on state jury and I talked it over the Boulden counsel, both of which have comment in our briefs and in his brief, that what I will comment on both these aspects.

Argument of Mr.justice Brennan

Mr.justice Brennan: Was the Witherspoon point raised below?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: We did not -- I did not raise it below on the Fifth Circuit, no sir.

Because it didn't come out until after I've been to the Fifth Circuit.

That's why, Your Honor, I just want to spawn out things at story.

Argument of Mr.justice White

Mr.justice White: What jurisdiction we have to consider here?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: I believe that in my brief, I have found a case whereby you find it Your Honor you can consider in Clifford -- Stuart versus Sea Groups, the Court pointed out that matters if were not passed on --

Rebuttal of Mr.justice White

Mr.justice White: Federal court.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Sir?

Rebuttal of Mr.justice White

Mr.justice White: That's what the federal court?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: It's from this Court --

Argument of Mr.justice Stewart

Mr.justice Stewart: You are the better authority, Mapp against Ohio.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Sir?

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Mapp against Ohio is pretty good authority to you.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: This is a federal -- this is Supreme Court decision that I was referring to here.

It's in the brief.

Rebuttal of Mr.justice White

Mr.justice White: Does this case have it heard from the federal court?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, it's on appeal it started in state court of Alabama.

Yes, they came through the District Court and then the Court of Appeals and then we're here.

I would like to comment first on the aspect of it having to do with the involuntary confession.

This is a -- as I understand involuntary confession, the totality of circumstances doctrine really gets down to the question of common sense.

Whether or not the accused gave up some right that he had and whether or not he was coerced and whether or not individual can be coerced under these circumstances.

In brief to kept suited here, we have 19-year-old Negro boy, who was on the woods fishing, a 15-year-old white married girl comes along and whether he seduced or not is open to speculation.

In any event, they entered into two acts and as they were coming back down out of the woods, it game warden who was unbeknown either one up in the woods halted them and charged at that point, this young boy took a pistol and shot the game warden.

He apparently lost his head if the evidence is correct because and he took the officer's pistol and emptied it and then he was charged with cutting him with a knife some 55 feet to the woods.

A lot of unusual circumstances like, it's a small boy and a 200-pound game warden, no blood on the boy but the game warden really bloody.

But then we get on into the confession part of it.

He was immediately apprehended at the scene.

Very shortly thereafter, the girl ran out on the woods and she hide and a two police officer happen to hear, and came in and apprehended him.

The state troopers came in, the local sheriff's organization.

There was some 20 police officers at there immediately and at that time, according to the record, the police captain, or the state trooper captain said, he's told him he didn't do it.

The girl was brought forward and she said that's him then according to the boy, he and the captain had some conversation to the effect in one occasion, “if you don't confess, I'm going to turn loose on you.”

Prior to them getting the atmosphere was building up all this time and that one of these police officers had has it gun out, said, “How old are you boy?”

He told them, he said, "You're old enough to die."

He said, "Run, I haven't killed any Negro all day.”

With this sort of atmosphere building up all the time.

Their meeting that took three cars to transport him not back to his home but across the river onward to Morgan County.

Then the police officers come in, the two of them, the interrogator and the captain, and one of them has a hidden microphone and a tape recorder and you can hear those, if you listen to the tape, you could hear the anonymous sound of the jail doors opened and closing which means that nothing had gone on until they turn that tape on and at that time, we get out.

This is the first question.

“Then and now, you understand what we're doing?

We just want to talk to you.

We want you to tell us the truth about everything that happened today.”

Now, that's all the one that he had.

He wouldn't --

Argument of Mr.justice Harlan

Mr.justice Harlan: Where was this, at the station house?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: It's in the county jail in an adjoining county.

He was taken as they say in “for safekeeping not to his home jail.”

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: What's the interval between this episode and the arresting episode?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He was arrested in the late afternoon, about five o'clock and this is around midnight around eleven o'clock.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: And the written confession relied on this interrogation.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Well, as two or three, yes, we're going to get to those in just a minute.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: They went to this?

Argument of Mr.justice Black

Mr.justice Black: Where did it occur?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: It occured in Athens, Alabama sir.

Rebuttal of Mr.justice Black

Mr.justice Black: What was the joining county?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Morgan.

That happened in Morgan County.

Rebuttal of Mr.justice Black

Mr.justice Black: It happened in Morgan?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes sir and instead of -- I misunderstood what you may ask.

Instead of being carried to Tekita, he was carried enough to Athens and had troopers in the front and the back even riding in a car --

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: When did this happen in Morgan County?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Sir?

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Where did it happen in Morgan?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Out in the county of -- from Tekita as out across the river down there.

Rebuttal of Mr.justice Black

Mr.justice Black: Across the river from Tekita?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes.

He was down there fishing on the creek, mind.

Rebuttal of Mr.justice Black

Mr.justice Black: And it's towards Hudson?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Fred community is the name of it.

It's -- there's a very small community down there.

I missed one thing at Fred Community.

The mob started together before they were taken out of there.

There was a lot of talk, a lot of people congregate.

Well, they took him on in the station and in the sheriff's office and put him on a cell in a jail up in Athens, Alabama, in the adjoining county from where he was.

His daddy was down there trying to find him in Morgan and they told him he couldn't see him, couldn't talk to him.

Well, after they got this tape recorded with this hidden microphone and this case is -- it must have been the same investigator because he said he was just trying to familiarize himself with the person.

He was just getting acquainted.

And after he got acquainted for about an hours worth, then he came back in there and reduced this confession to rape.

Now, he still hadn't told him that he had a right to keep quiet.

Nobody ever told him that he might have a right to a lawyer.

But they told him, finally, it was written in this written confession that it might used against him.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: When was this confession?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: This was sometime after midnight, Your Honor.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: No, I mean what month and year.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: This is at May 1, 1960, a month before Miranda.'60.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, as of that time, nobody had ever decided that he did have a right to a lawyer, isn't that right?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: No, sir.

I realized it.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Yes.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: But the circumstances could be considered whether or not he did have not only a right to a lawyer but a right to remain silent.

I mean, that's my main point, the right to remain silent was never told to him the same.

Rebuttal of Mr.justice Black

Mr.justice Black: How old was this boy?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: 19, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: 19.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Little fellow, 120 pounds, then sickly, had broken legs, bruises in his legs, had a series of headaches.

83 IQ, so normal.

We had a psychologist that said that his defensive mechanism would make him do more anything to avoid immediate danger and that what might happen to him in the next week but that was his basic defensive mechanism.

That's in the record; it's also in the brief.

Alright, then this -- I got a hold to this first confession and had it transcribed and it's in the record.

They brought the tapes in and I think the tape is also a part of the record now.

And this was just conversation in rough language, the use of four letter words and this sort of thing where if I understood, each other they talked in the jail cell.

Then he pause it up a little bit and put it in a considerable platform and Billy Don Frank Boulden signed.

The next morning at six o'clock, he is carried back to Morgan County and Judge Bloodworth who was one of the circuit judges there, had him brought in at one room in the courthouse, right with state troopers in the courtroom and proceeded to tell him his rights.

They told him a right -- that he had a right to a preliminary, he had a right to a hearing, on bond and all his other rights and a right to have an attorney if he couldn't have one.

And it proper send him off to kill (Inaudible).

Four days later, I believe it was they -- two police officers, the same two state troopers along with the local sheriff and the Deputy Fire Marshal, rode down to get him to bring him back to Morgan County.

And on the way back, they stopped by the scene and had him reenact the scene.

They have want ahead and the state solicitor was out there, there was also I believe the electronic equipment.

And again they had a hidden microphone and led him around through it and supplied, suggested answers to him which you could hear on the tape and had another full confession.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And you say these tapes are part of the record in this Court?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir and they also are transcribed.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Now, this second confession that appears on, beginning on page 51 of the appendix, reproduced in actual handwriting, have you got to this one yet in your --?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: In my chronicle, yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: In your chronicle?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, I've already passed it.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Yes.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: A matter of fact, I'm down to --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: You're down to the second or third one now?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, I'm down to the third where they took him back to the scene, I'll be happy to --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Just -- first of all, is this the handwriting of the petitioner?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: The state trooper.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: That's the state trooper's.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: I believe you see the signature in --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, I do this signature of the petitioner which seemed to be different.

That's state trooper's handwriting not the petitioner.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir.

No question.

I mean that's --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: That's not at issue.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Not at issue.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Thank you.

Rebuttal of Mr.justice Black

Mr.justice Black: Is what happened at the first arraignment in the transcript?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir.

In great detail --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Do you remember where it is?

Don't bother -- don't bother if you don't.

Go on with your argument.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: I can answer your question about it, I believe Your Honor.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: I'll find it.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: I believe I can answer most -- I think you -- answer about it, I'll try.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Well I just want to see what -- what the colloquy was when the judge told him about have a lawyer and so forth.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Well, I'll try to comment on that on rebuttal.

I want to save my time for rebuttal.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Take your time.

Do it your own way, don't --

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: All right sir, I'm --

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: It's alright.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: I'm trying to touch all the basis put it again and save my time to.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Alright, go ahead.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: So, that we get him out down the woods with the ringed state troopers around.

This is third confession.

The hidden microphones, that he didn't know anything about, the handcuffs off and said, “Alright, lead us to it” and then they reenacted the scene out there.

Again, nobody told him then by everybody's admission that he had a right to remain silent.

As a matter of fact, he had been told about all his rights but the judge but nobody had done anything about it.

If he had had a lawyer, he certainly wouldn't made those first two confessions.

Here is out of the scene being told him to reenact it with his handcuffs off and ringed by state troopers.

And they had told about all his rights but nobody had done much about it.

But he already confessed twice before we get out into this.

Well, then they go to the trial.

This was on May 1st, and 2nd, and four days later, and we go to trial on May the 21st.

I was not in the trial, there was a lawyer appointed for him up there.

The lawyer was appointed the date before I believe.

No, no, no, several days before, a week before.

Then he was arraigned and they went to trial on May 27th.

During the course of the trial, this taped in the woods confession where he reenacted was first ready and it's at that one enough then they played the tapes for the jury just before the retired.

Now, this lawyer that was representing the petitioner objected to the reading.

He objected to the playing of the tapes and that's all in the record.

It's put in thoroughly in there.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: What ground did he object?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He went -- they went back, had a hearing before the judge in showed it to him and the judge has -- I'll answer that in rebuttal, if I may.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Sure.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Let me comment briefly if I may on the second point we've raised here.

And this is the Witherspoon case.

There are 16 in Alabama, one of the -- we have a code section which allows you to ask, whether or not you should believe in capital punishment or have a fixed opinion against capital punishment and 16 of these people said, they did and they have set out in detail.

Here's a typical one, read for W. Mixon.

I have the affixed opinion against capital punishment.

Mr.Hunt had challenged the Court defense, there should -- no question, the Court stand aside.

This went on for 16 times and which we say is squarely right in the phase of this Witherspoon opinion, in which six of the juror said, they did not believe in the death penalty with excuse without any attempt to determine whether they could nevertheless return it further took down.

And these 16 laws with two possible exceptions, was summarily dismissed, excused forth with not right without any further common question.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Now, the exceptions I guess are Mr. John L. Nelson and Mr. E. O Moon, possible exceptions as you call them, page 17.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir.

Yes.

I took each one of their testimonies that is to go for four-five miles there.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And those would be the two what you call possible exceptions to the, is that right?

If I got the right too?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: No, what I'm telling, those are firmly within Witherspoon as I see it.

John L. Nelson raised his hand.

This is page 17.

Mr. Hunt had challenged, "Do you have a fixed opinion against captain penitentiary punishment."

Mr. Nelson, "Capital punishment."

Do you think you would never be willing to inflict the death penalty in a type of case?

Yes.

We challenged.

Now that might be an exception but over here the --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well now -- now look a Mr. Moon, the next man, Mr. E. O. Moon.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Do you have a fixed plan against capital punishment?

Capital punishment, do you mean you would never inflict the death penalty?

That's right challenge.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Now, do you claim that --

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: For those that two in our list.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Those are two exceptions.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Yes, alright.

I just --

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Now, then we get to the next in Riley, do you have a fixed opinion against capital punishment?

Capital punishment, challenge, no question stand aside.

Simpson, do you have a fixed opinion against capital punishment?

Yes, I challenge.

No question, stand aside.

So that at least 14 of them are like that where they just for prelim of -- for excuse me.

If I may, I'd like to save a few minutes for rebuttal.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: You may.

Mr.Clark.

Argument of David W. Clark

Mr. David W. Clark: Mr.Chief Justice, may it please the Court.

This is a case of murder in the first degree conviction arising in Morgan County, Alabama.

The crime was committed on May, 1st, 1964 in the afternoon.

Now, right after this murder occurred, the police arrested this young man and there was some evidence brought after there was a mob but actually the patrolman testified a few curious to seek this came around.

They held this young man until Captain John Williams to talk with him.

Now, the petitioner testified that someone of the officers threatened to kill him, told him to run and they'll shoot him.

Now, we had at the habeas corpus hearing --

Rebuttal of Mr.justice Black

Mr.justice Black: Was that denied?

Rebuttal of David W. Clark

Mr. David W. Clark: That was denied.

Rebuttal of Mr.justice Black

Mr.justice Black: I beg your pardon.

Rebuttal of David W. Clark

Mr. David W. Clark: It's the point that I'm going to bring out.

At the habeas corpus hearing in the District Court in Montgomery, we had an officer John Brom, who testified and that's on the record page 657 that, no one pointed a gun at the petitioner and no one spoke to him at the crowd, that's on the record page 64.

Now, --

Rebuttal of Mr.justice Black

Mr.justice Black: Did the man who was supposed to have said that testified?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir, because --

Rebuttal of Mr.justice Black

Mr.justice Black: Did he denied.

Rebuttal of David W. Clark

Mr. David W. Clark: Billy Boulden said that there was an officer Good in another -- another patrolman there.

Well, this was on the other patrolman there and he testified he didn't point it, didn't see nobody pointed a gun, didn't hear anybody threat him.

Rebuttal of Mr.justice Black

Mr.justice Black: But how about the one who was suppose to have said it, did he testified?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: And he denied it, did he?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: Well, that's all I want to hear.

Rebuttal of David W. Clark

Mr. David W. Clark: And of course, Judge Johnson, the district judge had to identify that both of their testimonies.

His conclusion was after him been denied habeas corpus.

Now, as we pointed out, this -- the boy was arrested about 5:30, I believe around 7 or 7:30 that night pursuant to an order of the circuit judge, this young man was moved to the joining county's jail, Limestone County in Athens, Alabama.

Here, he was interrogated.

Rebuttal of Mr.justice Black

Mr.justice Black: Would you mind telling us what the reason for the removal as to the other county?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

It was a precautionary measure.

There had been a murder of a popular man and there had been a positive of rape there and to keep --

Rebuttal of Mr.justice Black

Mr.justice Black: It was a matter of security.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Security matters.

It was a short distance to the next county.

Rebuttal of Mr.justice Black

Mr.justice Black: Yes, alright.

Rebuttal of David W. Clark

Mr. David W. Clark: Now, there was this something said about he wasn't warned of his rights at that time before this first confession was taken.

That was the one made the first at the jail in Athens, Alabama that night.

Now, I'm calling the Court's attention to, I believe its appendix page 45, where the question Captain Williams I believe you stated earlier.

"You advised the defendant, he didn't have to make a statement and that he was entitled to a lawyer."

"Is that correct?"

Answer, "I did."

"On May 1?"

"Yes, sir."

That's the record page 45, rather appendix page.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Was that the law of Alabama at that time that he was entitled to a lawyer at the time he's being interrogated by the police?

Rebuttal of David W. Clark

Mr. David W. Clark: Incidentally, this trial, I would point out to the Court that the murder occurred on the first of May.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Yes.

Rebuttal of David W. Clark

Mr. David W. Clark: And the trial was May the 27th through the 29th.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Of 1965?

Rebuttal of David W. Clark

Mr. David W. Clark: Of '64 sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: '64.

Rebuttal of David W. Clark

Mr. David W. Clark: Prior to Escobedo or --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Prior to either one.

Rebuttal of David W. Clark

Mr. David W. Clark: I should like to point out to the Court that --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: This Captain Williams said that he was told the petitioner that he was entitled to a lawyer by the time of his being -- the time he's being interrogated?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Was that the law of Alabama?

Rebuttal of David W. Clark

Mr. David W. Clark: It was not an absolute requirement throughout Alabama but in that circuit, Judge Bloodworth was really an advanced judge in thinking at that time.

He had insisted on those things.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Because it wasn't the law generally, it wasn't any constitutional requirement.

Rebuttal of David W. Clark

Mr. David W. Clark: Well, it wasn't at that time judge.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: I beg your pardon?

Rebuttal of David W. Clark

Mr. David W. Clark: It was not an absolute requirement at that time.

Now, I should like to point out to the Court that an attorney was appointed at arraignment on May the 7th and this should note incidentally filed the matters to the indictment and the case was heard about three weeks later he had time to prepare for it.

Now, back to the confession on the eve of May the 1st; after being advised of these rights --

Argument of Mr.Justice Marshall

Mr.Justice Marshall: What time was this?

Rebuttal of David W. Clark

Mr. David W. Clark: What time?

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Was it night?

Rebuttal of David W. Clark

Mr. David W. Clark: I believe it was around 10:30 - 11 o'clock somewhere in that.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: At night?

Rebuttal of David W. Clark

Mr. David W. Clark: At night, sir.

He had been faired and was permitted to the bathroom facilities and so forth and allowed to smoke in those things.

There was no long interrogation.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: As a matter of fact, he said, "I wish to make the following voluntary statement to E. B. Watts."

"I have not been threatened in no way or for no reward or hope of reward to get me to make a statement."

"I had been told by Mr. Watts that any statement I make can be used against in a court of law."

He just volunteered with that statement.

Rebuttal of David W. Clark

Mr. David W. Clark: It is my understanding, Mr. Watts asking those questions and then wrote it down.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: But he says "I, Billy Watts

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir.

That's -- that was written in the confession but at the time Watts testified at habeas corpus, he said that he asked the man these questions and wrote it down ask when it to.

Now, after this confession was given which incidentally I would like to point out, neither this confession nor the tape recording was used at the original trial on May 27th.

On the next morning, May the 2nd, petitioner was taken before Judge James Bloodworth and advised of his rights.

He was advised of fully.

I believe there is 127 pages in the record showing the advice he gave.

He had a hearing that morning six o'clock, he advised him seriousness of each of the offenses, he advised him to get a lawyer, how serious the crimes were possibility of a death sentence and he talked with the parents and relatives of the boy also and told them that that is incorrect.

Now, after this hearing and I believe at that time, the family was endeavoring to get Sherman Powell, a local attorney to represent Don Boulden.

They were not successful.

Now, because of further precautionary measures, Judge Bloodworth had this man transferred to Kilby prison.

Now, then May 6th, the man was brought back to guilty.

He had been indicted for on three indictments murder, rape, and robbery.

He was tried on murder.

They brought him back and passed through common and then it passed through the cave where he reenacted the crime.

Now, a transcript of that tape and those tapes were put in evidence at the trial.

Now, as this case occurred before either Escobedo or Miranda, the totality of circumstances the rule was applied.

Now, in the brief of the petitioner, he cites Payne versus Arkansas.

Well, I think that is one that really shows all the faults Here was a case of a 19-year old person, a boy who was denied of hearing, was arrested first without a warrant, denied a hearing before a magistrate, who could advice him of his right to remain silent or to counsel.

He was not advised of his rights by the Court in Arkansas.

He was held incommunicado for three days without advice of counsel, friends, relatives.

He was denied food for long periods, threatened with mob violence and so forth.

Now, those things in the totality of both circumstances would indicate an involuntary confession with one who was coerced.

Such was not the case as Boulden found.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Mr.Clark, it may or may not be material to the case, I don't know, but I'm just wondering on the facts here, the petitioners testified that the girl consented.

She testified that she had been raped.

Upon leaving the wooded area where the act took place, the two were confronted by a conservation officer for the State of Alabama then the girl ran away at that time to a nearby highway which is located deputy sheriff.

What did she say to the officer who first confronted them, the conservation officer?

Did she explain?

Rebuttal of David W. Clark

Mr. David W. Clark: She explained that she had been raped.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: I beg your pardon?

Rebuttal of David W. Clark

Mr. David W. Clark: She had him raped, as they say and that she complained of rape.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: To this officer?

Rebuttal of David W. Clark

Mr. David W. Clark: To this officer.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: I see.

Rebuttal of David W. Clark

Mr. David W. Clark: And at that time, --

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: But she didn't look to him for protection.

She ran away from him?

Rebuttal of David W. Clark

Mr. David W. Clark: She ran to the Officer, yes and got behind the Officer Hays.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: No, I'm talking about the conservation officer.

Rebuttal of David W. Clark

Mr. David W. Clark: Behind to sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: I beg your pardon?

Rebuttal of David W. Clark

Mr. David W. Clark: She got -- she ran and got behind Officer Hays, who the conservation officer.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: I thought she ran clear away.

Rebuttal of David W. Clark

Mr. David W. Clark: Oh, no sir.

After Hays was killed, she ran to the highway and contacted some highway patrolman.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Oh, she was there when he was killed.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Oh, I see.

I beg your pardon.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: She would -- was she an eyewitness?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir, she was.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Did she testify in this case?

Rebuttal of David W. Clark

Mr. David W. Clark: I believe she did.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: I hadn't understood that from the briefs but you know more about the case.

Rebuttal of David W. Clark

Mr. David W. Clark: I'm not certain, Your Honor, without looking at the big record which I don't have it before.

Rebuttal of Mr.justice White

Mr.justice White: (Inaudible)

Rebuttal of David W. Clark

Mr. David W. Clark: I don't have the principal -- she ran away I believe before he had actually died, the conservation officer.

She ran for help.

Rebuttal of Mr.justice White

Mr.justice White: When that -- did she make --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Why would -- do you know where we would find that in the record here?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

That would be in the large record about 400 pages it was sent up an Exhibit A.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Not in the -- not in the appendix?

Rebuttal of David W. Clark

Mr. David W. Clark: Not in the appendix, no sir.

And I believe the Court has informed us that Your Honors will take knowledge of that.

Rebuttal of Mr.justice White

Mr.justice White: Exhibit 54 and 55, this is one of the stateemnts.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir.

Of course, 54 and 55 is Boulden's statements.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: The statement on page 5 of the petitioner's brief is this.

After they were stopped by Hays and prior to the shooting and sticking, Boulden had told Amber not to run and she did.

Hence she was not an eyewitness when Hays met his death.

That's just as counsel statement.

The person on top of page 5.

Rebuttal of David W. Clark

Mr. David W. Clark: That's the testimony of Boulden.

Now, this case is gone to the District Court on federal habeas corpus after being affirmed by Supreme Court of Alabama in anyone up to the Fifth Circuit.

And the Fifth Circuit in affirming the action of the District Court held that each of the appellant's statements, his actions, the facts respecting his physical and mental condition and environment from the moment of his arrest to the end of the last interrogation are essential fragments are passage about consideration on issue of voluntariness.

But we find from the record here, no possible suggestion that Boulden's will was overborne on occasion of the last confession by having made earlier ones.

Now, both the District Court and the Circuit Court of Appeals found that the first confession, the one that was not used in the trial, the one who made the first was voluntary and also that the second one was also.

That -- based on that, they held that under the totality of circumstances rule that the confession was voluntary.

Now, as to this question of Witherspoon, as Mr. Moore pointed out, Witherspoon took place after we had filed briefs on that.

However, I feel that the objection that the state court hasn't had a chance to rule on it would be a waste of time, if we went back, we have to come back up here again probably, so I won't press that objection.

I would like to point out on the Witherspoon case that the Illinois statute was “in trials for murder, it shall be caused for challenge of any juror who shall on being examined state that he has conscientious scrupulous against capital punishment or that he is opposed to this thing.

Now, that was the Illinois statute.

Would like to point out the difference of our side of Section 36 and 57 in Alabama.

In addition to about 12 grounds that were challenged, we have these others set out in Section 57.

On the trial, for any offense which may be punished capitally or by imprisonment and penitentiary, it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishment or things that a conviction should be held on circumstantial evidence which cause a challenge may be proved by the oath of the person or by other evidence.

Now, there's a lot of difference between scruples against capital punishment and a fixed opinion.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: The Witherspoon opinion, as I understand it, did however didn't really rely much on the words of the statute, but rather what actually happened in the voir dire of the jury.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And that would be the test in any case under the Witherspoon opinion.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, I believe, you -- on that case, it was on a narrow interpretation of this particular Illinois statute.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, what happened in the qualifying of the jury?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Often --

Rebuttal of David W. Clark

Mr. David W. Clark: That they had scrupulous --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: The record will show that the actual voir dire of the jury of the words of the statute weren't very carefully followed.

Now in this case, according to the printed appendix here, what was asked was just a statutory language.

Do you have a fixed opinion capital punishment, almost in each one of these 16 cases, is that correct?

Rebuttal of David W. Clark

Mr. David W. Clark: Well that is our contention.

What is a fixed opinion?

A fixed opinion, we just look to the dictionary on that and it's affirm or not movable, established opinion, one that can't be changed.

The fixed opinion against capital punishment would mean that under no circumstances would --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: It means the same to each one of the 16?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

They -- the question was “Do you have a fixed opinion?”

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: You mean each one of the 16 gave fixed the same meaning?

You couldn't mean that.

Rebuttal of David W. Clark

Mr. David W. Clark: No, I don't mean that and again, I didn't mean to say that if you interpreted it.

No the jury --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: All that were asked -- each one was asked if they have a fixed opinion.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: And it was up to each one of them to decide what fixed meant.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, even if it meant to each one of them exactly what you say it means to you and means to Noah Webster?

Isn't it perfectly possible that a person can have a fixed opinion against capital punishment that is he would vote against it if he were a legislator or try to get the legislature to abolish it if he were the governor?

But in the mean time, he would follow his duty as a jury -- as a juror.

Certainly, I suppose there are judges, many judges who have a fixed opinion against capital punishment as a matter of policy and as citizens but who do their duty and the sentence people to death when that's what their duty require.

Rebuttal of David W. Clark

Mr. David W. Clark: That's true.

They have a fixed opinion, a fixed opinion as a juror would indicate one who under no circumstances would change his mind.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well no, he wouldn't change his mind.

He'd be against it as a citizen and as a matter of policy.

A lot of people -- we have provision, national provisions, they had a fixed opinion against it.

They thought it was silly, unwise law but as jurors they would follow the directions of the Court and convict people for violating the provision laws.

Rebuttal of David W. Clark

Mr. David W. Clark: Of course, that question wasn't asked, would they find the person guilty and sentence him death under any circumstances.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: It was asked of two of the jurors.

It was asked to two of the jurors, wasn't it?

On page 17, Mr. Nelson and Mr. Moon.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: But it wasn't to any of the others.

Rebuttal of David W. Clark

Mr. David W. Clark: Well, that just indicated that that's what they all thought was a fixed opinion.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: That's what according to the most recent evidence I've seen, a majority of the people of the United States are against capital punishment as a matter of principle or policy.

But this doesn't mean that they would not be able to carry out their duties as jurors, does it, or to follow the instructions of the Court?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, if you had a fixed opinion against doing a certain thing when -- anyway --

Based on that, Your Honor, we feel that a certiorari should be denied in this case.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Mr. Moore.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: May it please the Honorable Court.

At rebuttal, I got a few notes down here.

Number one, my good friend, Mr. David Clark said, this bar was curious to seek.

When you get to read in the record, you'll see in there that the solicitor commented very firmly on it when he was trying to send the man back for safekeeping.

Because he said, you know, he knows what happened out there at fled last night with that Boulden together.

Then we get on down into what Boulden told the girl at the scene.

The record, Mr.Justice will reveal that Boulden told the girl to run.

She was not an eyewitness to the murder if he did kill him which he is denied.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, he was murdered and she was not an eyewitness to it.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: That's correct sir.

We thought it particularly appropriate and did set out on page 24 in here what led up to this thing her testimony and she did testify.

As to acts up there in the woods.

The precautions he use, the use of contraceptives on both times and this is spilled out by her own testimony in some detail indicating that now, this right thing was an afterthought when she got in and saw the police officer.

And Boulden was the one who told her to run.

To me, one of the most impressive matters in this whole thing here is that these officers wanted a confession.

They wanted a confession to convict.

They weren't looking for who did.

They thought they have found and under one of the outstanding opinion of this Court.

They were after a confession on which they could convict and could hang this man.

He was never told that any time, that you don't have to tell it to us, that you got a right to remain quiet.

Just because they didn't put him on bread and water and put a lash on his back it doesn't mean he wasn't coerced.

Just because his bathroom privileges weren't taken away from him, they gave him a couple of cigarettes that doesn't mean he wasn't coerced.

When those two police officers were standing there with this man in his cell with those doors clinging behind him, telling him “We want to know what happened.”

A little bit of a 120-pound boy.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: How old was he?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: 19, never been in trouble before.

Had a frail health --

Rebuttal of Mr.justice Black

Mr.justice Black: He had a pistol, didn't he?

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: No.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Did he have a pistol?

Rebuttal of Mr.justice Black

Mr.justice Black: Yes.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir, I think he did.

They never found it

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, he said he did.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: In some of his confessions, he did and they never show it up in the trial.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And the girl said he did.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: That's correct.

Rebuttal of Mr.justice Black

Mr.justice Black: Is there any indication that anybody else could have done this?

Had it come out --

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He has said so, Your Honor.

Rebuttal of Mr.justice Black

Mr.justice Black: What?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He has said so later when he got before the governor.

He said, at that time, two other men showed up in the scene and did it.

And he said it threatened his family and he was trying to protect his family.

Again, I cannot vouch one way or the other.

The circumstances, I see it throughout it strange.

I wouldn't have got the bloody clothe when they brought it down.

Rebuttal of Mr.justice Black

Mr.justice Black: How long was it after the girl ran to the street or the road, highway, when the officers came back down where he was killed?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Very short.

Rebuttal of Mr.justice Black

Mr.justice Black: What?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Very shortly.

Rebuttal of Mr.justice Black

Mr.justice Black: How far was it?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Less than about a half mile to a mile.

Rebuttal of Mr.justice Black

Mr.justice Black: And they came right back?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Very shortly, Your Honor.

Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: That's the information, the only information they have and what she gave them?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: This is correct.

Rebuttal of Mr.justice Black

Mr.justice Black: That this boy had killed him.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: That's right.

And he --

Rebuttal of Mr.justice Black

Mr.justice Black: Where was he then?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He was back down in the woods.

His story has been changed that two men came up and were fishermen indeed but again I'm not trying my lawsuit on this.

Rebuttal of Mr.justice Black

Mr.justice Black: I understand.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: This is what he told when he got in the Governor's office, what he told when we started in the District Court, this is when I got in the case in the District Court.

Judge Johnston was first association that I haven't had the kid.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: What happened when these two -- these two officers whom the girl had reported to came too and where he came to them was there any scuffle or anything of that kind?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Apparently, they just apprehended him as the way I read this record and in call for the highway patrol.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Was he running away or anything?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: The record then revealed that Your Honor.

My -- my recollection is to whether he was actually running at that time or not.

I think he was just out there in the woods is about all we know.

But he -- though not, never was he told that he had a right to remain silent and I think you got to know what a right is.

Know that you got one before you can give it up.

Rebuttal of Mr.justice Black

Mr.justice Black: Did he testify to trial.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, they did.

Rebuttal of Mr.justice Black

Mr.justice Black: What did he say?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Substantially, what his confession say?

Rebuttal of Mr.justice Black

Mr.justice Black: Did he say that he thought somebody else killed the man?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Not at that time.

No, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: On the trial.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: No sir, he did not.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Did he admit that he did?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: On the trial?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: At the trial.

They did.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Did he testify?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And he admitted the killing of the man.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes, sir.

Again, he said that he was protecting his family.

That was what he said in the later time.

Rebuttal of Mr.justice Black

Mr.justice Black: His defense as I understand it was that he saw this girl and he invited to go to woods with him and she went with him.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: That's right.

Rebuttal of Mr.justice Black

Mr.justice Black: And they had intercourse and that he then, when they arrested and tried him, he admitted there and admitted that he shot the officer.

There was no other defense, was there?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: This is correct.

Rebuttal of Mr.justice Black

Mr.justice Black: Admitted that he shot him and that was tried.

That was all the evidence, wasn't it?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Yes.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: What -- did he, when he testified in the trial, did he say that this officer had told him that he'd been wanting long time to kill a nigger?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He testified to that at the -- in the District Court hearing and the original hearing -- I don't think it was ever asked there, no sir.

Not at the original trial.

Rebuttal of Mr.justice Black

Mr.justice Black: Well he was asked to shoot him, wasn't he?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: He was asked if he shoot him.

Rebuttal of Mr.justice Black

Mr.justice Black: And he didn't say anything about at the statement made by him.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: No, sir.

He was asked a series of questions just about running along in the form of this confession that was taken out and the same way reenacted.

And when he took his handcuffs and when you read it, you would see he said, “Well, I'm even glad to get my handcuffs back on” because he was ringed with security and people out there then.

Again, nobody had ever told him he didn't have right to keep his mouth shut.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: But when he was testifying in the trial, what did he say was his reason for shooting a man?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: I don't know if anybody has ever asked him that Your Honor.

Rebuttal of Mr.justice Black

Mr.justice Black: But what you said, he said he's done it to protect his family.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: That's the reason he test -- what he now says as the reason he testified and made his confession.

No, no, I beg your pardon.

I didn't mean that at all.

Rebuttal of Mr.justice Black

Mr.justice Black: I misunderstood.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: If he did it to circumstances then he can lost his head which certainly didn't spelled out first degree murder but again, that's not what the reason here.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Where do we find this testimony, listed in the appendix?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Judge again, we were trying to cut this record down pursuant to our instruction and I don't -- let's see how much here were picked up.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: This seems to be the habeas corpus hearing, mostly in the appendix, isn't it?

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Well, I think -- we will have to go back to the original record which is here.

Justice Abe Fortas: I believe it will be 478 about 600 I think in the big record.

Rebuttal of Mr.justice Black

Mr.justice Black: In the big record.

Thank you.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: 478 to 600.

Justice Abe Fortas: Yes, right in there somewhere.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Now again, I want to make one more observation.

I realized that the routes that I have presented to this Court or in Congress.

If I'm correct that this is an involuntary confession by statute, then I presume he's entitled to a new trial.

If on the other hand, Witherspoon is applicable, I presume then his conviction would stand but the death penalty could not be carried out.

And this is obviously the decision the Court will make in any event one way or the other.

But I thought I owe the Court an explanation why so both routes.

As the attorney for the man, it appears to me that I must exhaust all possible remedies and laws of protection that he might have.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: I don't think that anybody is going to object to you at that thing.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Alright, so I'm halucinating.

There were some question as to where --

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: Whether they accept it or not --

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Well, I understand that.

Rebuttal of Mr.Justice Marshall

Mr.Justice Marshall: I'm sure nobody would --

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: If I could answer any question, I'd be pleased to try.

Rebuttal of Mr.chief Justice Warren

Mr.chief Justice Warren: Very well.

Rebuttal of Mr.william B.moore, Jr.

Mr.william B.moore, Jr.: Thank you.

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Argument of Norman B. Smith

Chief Justice Earl Warren: Number 1016, Wayne Darnell Bumper, Petitioner, versus North Carolina.

Mr.Smith, you may continue with your argument.

Mr. Norman B. Smith: Mr.Chief Justice and may it please the Court.

Yesterday afternoon, at closing time I think I had made the proposition that the challenge for a cause should be limited only to people who say they cannot give either the state or the defendant a fair trial.

That only those people should be kept off the jury.

Now I'd like to state my reasons for this proposition.

Justice Potter Stewart: Before you begin, I want to be sure I understood correctly what I -- I thought I understood you to acknowledge and concede yesterday and that is that in this case, there was sufficient opportunity for interrogation of the venary of the respective jurors so that the challenges for cause were allowed only for those respective jurors who said that in this case they could not return a verdict of death, is that --

Mr. Norman B. Smith: Your Honor that's --

Justice Potter Stewart: -- do you concede that?

Mr. Norman B. Smith: That is my opinion and I really -- I don't attempt to make the question any broader than --

Justice Potter Stewart: Right.

So --

Mr. Norman B. Smith: -- what I've just stated.

Justice Potter Stewart: So this is a different case in that respect from the Illinois case here?

Mr. Norman B. Smith: Yes, Your Honor.

Of course, that issue, I suppose could be reached in the Illinois case --

Justice Potter Stewart: Yet --

Mr. Norman B. Smith: -- but this is really, I think a -- were confronted of, I believe here with the collision course really between the right of the state to seek the death penalty and what we contend to be the right of the defendant to seek a fair trial.

Now --

Justice Abe Fortas: May I ask you a question to --

Mr. Norman B. Smith: Yes, Your Honor.

Justice Abe Fortas: Here, there is no statute, is there?

Mr. Norman B. Smith: No, sir.

There's a long line of cases in North Carolina and beginning, I believe about 1870 the earliest one of which is cited in petitioner's brief and we're concerned only with the common law disqualification.

A really common law is not the right word either because I contend there was no disqualification of the common law but it is a court-made rule enforced in North Carolina.

Justice Abe Fortas: And --

Mr. Norman B. Smith: And --

Justice Abe Fortas: Is there -- are you suggesting to us that there is a pattern here of which the pattern here -- or which this -- disqualification as a pattern, a pattern of disqualification for this particular reason?

Mr. Norman B. Smith: Yes, Your Honor, I certainly think so.

The first point, I believe, is it -- that it's numerically significant.

Now, the Attorney General of North Carolina stipulated or conceded in the case of Crawford v. (Inaudible) that 30% of our citizens in North Carolina would be challengeable for a cause on this ground, on the ground of conscientious subjection to the death penalty.

I presume that elsewhere in the United States, the statistics are pretty much the same.

Certainly from the (Inaudible) post and the other indices available to us are -- this is not an unreasonable figure keeping in mind that some of those who at the outset say they are opposed which is something like half of our population may as the study cited by Mr. Jenner (ph) yesterday made by Professor Zeisel indicates, these people when really put to the test of a heinous or atrocious crime might back down and be willing to invoke the death penalty.

But I think that 30% figure is a fair figure for North Carolina since it's conceded by my adversary.

Justice Abe Fortas: Well, forgive me.

Let me ask you another question.

Is that the position here that the state has a right to have persons in this category disqualified for a cause?

Mr. Norman B. Smith: Well, I think --

Justice Abe Fortas: Suppose a judge said, “Alright, this respective witness says that he has a conscientious scruple against returning -- imposing the death penalty in this case” but nevertheless, I think he is taking all and all, he is qualified to serve.

Would that be error under your law or with it be -- regardless of whether you -- there's anything in the District Prosecuting Attorney could do about it.

Would it be error as you understand your law or would it merely be a permissible exercise of discretion by the judge?

Mr. Norman B. Smith: Well, if -- I'm not sure I understand the question, Your Honor.

Is it -- you mean if a prospective juror says that he could do it in some cases but not in all cases --

Justice Abe Fortas: No, prospective jurors says that to his conscientious scruple, he could not -- against imposing the death penalty.

He couldn't do it generally.

He can't do it in this case, in any particular case.

Mr. Norman B. Smith: Yes sir.

Justice Abe Fortas: And the judge nevertheless says, “Well, taking it all and all I'm going to overrule the challenge for cause."

Mr. Norman B. Smith: Oh, I think that would be error.

And although I haven't researched the question, my often opinion would be that the state could have the error reversed by the Supreme Court although appeals by the state are very nearly limited in North Carolina in criminal cases not -- without researching the point, I'd hesitate to say.

But if he recognize this error whether or not the state could procure a reversal is something I noted Mr.McGalliard could answer more correctly than I can.

Justice Hugo L. Black: May I ask you to be answering -- is it clear but your -- does the North Carolina have a death sentence imposed?

Does it authorize the death sentence?

Mr. Norman B. Smith: Yes, Your Honor.

Justice Hugo L. Black: For crimes like this?

Mr. Norman B. Smith: Yes, sir.

Justice Hugo L. Black: And what you're insisting, as I understand it, is that it is a constitutional error for people to be taken off the jury because they tell the jury the -- under no circumstances, would convict and impose the death sentence.

Is that your position?

Mr. Norman B. Smith: Yes Your Honor, it is.

Justice Hugo L. Black: That's the question that you brought to us?

Mr. Norman B. Smith: Yes, sir.

Well --

Justice Potter Stewart: Now it's not that -- I must say I misunderstand you.

It's not that they tell the judge that they would not convict.

They should tell the judge that they would not impose the death sentence, isn't that --

Mr. Norman B. Smith: Yes, Your Honor, that's --

Justice Hugo L. Black: Oh, that's what I mean.

I did --

Mr. Norman B. Smith: That second --

Justice Hugo L. Black: That's what I thought you've said it.

Mr. Norman B. Smith: The second question is not asked under our practice and it's my contention that that second question is the vital question --

Justice Hugo L. Black: That was your point, yeah?

Mr. Norman B. Smith: Now --

Justice William O. Douglas: Would you -- I'm sorry, would you state that again?

Mr. Norman B. Smith: My contention is that the vital question is the second question of whether or not in spite or your scruples you could go on and give both the state and the defendant a fair trial on the issue of guilt or innocence.

If you can do that in spite of your scruples we contend the juror should be ceded and no challenge for cause should be allowed because we believe that the right of a fair trail attaches on this primary issue of guilt or innocence and the state's right to seek the death penalty must be subordinated to that.

Now --

Chief Justice Earl Warren: Well, I under -- I didn't understand that to be Justice Black's question.

Justice Black, I thought, asked you if a juror said that he could not bring in a capital verdict in this or any other case because of his conscientious subjections, and you said that you thought in those circumstances that there would be error for the court to excuse him that.

Mr. Norman B. Smith: By capital verdict, I understood Mr.Justice Black to mean a verdict of guilty without recommendation of mercy.

Justice Hugo L. Black: I meant --

Chief Justice Earl Warren: Well, that means it's a capital verdict, isn't it?

Mr. Norman B. Smith: But I'm trying to distinguish between the jury's function in recommending or not recommending mercy.

That is determining whether or not there will be like imprisonment and its function of adjudicating guilt or innocence.

And if this juror, this prospective juror said that he could give the state and the defendant a fair trial on the issue of guilt or innocence, in spite of his scruples against death -- the death penalty, then he should be ceded.

Even though he says in no case can I impose the death penalty and --

Justice Hugo L. Black: I don't understand that.

Do you say, “Even though he said there's no case would he impose a death penalty”?

Mr. Norman B. Smith: Yes, Your Honor.

I think it's been demonstrated that in many instances, a juror who has opposed to the death penalty would nevertheless be willing to vote on the guilt or innocence issue where the -- with a free and impartial mind in accordance with the instructions given by the judge.

Justice Potter Stewart: What if -- what if --

Justice Hugo L. Black: Just take up the question --

Justice Potter Stewart: Excuse me.

Justice Hugo L. Black: -- as I had it before.

Let's take a juror.

He comes in.

They asked him if he has scruples against the death penalty, he says, “Yes”.

The judge has a long colloquy with you in which he insists that he is qualified because he believes he might impose a death penalty.

The juror continuous to say, “I would not".

What do you say about excusing him as a matter of right?

Mr. Norman B. Smith: Then, at that point, Your Honor, a second question must be asked to the juror.

He must be asked, “In spite of your scruples against the death penalty, can you, on the issue --

Justice Hugo L. Black: Alright, I was giving you one why he'd ask him that?

Why he has to ask him that?

Mr. Norman B. Smith: That he could not give the state --

Justice Hugo L. Black: That he would not, could not and would not impose the death penalty under any circumstance?

Mr. Norman B. Smith: Well, Your Honor, I still think that's a different question because --

Justice Hugo L. Black: Is that not what you have here?

Mr. Norman B. Smith: Yes, sir, but I think they have to ask them another question.

Justice Hugo L. Black: Well, but did you think that when you prepared your certiorari up here or did you cons -- determined that yesterday after you heard this argument?

Mr. Norman B. Smith: Well, it's been my feeling all along Your Honor.

Justice Hugo L. Black: Why is it in your brief?

Mr. Norman B. Smith: Well, it's set out very clearly in my reply brief, Your Honor.

The entire Section 4 beginning on page 10 is directed to that exact problem.

I think I have some reasons that would support this position and I'd like to --

Justice William J. Brennan: And that provision is that there has to be -- even though he had said, "I had never under any circumstances vote to impose the death penalty".

Nevertheless he should then be asked as I understand your position?

But on the issue of guilt or innocence, can you not withstanding those scruples against the death penalty fairly determine whether or not this man is guilty or innocent?

Mr. Norman B. Smith: Yes, Your Honor.

Justice William J. Brennan: That's your position.

Mr. Norman B. Smith: Indeed, that's the holding in the case of Crawford v. (Inaudible) so it's not without some authority.

Justice Potter Stewart: That arises in your jurisdiction because unlike some jurisdictions where a finding of guilt of certain offenses results automatically in the imposition of the death penalty, in your jurisdiction, it's up to the jury to select the penalty to be imposed with this --

Mr. Norman B. Smith: Yes sir.

Justice Potter Stewart: -- certain rather broad limitations.

What is the jury's function?

This is a rape case in North Carolina, now what can the jury do after finding the defendant guilty?

Then what --

Mr. Norman B. Smith: Oh, I --

Justice Potter Stewart: -- discretion is allowed the jury?

Mr. Norman B. Smith: The jury then, I assume -- I've been in a jury room but I assume they find him guilty or innocent first and --

Justice Potter Stewart: Yes.

Mr. Norman B. Smith: -- assuming they find him guilt --

Justice Potter Stewart: Well, (Voice Overlap) they find him guilty --

Mr. Norman B. Smith: -- guilty.

Justice Potter Stewart: Then what do they do?

Mr. Norman B. Smith: Then they go on and consider whether they will recommend mercy.

That's the language we used, “recommend mercy” and this recommendation is binding on the court.

Justice Potter Stewart: And if it's a recommendation of mercy, then the court does not have any power to impose the death penalty?

Mr. Norman B. Smith: Yes, Your Honor.

And it --

Justice Potter Stewart: If there's no recommendation of mercy, does it -- is the court required to impose the death penalty?

Mr. Norman B. Smith: Yes, Your Honor.

The court is without discretion in that case so (Voice Overlap) --

Justice Potter Stewart: Required to impose the death penalty.

If there's no recommendation of mercy then what discretion does the court have, the judge have?

Mr. Norman B. Smith: None.

He must sentence to life imprisonment.

This is not --

Justice Potter Stewart: Well, on the conviction for rape, the most lenient sentence that can be imposed is imprisonment for life, --

Mr. Norman B. Smith: Yes sir.

And --

Justice Potter Stewart: -- is it?

Mr. Norman B. Smith: Yes sir, for rape.

Justice Potter Stewart: That's what we're talking about.

Mr. Norman B. Smith: Now, there are lesser included offenses and as a general rule, indeed in this case, the judge will charge with lesser included offenses: assault on a female, assault on battering, so forth and so on.

And these instances, of course, you get usually the ten-year maximum of -- for felony imprisonment.

Justice Potter Stewart: Well, has this situation never is in your state a jury in a rape case returns to the judge, were unanimously agreed that the defendant is guilty but we cannot reach agreement on whether or not to recommend the life sentence or recommend mercy I gather is your language?

Mr. Norman B. Smith: And they stay stuck on that.

You mean (Voice Overlap) --

Justice Potter Stewart: Yes, what happens then?

Has that happened, number one?

Mr. Norman B. Smith: That has not happened.

There is dictum by our Supreme Court that we would follow the Ambrose case decided by this Court, decided in the briefs here requiring unanimity on both issues.

Justice Potter Stewart: Well, now what does happen there?

Is there a mistrial?

Mr. Norman B. Smith: A mistrial.

And there are other alternatives to this result which I would suggest are avenues that the state can pursue in the event that petitioner is awarded the relief which he request.

I think for instance you can require the -- be reversed that there'd be a --

Justice John M. Harlan: You got to -- are you going to save anytime for your second point, your search and seizure point?

Mr. Norman B. Smith: Yes, sir, I am.

I -- I think that --

Chief Justice Earl Warren: Oh, I'd like to ask you one more question about this, Mr.Smith.

In your state, for a juror to qualify, must he say that he would be willing to set aside any preconceived ideas that he might have of the law and follow the instructions of the court as to the law not withstanding?

Mr. Norman B. Smith: Yes.

Yes Your Honor.

Chief Justice Earl Warren: How could a man who said, “I will under no circumstances bring in a capital verdict” if the judge instructs him that this is a proper case in which such a verdict can be brought in under the law?

Mr. Norman B. Smith: Well, I would suggest, Your Honor that he would still feel himself free to join with the other jurors and find the defendant guilty.

And then when it comes to the penalty phase of the deliberations, he would refuse to join the other jurors in failing to recommend mercy and he would come back in and possibly hung the jury.

On the other hand, it's possible that he could be talked out of this position.

And I -- of course, if the mechanics of the jury, the deliberation process are still I suppose quite much of a mystery, I don't think we know a lot about it.

But it appears from the results in cases that hung jurors are relatively few when it -- it's either some kind of a compromise that's worked out such as a lesser included offense possibly or the moral persuasion of the majority and finally bends the will of the minority on the jury.

I think this is a usual thing.

It happens all the time.

Justice Potter Stewart: What are your reasons for suggesting that your client doesn't get a fair trial when these jurors were excluded -- are excluded for these reason, which is -- relates only on the penalty?

Mr. Norman B. Smith: Yes, sir.

Well, first of all, Your Honor, I point out that it's a large group.

And secondly, I tried -- attempt the juxtapose the interest of the state, which I say is relatively slight in it that for few executions are ever carried out and this interest of the state is a very, very small one.

They only executed one person say in 1966 in a handful in the few years proceedings.

And so we rely --

Justice Potter Stewart: Of course that cuts both ways, I suppose.

Mr. Norman B. Smith: Yes, sir.

We rely on this studies, I crossed on Wilson, Goldberg and Zeisel coincidentally which are to some extent in the public domain, I realized that was questioned yesterday but they have been cited on the basis (Voice Overlap) --

Justice Byron R. White: You mean in the terms of the type -- in the terms of the type of person that is left on the jury --

Mr. Norman B. Smith: Yes sir.

Justice Byron R. White: -- (Inaudible) are excluded?

Mr. Norman B. Smith: But the very --

Justice Byron R. White: But what's the -- what interest did the defendant has violated --

Mr. Norman B. Smith: Well, I --

Justice Byron R. White: -- under the consti –

Mr. Norman B. Smith: I think --

Justice Byron R. White: -- what caused the constitution --

Mr. Norman B. Smith: Our claim, it's an equal protection violation and a due process violation and a deprivation of the impartial jury right.

Justice Byron R. White: Well, what --

Mr. Norman B. Smith: And the important thing --

Justice Byron R. White: Deprivation of an impartial jury?

Justice Potter Stewart: Mr.Smith, you have a very interesting and important second point in this case.

I hope that (Voice Overlap) --

Mr. Norman B. Smith: Yes Your Honor.

Justice Potter Stewart: -- I hope you're taking your time to get to it.

Mr. Norman B. Smith: I'm going to move on if I may only say one more thing.

Justice Byron R. White: Well, I would just like to -- you should finish your answer with my question --

Mr. Norman B. Smith: Yes sir.

Justice Byron R. White: -- if you don't mind.

Mr. Norman B. Smith: The important thing about these studies is the -- you don't have to accept or to prove --

Justice Byron R. White: I think -- I just want to know what provision of the constitution you're claiming -- this isn't a Sixth Amendment claim?

Mr. Norman B. Smith: Yes, sir.

We claim three things, Your Honor: the Sixth Amendment, which is applicable to the states and in accordance with this Court's decision in Parker versus Gladden and the Fourteenth Amendment due process clause; and the Fourteenth Amendment equal protection clause.

Justice Byron R. White: Well, how was it a due process violation?

Mr. Norman B. Smith: Because the fact-finding process itself, the integrity of the fact-finding process is impugned.

And we --

Justice Byron R. White: By what?

Mr. Norman B. Smith: By the exclusion of jurors who are likely, who are less likely to be prosecution (Voice Overlap) --

Justice Byron R. White: And how is it an equal protection claim?

Mr. Norman B. Smith: Well, it's a very related question, Your Honor, but it's an exclusion of a class of jurors which is injurious to the defendant.

I think the important thing in it --

Justice Byron R. White: That falls down to the same argument, I guess, doesn't it?

Mr. Norman B. Smith: Well, I think it does.

I think these are related arguments.

I think that's what the Fourth Circuit ultimately determined.

I guess I better talk about the search and seizure for in the moment.

The defendant was arrested on the day after the search.

I made a misstatement of that fact in the brief.

I said the -- vice-versa but the search was before the arrest.

The defendant lives with his grandmother who was a 66 years old Negro widow who lived at the end of a one mile dirt road in the rural section of Alamance County, North Carolina.

I've been down that road and it's quite generous to call it a road because it's a pretty rough track.

The point I suppose, is it is an isolated place and at the time the officers came, four of them and four sheriffs in a sheriff's car, all white, the grandmother was -- at the house along with some of her infant grandchildren not including the defendant who was 18 but some younger children and her adult son was away from the house.

These officers came up to the door.

This woman is elderly and I think that if -- from reading the record, you can indicate -- the record indicates she's deficient in education.

And the officers pulled out some kind of a paper and presented it to her instead they had a warrant or a notice or something.

She called it a warrant on one occasion, notice on the other for searching her premises.

They didn't explain why they were searching or on what connection and she acquiescently opened the door and stepped aside and said, “Alright, come in, you may search” and they did.

And they looked around in the house and found in the kitchen, which was a common room of the house, a rifle, which was a common article of the household.

I suggest owned and possessed among all the individuals in the household including the defendant.

This rifle was seized and taken and it later became material evidence in the case.

They also stripped some of the clothing of one of the 14 year old grandson who was present.

His clothing, however, was later returned and not used in the trial.

Incidentally, it didn't match the kind of clothing that the defendant supposedly wore on the occasion in question anyway.

This matter was brought up to trial by a motion to suppress and I tendered an affidavit by the grandmother explaining these things which I have just set out, this one.

And then attended to her as a witness and she was cross-examined by the Solicitor and in -- on a redirect and I supposed, would say I examined her again and she testified to me the essential --

Justice John M. Harlan: Does the record show what the piece of paper was?

Mr. Norman B. Smith: No, sir.

The piece of paper is nowhere in the record and what the Solicitor did, and it could be found on page 43 of the appendix of the -- the Solicitor said to the judge -- I see my time is --

Chief Justice Earl Warren: You may have five minutes more Mr.Smith.

You may have five more minutes left as to what you must fill in if you wish.

Mr. Norman B. Smith: Thank you, Your Honor.

The Solicitor said that the court of the state is not relying on the search warrant and the court said, “Are you so stating for the record” and the Solicitor said, “Yes, sir”.

And then I said, “Then we're concerned only with consent” and the court indicated we were.

So the warrant was never introduced, not part of the record.

And the Solicitor never at any time relied on it.

Yet, I contend that the officers relied on it at the time they made the search.

This woman thought she was yielding to a search by warrant, an official warrant, brought by officers of the law.

Justice John M. Harlan: What did the court find?

Mr. Norman B. Smith: The court found --

Justice John M. Harlan: That there was a consent?

Mr. Norman B. Smith: That there was voluntary consent to the search and it was upheld by the Supreme Court of North Carolina.

Justice William J. Brennan: You say we should've said that finding?

Mr. Norman B. Smith: Yes, sir, I certainly do.

Justice William J. Brennan: Oh, if there was -- do you think this woman could consent for the petitioner?

Mr. Norman B. Smith: Well, I don't raise that point, Your Honor.

I'm inclined to think that she could.

Justice Potter Stewart: Oh, if the woman said this was her rifle?

Mr. Norman B. Smith: Yes.

Justice Potter Stewart: She was -- it's her home and it's her rifle.

Mr. Norman B. Smith: And the children, of course, live in --

Justice Potter Stewart: That's what I read in the record.

Mr. Norman B. Smith: Yes, sir.

Justice Potter Stewart: (Inaudible)

Mr. Norman B. Smith: And the children of course used the rifle and lived in the home.

They went out hunting rabbits with it and shooting to scare off the mule and things like that which I (Voice Overlap) --

Justice William J. Brennan: Anyway, you don't care to raise that issue anyway --

Mr. Norman B. Smith: I don't think it's a sound -- that my personal opinion is that it's not a sound point.

I say unquestionably there is standing for the petitioner to raise the issue.

But I do think that the woman had the right to consent since it was her house.

Justice Byron R. White: And your point, I gather, is a narrow one that there could've been no consent in the circumstances that the officers represented to her insofar as this record is concerned, this hasn't been substantiated that they had a warrant which authorized them to come and that her consent was worst to what word you used.

Mr. Norman B. Smith: Yes, sir.

Justice Byron R. White: -- by this representation, is that it?

I think that's the point.

And even if leaving that aside, I think the, circumstances of the case were such that given her isolation, age, sex, race and so forth that you have a clear case of implied coercion.

I suggest to the court that the --

Justice Byron R. White: The rule --

Justice Potter Stewart: Its misrepresentation, isn't it?

It's something akin to fraud.

Mr. Norman B. Smith: Well, I argued that in the brief and I say that is --

Justice John M. Harlan: Was there in fact a warrant?

Mr. Norman B. Smith: Sir?

Justice John M. Harlan: Was there in fact a warrant?

Mr. Norman B. Smith: Well, sir, it was never introduced.

I'm going beyond the record now to say that there was a paper writing which purported to be a warrant.

I don't know.

Chief Justice Earl Warren: Issued by the court?

Mr. Norman B. Smith: Issued by a magistrate.

And I don't know whether it was valid or not.

I argued -- I submitted a brief attacking its validity.

And apparently, the Solicitor felt that it wasn't any good because he didn't use it at the trial.

He quit it and went off on consent.

I suppose if he had any faith in his warrant, he would've presented it to the trial court, it would be a part of the record but it's not.

And I'm going beyond the record to say this but those are the facts as I find the case and I know.

Chief Justice Earl Warren: Was this woman literate or illiterate?

Mr. Norman B. Smith: I think semi illiterate, Your Honor, although again unfortunately, that doesn't appear from the record.

I can say that that reading, the dialogue, reading the testimony would indicate that she was not an educated person.

She clearly didn't have any conception of constitutional law or political science or matters of that nature.

I'm suggesting to the court that Mapp versus Ohio is being evaded and detoured perhaps by the excessive use of this device of the consensual search.

And if the exclusionary rule which this Court put -- lay down in Mapp is to be preserved that the case is such as Amos and Johnson versus United States must be declared Fourteenth Amendment law, a Fourteenth Amendment law and made applicable to the states.

Taking a phrase from the case of Johnson v. United States granted in submission to authority rather than as an understanding in the intentional waiver of the constitutional right.

Clearly, I think you -- epitomizes the behavior of the woman under these circumstances.

And I don't think her testimony, which is somewhat confused and earning a heat of the courtroom proceedings and under a rather stiff cross-examination.

It was a crowded courtroom of a controversial case.

It takes a lot of pressure.

I don't think that this can be deemed conclusive.

So for these reasons, the petitioner respectfully prays that the court to set aside the conviction of the petitioner and order that he be granted a new trial.

On behalf of the petitioner, I thank the court for hearing the case.

Chief Justice Earl Warren: Thank you.

Mr.McGalliard.

Argument of Harry W. Mcgalliard

Mr. Harry W. Mcgalliard: Mr.Chief Justice, may it please the Court.

In view of all the discussions in the Witherspoon case yesterday unless before I certainly don't want to be repetitious on the jury question.

But I'd like to emphasize one or two points that might help clarify.

In North Carolina we have four capital crimes, first degree murder, arson, first degree burglary, rape.

The punishment as the statute reads is death unless the jury shall make a recommendation of life imprisonment.

In which case, it shall be mandatory that the judge impose by --

Justice Potter Stewart: I thought the jury's recommendation was of mercy?

Mr. Harry W. Mcgalliard: Well, that's the newspaper phrase casually used down there often but our statute does not use the word “mercy” and our judges have continued the harping on the, it's a recommendation of life imprisonment --

Justice Potter Stewart: So it's an explicit recommendation by the jury of life imprisonment?

Mr. Harry W. Mcgalliard: That's correct.

In which case, it is mandatory that a judge impose life imprisonment and nothing else.

Justice Potter Stewart: And otherwise, it's mandatory that he impose the death sentence, (Voice Overlap)?

Mr. Harry W. Mcgalliard: That's correct.

Justice Potter Stewart: Yes.

Mr. Harry W. Mcgalliard: In other words, if they are silent, the death penalty is mandatory.

If they make a recommendation of life imprisonment, that is mandatory.

Now, I think the principle to be decided in this jury case has a great deal more significance for North Carolina in the future of its criminal procedure practices than perhaps the mere question of a single new trial of the man because of a possible error of this -- the search and seizure.

So I'd like to say a little more about this.

As mentioned before, North Carolina does not by statute control the matter of challenge of a juror for cause.

Whether you call it common law or whether it's been judicial practice over the years, certainly by court holding, the first general principle recognized is that a person who has biased may on the challenge be excused for cause which of course in no ways effects his right to take his full number for preemptory challenges which affixed by statute.

Now, in our court, I -- but I'd like to say this, not only does the statute not cover it but actually our Supreme Court in North Carolina has not had squarely presented to it the question of how far must you prove the man who originally says he has opposed the capital punishment.

In order to reach a point where he may be disqualified by challenged for bias.

But the assumption, underlying assumption as I read it in our court decisions, is that they assume he has been examined to the point that he could not in this particular case under any circumstances imposed the death penalty.

Now the judge writing the case in the opinion below uses this sentence: Where a juror states in advance that under no circumstances would he accept the contentions or positions of a party which in this case would be the imposition of the death penalty.

He is not impartial to that party but as a corollary, he must necessary be partial to the adversary.

And in this opinion below in the Bumper case, the judge did not discuss at much length to this but made great reference to a case a few months or few years earlier.

The Charles case in which Chief Justice Parker wrote at length on the disqualification of the juror by reason of bias that he was opposed to capital punishment and Judge Parker there again assumed also apparently that we are talking about situation where the man has said, “I cannot in this case” under any circumstances.

Not just a general -- I'm opposed to capital punishment attitude.

And there again, the judge below holding Judge, the Chief Justice Parker, who in terms quoting ALR "upon the theory, the conscientious scrupulous against infliction of the death penalty under any circumstances or equivalent beliefs equally disqualify a jury for cause of prosecution for a corrupted crime for so long.

So I think we can fairly say that although the question hasn't been presented in exactly that fashion our court has adopted the position that it does not make this test, that it was much discussed in the Witherspoon case.

Now as -- going a little further to the practice, defense counsel, I suggested that every juror was questioned to that point in this case.

I think in all fairness to him of the 16 excluded, perhaps two of them were questioned quite that far.

Two of them, one of them merely said, “I do not believe in capital punishment”.

It's Ms. (Inaudible) record page 19 and Ms. Fuller record page 16.

I have conscientious or religious group was against the imposition of the capital punishment.

That they all --

Justice Byron R. White: Were they all present when the others were questioned?

Mr. Harry W. Mcgalliard: Yes, sir.

They were all -- (Inaudible) I don't know.

I assumed they were, one of the large group.

They were, counsel said.

Now I take it, if there's error, it would be in a systematic exclusion of a group.

And I think, in the light of what our Supreme Court has said, the court practice in this case of 14 of the 16 were excluded only when they did make this proper test that we could not well say that an error as to two indicated in a systematic exclusion on the part of the state or the court system.

Certainly, the trial judges, as far as I know, the prosecuting attorneys --

Justice Byron R. White: Are you suggesting that as to those two, there was a constitutional error?

Mr. Harry W. Mcgalliard: I -- of course, I'd be willing to -- although it's necessary, I don't think North Carolina's point of view, I'd be willing to go much farther.

Yesterday -- I mean not yesterday, in line with the arguments yesterday and take the view, there's enough bias perhaps just in those expressions.

But I'm saying that for the sake of argument even if we should say that is error as to those two.

I don't think it's a type of error that shows a systematic exclusion of a nature which should result in sending the case back.

Justice John M. Harlan: What did you say (Inaudible)?

Mr. Harry W. Mcgalliard: I beg your pardon?

Justice John M. Harlan: What did they two jurors say?

Mr. Harry W. Mcgalliard: Mrs. (Inaudible) says, “I do not believe in capital punishment”.

Ms. Fuller, the other says, “I have conscientious or religious scruples against the imposition of capital punishment."

Justice Byron R. White: But do I understand, Mr.Galliard -- McGalliard, we have -- this is on the premise that in effect your court decisions have said that this is a problem tailored made to the particular case and the particular veniremen and that the exclusion is only on the situation where it is in fact developed that the veniremen -- and he says, “And under no circumstances could I impose a death penalty."

Mr. Harry W. Mcgalliard: That is my understanding of the practice.

That is what I regard as the proper inference from what they have -- say it.

Justice Byron R. White: And you suggest that in this case, as to all but two at least, that's in fact the course of the inquiry took of the respective jurors.

Mr. Harry W. Mcgalliard: That is true.

The evidence of the voir dire examinations of all 16 are set out in the appendix.

I examined them carefully and those two, it seems to me, perhaps did not make full test of being pushed all the way.

What I'm --

Justice Byron R. White: Well, are you suggest -- you suggest that, as I understand it, that in that posture both of your law and but actually happened in this case, that precludes any constitutional area placed on a theory of systematic exclusion?

Mr. Harry W. Mcgalliard: I don't think --

I don't think that's evidence of systematic exclusion.

Justice Byron R. White: Right.

But aren't -- their other -- their two other propositions that are suggested, I think, by Mr.Smith.

The due process argument that this goes to the infection of the find -- fact-finding process --

Mr. Harry W. Mcgalliard: That it --

Justice Byron R. White: -- and the other is the Sixth Amendment argument, fair trial.

Or are they all the same --?

Mr. Harry W. Mcgalliard: Well, I take it that he appeals to those constitutional protections and principles as a basis for fighting systematic exclusion and not proceeding --

Justice Byron R. White: Not independently?

Not independently of the systematic exclusion in order to --

Mr. Harry W. Mcgalliard: I had not so understood but I maybe thereon -- maybe I should not --

Justice Byron R. White: Well, suppose that -- if it --

Mr. Harry W. Mcgalliard: -- simply interpret his --

Justice Byron R. White: If we are to understand him as saying that independently of a systematic exclusion, equal protection argument, I rely on these other two, what's your answer to those?

Mr. Harry W. Mcgalliard: Well, my answer to those is that after all, there's no suggestion that the jurors he in fact later got and who tried him were qualified.

And that the constitutional error or the fault with a state system in jury exclusion is because of the states proceeding to -- in a wholesale fashion exclude a group because of national original or race or religion or economic situation and that having those such systematic exclusion and none being argued for, the mere fact that one or two instances, the judge may have wrongly excused a particular person is not the type of situation that would invoke the protection of this Court would be my argument on that.

Justice Abe Fortas: May I ask you, how many people were executed in North Carolina last year or some other year, do you know?

Mr. Harry W. Mcgalliard: I checked back for ten years.

In ten years, there have been two.

One of those was in 1958.

That was for rape.

I handled that in our own Supreme Court, certiorari denied, I believe in this Court.

Then, there was one for rape and murder in 1961.

They are the last two in the even ten years.

I did -- they have statistics back with that but did not bother to bring them with me.

Justice Abe Fortas: May I --

Mr. Harry W. Mcgalliard: We now have four on death row if you were interested in any further --

Justice Abe Fortas: Do you know as compared with that, how many verdicts were returned or recommendations made or whatever the correct phrase is by juries to -- that the capital punishment should be imposed --

Mr. Harry W. Mcgalliard: And -- I'm not sure.

Justice Abe Fortas: -- in those ten years?

Mr. Harry W. Mcgalliard: Or you mean, did they -- how many verdicts were returned that would've resulted in the death penalty had not something in the way --

Justice Abe Fortas: Yes, that --

Mr. Harry W. Mcgalliard: -- of new trials or executive clemency?

Justice Abe Fortas: Thank you, yes, sir.

Mr. Harry W. Mcgalliard: I'm not sure but there were several.

Justice Abe Fortas: There were --

Mr. Harry W. Mcgalliard: There are several.

Justice Abe Fortas: There could have been more than two?

Mr. Harry W. Mcgalliard: Yes, yes sir.

Justice Abe Fortas: I -- as I understand Mr.Smith's argument, it is to the effect that a state has a very little interest as compared with the interest of defendants because of -- you've had only two executions in the last ten years.

And I supposed that it would be arguable that the state's real interest, really substantial interest here may not be so much in obtaining capital punishment as it is in selecting jurors who have a kind of a predisposition towards bringing in a verdict of guilty regardless of the penalty.

Now, what do you say to that?

Is this a question in your judgment and experience?

Does this question with respect to scruples about conscientious -- about the attitude towards capital punishment?

Does that question in your judgment in fact served to get into the jury box more people who are disposed to bring in a verdict of guilty?

Mr. Harry W. Mcgalliard: I have a run down on all of those access, what happened on this other -- there were about five or six, maybe eight new trials resulting in life sentences at the second trial.

One instance, one man was committed to life.

There might have been ten cases where new trials -- one, the Elmer Davis case which was up here resulted in nothing because the principal evidence was a confession which was held improper.

Now to come back to your question, I suppose what's your aiming at now is what the petitioner's counsel has described as a conviction prone attitude of people who are not opposed to capital punishment as against the opposite.

Justice Abe Fortas: Yes, and I take it that implicit in his argument as a suggestion that that's the real objective or one of the real objectives of the question about conscientious or religious scruples.

Mr. Harry W. Mcgalliard: I take it that -- I don't know and I don't think he knows.

And I don't think the studies have been made are adequate to draw conclusions as to whether people who are the ones I'm familiar with, the ones petitioner to counsel has cited in his brief and referred to do not go far toward convincing me.

I think they are taken from small, selected, unrepresentives group -- unrepresented groups.

The numbers involved are numerically small.

There are conclusions, to me, would be about it, a petty thing upon which to base such a broad conclusion as to the psychological attitudes and predilections of what, 80 million people (Inaudible) make the 120 might be subject to jury service.

Justice Byron R. White: Were any of these put in evidence in this record?

Mr. Harry W. Mcgalliard: One of them was or may be more were filed to -- were filed and came along to our Supreme Court as exhibits.

Justice Byron R. White: They were filed -- they were -- it didn't --

Mr. Harry W. Mcgalliard: I'm not sure.

Where they filed was the Georgian trial court.

Justice William O. Douglas: And only at the appellate level?

Mr. Harry W. Mcgalliard: Only at the appellate level.

Justice Byron R. White: So there was no -- these people hadn't appeared personally or something like that?

Mr. Harry W. Mcgalliard: No sir.

These were references in -- of the -- in part of these manuscripts but in part to --

Justice Byron R. White: Published?

Mr. Harry W. Mcgalliard: I believe that's correct.

And as far as I'm personally concerned, I reject the whole idea.

I don't think, I -- of course, I'm a poor judge myself and I don't think I'm anymore conviction prone because I do not have a last ditch opposition to capital punishment.

But I don't think we have yet reached that point: I -- where you concede, (Inaudible) and others show that, perhaps the majority of the American people at present take your position “opposed to capital punishment”, whatever that means.

Well, I'll oppose to it if there's a way to effectively organize our prison systems, our parole systems and what not to -- maybe keep out of circulation indefinitely some known dangerous types at the systems at present don't effectively occur.

But on that, all I could say is certainly not proven so far as I am concerned that those of us who do not oppose capital punishment or authoritarian or they've got pages of attitudes of what we are and I --

Unknown Speaker: Counsel, are we going to get to search and seizure?

Mr. Harry W. Mcgalliard: Yes, sir.

Chief Justice Earl Warren: Just before --

Unknown Speaker: But, I have --

Chief Justice Earl Warren: Oh, pardon me.

Had you finished --

Unknown Speaker: Sir?

Chief Justice Earl Warren: Had you finished your --

Unknown Speaker: No sir, I just to ask him where is the search warrant?

Mr. Harry W. Mcgalliard: Let me say this.

I gathered from Mr.Justice Harlan's question a while ago and yours.

If this takes me out of the record of course, I can tell you what I've found out about the search warrant if you want me to.

Chief Justice Earl Warren: Mr.McGalliard, before we get to that, may I ask you just one question in the procedure.

As I understood Mr.Smith, it is his belief that if the jury could not agree on whether there should be the death penalty or life imprisonment should be imposed that the defendant would be entitled to a new trial.

I understood him say that for instance if one juror held out against capital punishment that that would have to result in a new trial.

Is that the situation?

Mr. Harry W. Mcgalliard: I understood defense counsel to say he believed that to be true on the basis of a dictum.

I have no current recollection of the dictum.

The situation, so far as I know, has not arisen but I rather think and I have nothing here to cite, I rather think that the situation is this: the jury is instructed first to consider guilt or innocence.

If they return a verdict of guilty, then they're instructed to consider whether they will recommend life imprisonment or not.

I think once they voted guilty, they have a verdict of guilty and would come out with that and could only come out with a recommendation of mercy or life imprisonment rather if they all agree.

I'd rather think that might be but I don't think either if it would say that North Carolina has decided that.

Chief Justice Earl Warren: Do you think you could enlighten us any by researching that somewhat more?

Mr. Harry W. Mcgalliard: I have been handling great many of this -- it's over 200 criminals appeals in the last ten years.

They're in our Supreme Court and I have -- we've only had the recommendation for mercy about 25 years.

I've been in the Attorney General's office longer than that.

Chief Justice Earl Warren: I see.

Mr. Harry W. Mcgalliard: Twenty-five to 30 and this has never crossed my path.

Justice Byron R. White: You must be just about the best authority in North Carolina.

Mr. Harry W. Mcgalliard: No, I find everyday -- I think -- more things I don't know.

Now, coming very quickly and I gathered from Mr. Justice Harlan and Mr. Justice Marshall's question, I frankly was a little annoyed upset when I picked up the record and saw just two things.

First, the officers went into the lady's house and said, ”We want to search.

We have a warrant”, that's as far as the officers went and then I saw: Solicitor says, "Whether you rely on consent, judge by consent.

I didn't even look at that again till the next day because I know this general principle is rather hard to overcome the presumption that the consent was merely acquiescence to the authority of the law under such circumstances.

However that may be, that is what they did and the question is, under those circumstances, is it still possible to consent?

You cannot volunteer a consent to be shown.

The only way I know would be to try to determine the frame of mind of this person, the attitude with which she did or did not consent.

She said, I would pay him much attention.

I told Mr.Stockard, that's the sheriff, that's on page 47 of the appendix, to go ahead and look them -- look all over the house.

I had no objection them making a search on my house.

I was willing to let them look in any room or drawer in my house they wanted to.

And further on: “And I just give them a free will to look because I felt like the boy wasn't guilty."

Justice Thurgood Marshall: Is there any dispute on the record that a piece of paper allegedly a search warrant was shown to this lady?

Mr. Harry W. Mcgalliard: I want them be to be satisfied.

The record, the only testimony on that is that the lady, whose house was searched, say it, “They told me they had a notice or a warrant to search my house.”

Justice Thurgood Marshall: Is that disputed in the record?

Mr. Harry W. Mcgalliard: That is not disputed in the record.

Justice Thurgood Marshall: If there was a search warrant and it was a valid search warrant, that were to settle that issue, wouldn't it?

Mr. Harry W. Mcgalliard: That it would.

Justice Thurgood Marshall: (Inaudible) wouldn't it?

Mr. Harry W. Mcgalliard: That it would.

Justice Thurgood Marshall: Well, what conclusion they had drew that it was never produced at the trial?

Mr. Harry W. Mcgalliard: It was not produced at the trial.

As I understand --

Justice Thurgood Marshall: What conclusion could I draw from that?

Mr. Harry W. Mcgalliard: If I had nothing else to go on and I think you're bound by the record, I would take it they either had a defective search warrant or no search warrant --

Justice Thurgood Marshall: They'd be --

Mr. Harry W. Mcgalliard: -- be my conclusion.

Now I was curious enough, as Mr.Justice Harlan has asked, was there a piece of paper?

Now I did not know whether you meant me to answer that by going out of the record or not.

Justice John M. Harlan: (Inaudible) My understanding of this case was that there is a misrepresentation by the officers that they have a certain search warrant, it wasn't a search warrant at all, maybe I got that outside of the record but that's (Inaudible).

Mr. Harry W. Mcgalliard: Well, I was curious enough finally after certiorari was granted.

I called the Solicitor asked him, “What was going on?”

I said, “Why -- what's wrong with your search warrant I seem to have what I didn't think they are also rely on but I'm seeing -- do something wrong with the warrant.

He said, “Well, that's months ago.

I don't remember now why I don't use it” said the lady consented.

If you could've seen the way she talked, how open, cooperative she was in the courtroom with -- not thinking about they had any question about his being a genuine consent.

I said, there was something wrong with the warrant.

He said, “Well, I have to look it up”.

He said, “I'll send your copy”.

So the next morning in the mail, I get an -- Xerox, I guess it is copy of the search warrant.

With this note from the Solicitor enclosed by (Inaudible) search warrant in the case State against Bumper about which you called today.

I remember now why I elect you to go on a consent to search basis.

After Mrs.Leath, told the officers they didn't need a search warrant, they didn't serve it.

Please pardon the informality and without (Inaudible).

There -- at the place where the officers returned with ordinarily be filled in that we own this day search, a such a place and found such argument.

There is nothing.

I would argue, I don't know how far it would get on --

Justice Byron R. White: For that letter, a little -- the last part of that little fast.

I didn't get the last.

Mr. Harry W. Mcgalliard: I remembered now why I elected --

Justice Byron R. White: Yes.

Mr. Harry W. Mcgalliard: -- to go on a consent to search basis.

Justice Byron R. White: Yes.

Mr. Harry W. Mcgalliard: After Miss Leath, that's the lady in question, told the officers they didn't need the search warrant, they didn't serve it.

Justice Potter Stewart: They didn't?

Mr. Harry W. Mcgalliard: Serve it.

Justice Potter Stewart: Serve it?

Mr. Harry W. Mcgalliard: Serve it.

Justice Potter Stewart: I thought you said --

Mr. Harry W. Mcgalliard: Of course the Solicitor's notion and my notion of service are two different things.

I take it once you have a search warrant, announced you have it and proceeds search with it, and that's an adequate service unless the person they're in charged demands that it would be read.

I would argue under Ms.Leath's testimony that they served -- that they served this at a -- in a subsequent trial, they wanted to show the validity of the search.

And it's ruled out that there was no -- I mean, ruled that there was no consent here.I'd like to go a little --

Chief Justice Earl Warren: Did they make a return of this search warrant in due course?

Mr. Harry W. Mcgalliard: It's absolutely blank.

Chief Justice Earl Warren: They did not?

Mr. Harry W. Mcgalliard: Does not say, received this day, I mean the form was error, received this day, I entered so and so where I found, so that's --

Chief Justice Earl Warren: That was -- was that -- this is not a record of the court then in (Voice Overlap) --

Mr. Harry W. Mcgalliard: No, sir.

This is simply -- the prosecuting attorney, we call it solicitors, sent me a copy of the search warrant because of my annoyance with him and talking to him over the phone.

So it's off the record, as I say and I was very careful to inquire whether you wanted me to discuss it.

But that's what I found out in my own satisfaction.

I'd like to move one --

Chief Justice Earl Warren: Could you tell me where in the record she said, “You don't need any search warrant for me”.Is that in the record?

Mr. Harry W. Mcgalliard: I don't find the Solicitor's words in the record.

The strongest words I found on the record are the ones I just read before such as “I gave them a free will to look because I felt like the boy wasn't guilty.

I wanted them to be satisfied.

I had no objection to the making of search of my house”.

Now all of that's on page 47 of the appendix.

Chief Justice Earl Warren: But as far as you know, there's nothing in the record that says that they didn't need that search warrant.

Mr. Harry W. Mcgalliard: No, that was the officer's conclusion from apparently the he is stating that they didn't need it because when they walked in they apparently -- they --

Justice Hugo L. Black: That's what he said, wasn't it?

Mr. Harry W. Mcgalliard: I beg your pardon?

Justice Hugo L. Black: That is absolutely what she said, wasn't it?

Mr. Harry W. Mcgalliard: That's --

Justice Hugo L. Black: That he didn't -- they didn't have to have a search warrant.

Mr. Harry W. Mcgalliard: That's what I said.

Justice Hugo L. Black: You mean -- alright.

Mr. Harry W. Mcgalliard: I think this language is susceptible to that interpretation that --

Chief Justice Earl Warren: But isn't there -- there is quite a difference between saying, “You didn't have to have any search warrant” on the one hand and saying, after they told her that they had a search warrant, saying “Well, I have no objection to you, to you searching my place” there's quite a difference between (Voice Overlap) --

Mr. Harry W. Mcgalliard: Well, I thought it's rather significant that apparently neither the prosecution or defense counsel cared to put apparently that question directly to her which would've settled it.

Whether the search warrant made any difference or whether she was consenting with or without it, neither side cared to ask her the very appointed question that could've helped resolve the issue.

Justice William J. Brennan: But the fact is that the -- all of this happened after the officers told her that they had had a search warrant?

Mr. Harry W. Mcgalliard: That's as (Voice Overlap) --

Justice William J. Brennan: I gather that --

Mr. Harry W. Mcgalliard: For about the first thing the officers said (Voice Overlap) --

Justice Potter Stewart: That's about the first thing they said, they had a search warrant.

Mr. Harry W. Mcgalliard: I think that's true.

Justice Potter Stewart: So a little different to be cooperative and agreeable when you've told by the officers they have a search warrant.

Mr. Harry W. Mcgalliard: That's true but she had yet --

Justice Potter Stewart: Well, when you didn't -- when they didn't have one.

Mr. Harry W. Mcgalliard: She -- although we are here to qualify it but said, “I gave them a free will to look because I felt like the boy wasn't guilty.

I want them to be satisfied.

I have no objection of making the search”.

And she says all of that.

I don't know that that is mere acquiescence to the authority of the law.

Justice Abe Fortas: Well, why do you suppose the officers said, “We've got a search warrant”?

Mr. Harry W. Mcgalliard: I think the officers had the search -- here's what I think.

I think they had one.

I think they went in.

I think here was this elderly lady and they had a search warrant in his pocket, say, "We got a search warrant, we're going to search your house."

Said, “Go ahead, help yourselves, go right in."

Justice Abe Fortas: Well, what would happen she has said, "Well, I don't want you to search my house anyway”?

Mr. Harry W. Mcgalliard: Then I think that they said, “Well, we have a paper writing here.

You have to let us”.

Justice Abe Fortas: And then she wasn't able to read were she?

Mr. Harry W. Mcgalliard: I don't know.

Justice Abe Fortas: Does the record show?

Mr. Harry W. Mcgalliard: I don't know.

I gather that the literacy was not great if any.

I don't know.

Chief Justice Earl Warren: Well, under your law, must a search warrant be returned after they served --

Mr. Harry W. Mcgalliard: They --

Chief Justice Earl Warren: -- return to the court?

Mr. Harry W. Mcgalliard: I think there's a statutory requirement that it should be returned.

They hold the goods return to keep them subject to the order of the court file the return.

Chief Justice Earl Warren: Right.

Mr. Harry W. Mcgalliard: But I don't know if that filing -- the filling of this (Inaudible), if in fact they did the things as ordered, would be requisite to its validity in court, the mere fact that it did not been properly returned.

Chief Justice Earl Warren: Well, why wouldn't they return it when they did take a gun and took some other things, why wouldn't they return it to the court in accordance with law?

Mr. Harry W. Mcgalliard: I don't know.

I don't know, Your Honor.

I suspect they took it back in through a van so they didn't need warrant at all.

Chief Justice Earl Warren: And this (Voice Overlap) --

Mr. Harry W. Mcgalliard: We had a sheriff and a -- two deputies of the county.

They were accompanied by, I must say in all honesty by agent of the State Bureau of Investigation which is a State Investigating Agents.

Chief Justice Earl Warren: And this document never came to light until after the trial and you wrote to the Solicitor about it?

Mr. Harry W. Mcgalliard: Of the record does not disclose any existence of a search warrant beyond the statement to the officer as relayed by Ms.Leath to the state and of the officer.

Anything else I know is off the record.

As far as I know, it's not brought up.

No search warrant was introduced at the trial.

Chief Justice Earl Warren: What did the officers say at the trial as to whether he had told her that?

Mr. Harry W. Mcgalliard: Apparently, and this surprised me, the only person that was put on the witness stand was the lady in question and when she finished talking, the judge said, “I find there was voluntary consent”.

They thought she had said enough.

They've took her manner, --

Justice Hugo L. Black: What did she --

Mr. Harry W. Mcgalliard: -- her demeanor, and her words is to mean she consented it.

Justice Hugo L. Black: What did she say on the stand?

Mr. Harry W. Mcgalliard: She said, part of what I've just been -- when the officers asked me to let them search, well, I would tell you what I've though about, what went through my mind.

They didn't tell me what they're searching for, what it was all about.

They didn't talk to me at all.

They just went to head.

I had in mind what they was looking for and searching for.

And I felt like well, whatever they was looking for, they had found it.

And I didn't think it amount to anything with the boy.

I just give them a free will to look because I felt like the boy wasn't guilty”.

Justice Hugo L. Black: And is that document a search warrant?

Mr. Harry W. Mcgalliard: This?

Justice Hugo L. Black: Yes.

Mr. Harry W. Mcgalliard: In my opinion, it is a valid search warrant but that's off the record again.

Justice Hugo L. Black: Well -- but it's been talked about here and filed on the notes.

Mr. Harry W. Mcgalliard: Well --

Justice Hugo L. Black: Is there any indication that they went there without a search warrant and deceived her and that's -- to believing that they did have warrant.

Mr. Harry W. Mcgalliard: Not one out of it.

Justice Potter Stewart: Well, so far as the record shows, there's plenty of indication of that, isn't there?

Mr. Harry W. Mcgalliard: I beg your pardon?

Justice Potter Stewart: If we just stuck to the record, that's what the record shows.

Mr. Harry W. Mcgalliard: That they went there without --

Justice Potter Stewart: That there was misrepresentation.

Mr. Harry W. Mcgalliard: No, sir.

Justice Potter Stewart: Oh, I think the --

Mr. Harry W. Mcgalliard: I would interpret that a different way.

I would say they told the lady they have a search warrant.

They went back in the court and said we won't rely on the search warrant.

We think there was consent.

The judge who listened to her and watched her on the witness stand interpreted it as being consent.

And the Supreme Court of North Carolina thought that Judge (Inaudible) findings were justified by the record.

I see nothing to -- from the record they would make you conclude the officers were lying.

There's no evidence of that.

Justice Abe Fortas: So you wouldn't think it was quite or -- in good order would you to for instructions to be issued to the sheriff always go to the premises with the search warrant, inform the occupant that you have a search warrant.

If the occupant then says, “Alright, go ahead and search and don't use a warrant”.

That wouldn't be very good practice for any --

Mr. Harry W. Mcgalliard: Not any that I could instruct --

Justice Abe Fortas: You have the Fourth Amendment?

Sir?

Mr. Harry W. Mcgalliard: No sir.

Not in the light of the decisions of this Court.

I would always use one.

If we're ever to get by the consent question, I have raised in my brief, my time is about up, considerable question as to whether this defendant has any standing to challenge this on the ground that it was his grandmother's premises, his grandmother's rifle, he was not present, as far as I could gather, at the time of the search and the only theory I can think of would be whether we have invaded an area of his privacy in that he was also domicile in the same home.

But we must remember it was grandmother's rifle and even as suggested here, there's no evidence, members of the family had a free right to use grandmother's rifle and she said it was her rifle.

I don't believe there's any implied permission to take the rifle and go after to commit two capital offenses of rape and two attempted murders.

And we don't think his area of privacy was invaded.

Chief Justice Earl Warren: Would you mind leaving that document with the clerk of court, please?

Mr. Harry W. Mcgalliard: Alright.

Shall I leave this Solicitor's note with it?

Chief Justice Earl Warren: Yes.

Gentlemen, before we conclude the cases, I said yesterday we -- the court appreciates the service that lawyers rendered in defending indigent defendants and we do appreciate your service in this case.

And Mr.Smith and --

Mr. Harry W. Mcgalliard: Thank you.

Chief Justice Earl Warren: -- Mr.McGalliard, I would say that the court equally appreciates the frank and fair manner in which you have helped us in presenting your side of the case on behalf of the state.

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