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.36-45 (McGautha v. CA) A Short History of the DP Antecedents of the American DP in Antiquity and in England o Antiquity throughout history, societies have killed criminals as punishment for their transgressions. Death has been ultimate weapon v. disorder. o England English common law, Americans legal ancestor, recognized 8 capital crimes (treason, murder, larceny, robbery, burglary, rape and arson). By 1820, more than 200 capital crimes. 1965, England abolished the DP. Death Penalty in America o DP has been part of American criminal justice system since founding of British colonies. Recurring abolition movements throughout American history. From Colonial Times to the Civil War o The Colonies English settlers carried DP to America, but restricted its scope in northern colonies. In 18th century, population grew, so expanded capital punishment laws were way to maintain public order amid increasing diversity. By Revolutionary War, crimes with DP = murder, treason, piracy, rape, robbery, burglary, and sodomy. o Penal Reform Ideas of European Enlightenment of 18th century inspired calls for legal and penal reform. Thomas Jefferson introduced legislation in VA for more proportionate punishments. o Division of Murder Into Degrees End of 18th century, new definition of crime of murder. Invention of degrees of murder gave jury authority to decide that , though guilty of murder, had not acted with sufficient calculation to warrant execution. o Southern States In south, DP linked to slavery. Tool for keeping slave population in submission. Black Codes of many southern states differentiated between capital crimes for black slaves and white people. o Antebellum Abolition Movement In second quarter of 19th century, use of DP increased significantly. Public executions replaced with those behind prison walls and anti-gallows societies organized. Moral and religious arguments dominated public debate about DP. MI, WI, RI abolished DP and de facto abolition in Maine. By start of Civil War, burglary and robbery no longer capital crimes in of states. From Civil War to WWI o Discretionary Sentencing By end of 19th century, discretionary sentencing in capital cases emerged as established feature of American criminal justice system. Under English and early American law, DP was mandatory upon conviction of capital crime. Juries would acquit a guilty but sympathetic to spare him DP. Problem of jury nullification led states to abolish mandatory DP.
McGautha v. CA (1971) Issue: o Whether s constitutional rights were infringed by permitting the jury to impose the DP without any governing standards? o Whether the jurys imposition of the DP in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible? Holding: o No constitutional infirmity in conviction of either petitioner. Accuseds rights not infringed by imposition of DP without governing standards. o In light of history, experience and by present limitations of human knowledge, impossible to say that committing to untrammeled discretion of jury power to pronounce life or death in capital cases is offensive to anything in the Constitution.
Jan. 13: Excerpts, Ogletree on Black Mans Burden: Race and Capital Punishment in America and Klarman, The Racial Origins of Modern Criminal Procedure. Jan. 14: pp. 46-76, Furman v. GA. Furman v. Georgia (1972) Issue: o Does the imposition and carrying out of the DP in these cases constitute cruel and unusual punishment in violation of the 8 th and 14th Amendments? Holding: o The imposition and carrying out of the DP in these cases constitute cruel and unusual punishment in violation of the 8th and 14th Amendments. Facts: o Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death. o Other cases decided with this one are Jackson v. GA, where convicted of rape in GA and sentenced to death, and Branch v. TX, where petitioner convicted of rape in TX and sentenced to death. Douglas (concurring): o Would approve of rewriting the DP statutes. DP is not per se violation of 8 th Amendment, but as applied its the arbitrariness that bothers him. o DP inflicted on one is unusual if it discriminates against him by reason of his race, religion, wealth, social position, or if it is imposed under a procedure that gives room for the play of such prejudices. o 8th Amendment requires legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. o These discretionary statutes are unconstitutional in their operation. Pregnant with discrimination and discrimination is an ingredient not compatible with idea of equal protection of laws that is implicit in ban on cruel and unusual punishments. Brennan (concurring): o 1) Death is unique in its extremity; only punishment that may involve the conscious infliction of physical pain. Unusually severe in its finality and enormity. An executed person has lost the right to have rights. Uniquely degrading to human dignity. Would not hesitate to hold, on that ground alone, that death is cruel and unusual punishment, were it not that death is punishment of longstanding usage and acceptance in this country. o 2) State may not arbitrarily inflict an unusually severe punishment. Death is not ordinary punishment for any crime. When punishment of death inflicted in trivial # of cases in which it is legally available, conclusion is that it is inflicted arbitrarily.
and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment. o Constitution prohibits all punishments of extreme and barbarous cruelty, regardless of how frequently or infrequently imposed. o In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly "cruel" in the constitutional sense. o 8th Amendment cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment. Blackmun (dissenting): o Believes the Court has overstepped o I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. o Were I a legislator, I would vote against the death penalty. o I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. Powell (with Chief, Blackmun and Rehnquist dissenting): o Debates about how truly arbitrary the DP is. Between 10-20% of those charged with death-qualifying murder face DP. o Only if you commit a crime and dont know your punishment is it unusual. o Believes courts decision shatters the principles of stare decisis, federalism, judicial restraint and separation of powers. Capital punishment laws of 39 states nullified o Indicators most likely to reflect publics view legislative bodies, state referenda, and juries which have actual responsibility do not support contention that evolving standards of decency require total abolition of capital punishment. o Argues for judicial restraint impatience with the slowness and unresponsiveness of legislatures is no justification for judicial intrusion upon their historic powers o Of course, the specific prohibitions within the BoR are limitations on the ex. of power; they are not an affirmative grant of power to Govt. I, therefore, do not read several references to cap punishment as foreclosing
this Court from considering whether DP in particular case offends 8 th and 14th Amendments. Nor are cruel and unusual punishments and due process of law static concepts whose meaning and scope were sealed at the time of their writing. They were designed to be dynamic and to gain meaning through application to specific circumstances, many of which were not contemplated by their authors. Rehnquist (with Chief, Blackmun and Powell dissenting): o Courts judgment strikes down penalty Nations legislators have thought necessary since country was founded. o Invalidating laws enacted by Congress and 40 of 50 state legislatures. o Argues that notion of checks and balances should prevail judicial selfrestraint necessary. Courts holding in these cases in complete disregard of that condition Note (p.75) Impact of Furman o Furman decision had enormous effect, invalidating approximately 40 DP statutes and overturning approximately 600 death sentences. o Rivaled only by Roe v. Wade in publicity. Like Roe, didnt resolve basic issue only galvanized opposition, with political and judicial consequences to this day. o After this decision, substantial majority of states immediately passed new DP statutes, and juries began imposing death sentences again.
Jan. 25: CA and GA capital punishment statutes. pp. 896-904 and pp.913-15. California Penal Code (pp.896-904) Statute includes definition of first degree murder: o Murder which is perpetrated in the commission of burglary. o 190.1(a): Question of guilt determined first. If found guilty of first-degree murder, determine at the SAME time all special circumstances charged. o (b): If found guilty of first degree AND one of special circumstances, THEN move on to question of sentencing Trial is bifurcated; determine BOTH guilt of degree murder AND special circumstances prosecution must prove both. 190.2 lists special circumstance factors. o Once a special circumstance has been found (and proven), go to 190.3 to weigh aggravating and mitigating circumstances. o P. 901 list of factors. o If aggravating factors outweigh mitigating, impose DP (p.901 (k). If mitigating outweigh aggravating, impose life. Judge has ability to order new jury in the penalty phase if jury is hung on this. Can summon new jury and begin again OR impose life without parole. CA statute seems exceedingly broad because so many circumstances listed seem to capture all murders. o Similar in some ways to GA, but listing of special circumstances is different. In GA, just aggravating circumstances listed. Once past that, nothing statutory regarding mitigating exists. GA is also NOT a weighing state!
Georgia Penal Code (pp.913-915) Developed by legislature following Furman. o Murder statute didnt change. 16-5-1 is Murder; felony murder. Language for this dates to mid-1800s. GA doesnt have definition of capital murder, just murder that can receive the DP. GA does list aggravating circumstances in 17-10-30. o Includes for offenses of aircraft hijacking or treason. These are cases where no one dies, havent been tested under GA laws or Coker o Lists aggravating circumstances; including depravity of mind. Gabriel wonders if this is catch-all agg. circumstance. Could potentially be void for vagueness. o There is pattern of courts giving expansive reading to criminal statutes. Ex. aggravated battery = causing another person to lose limb/use of part of their body. Courts have interpreted this to mean even temporary loss of use, such as broken jaw that heals. GA doesnt specifically list mitigating factors. o Defense in penalty side humanizes defendant. Talking about life as child, military service, etc. In response to Furman, GA has established bifurcated trial. Set of statutory aggravating circumstances given to jury during sentencing phase. Jury must decide whether prosecution has proven any of those, decide which circumstances exist. o Standard for aggravating circumstances is BEYOND A REASONABLE DOUBT. o If found, jury deliberates on DP. From group thats thus eligible, selection process occurs. Difference between eligibility and selection If all murders put in one circle, some subset of those murders are death eligible (based on something about the murder that makes it elevated from other murders). o Something makes death-eligible murders more heightened. Only out of that pool are some selected, meaning that unless you have the automatic DP, only some of the eligible will be selected for DP. o Channeling = helping decide whether someone who gets the DP ought to get the DP Even smaller circle of those selected for DP are EXECUTED. 100% of murders > eligible > selected > actually executed. Jan. 27: Gregg v. GA, pp.76-92 Gregg v. Georgia (1976) Issue:
o Whether the imposition of the sentence of death for the crime of murder
under the law of GA violates the 8th and 14th Amendments? o More broadly Whether the punishment of death for the crime of murder is, under all circumstances, cruel and unusual in violation of the 8 th and 14th Amendments? Holding: o Punishment of death does not invariably violate the Constitution. DP is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it. o It is possible to construct capital-sentencing systems capable of meeting Furmans constitutional concerns. Facts: o In bifurcated trial, at penalty stage jury found 2 aggravating circumstances. o GA retains the DP in its post-Furman statute for 6 categories of crime: murder, kidnapping for ransom or where victim harmed, armed robbery, rape, treason and aircraft hijacking. s guilt/innocence determined in traditional manner, either by trial judge or jury, in first stage of bifurcated trial. o In sentencing procedure, judge or jury hears additional evidence in extenuation, mitigation, and aggravation of punishment. Only such evidence in aggravation as has been made known to prior to his trial shall be admissible. Judge/jury shall hear argument of and prosecutor regarding punishment to be imposed. o In assessment of appropriate sentence to be imposed, judge required to consider or include in instructions to jury any mitigating or aggravating circumstance otherwise authorized by law and any of 10 statutory aggravating circumstances which may be supported by the evidence. Judge/jury must find beyond reasonable doubt one of the 10 aggravating circumstances specified in statute. Must specify which one found o Provision for special expedited direct review by SC of GA. Determine whether sentence of death imposed under influence prejudice or arbitrary factor; whether evidence support judge/jurys finding of agg circ; whether sentence of death excessive/disproportionate to penalty in similar crimes o If court affirms DP, required to include in decision reference to similar cases. o In transcript, trial judge must test for arbitrariness and disproportionality of sentence. Possibility of executive clemency remains Rules: o 8th Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Assessment of contemporary values concerning infliction of challenged sanction relevant to application of 8th Amendment.
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Notes (p.92-93) o Proffitt v. Florida (1976) Court upheld Florida DP scheme, which like GA scheme, provided for separate evidentiary hearing on aggravating and mitigating circumstances after a was convicted of capital murder and provided for automatic review in state SC of any death sentence, but which differed in other respects Florida = weighing state. At conclusion of hearing jury directed to consider whether sufficient mitigating circumstances exist which outweigh aggravating circumstances found to exist. Jurys verdict determined by majority vote. Only advisory, actual sentence determined by trial judge. Facts suggesting a sentence of death must be so clear and convincing that no reasonable person could differ. Trial judge also directed to weigh. Shall set forth decision and findings in writing upon which decision based and that there are insufficient mitigating circumstances to outweigh aggravating. Death-Qualified o To sit on a capital punishment jury, jurors must be willing to impose the DP. If youre opposed, you cant sit on a jury considering death. Judge removes prospective jurors with beliefs like this. o Question whether capital juries are truly representative
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o Whether the imposition of the sentence of death for the crime of murder
under the law of TX violates the 8th and 14th Amendments? o TX statute doesnt explicitly speak of mitigating circumstances. Directs only that jury answer 3 questions. Constitutionality of TX procedure turns on whether the enumerated questions allow consideration of particularized mitigating factors? Holding: o TXs capital-sentencing procedures, like those of GA and FL, do not violate the 8th and 14th Amendments. By narrowing the definition of capital murder, TX has essentially said that there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence may even be considered. By authorizing to bring before jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual can be adduced, TX has ensured that sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jurys decision in court with statewide jurisdiction, TX has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. o Because this system serves to assure that sentences of death will not be wantonly, or freakishly imposed, it does not violate the Constitution. Facts: o raped and drowned a 10 year old girl. Sentenced under new TX DP statute. o In new TX DP procedure, jury required to answer 3 questions in proceeding that takes place subsequent to return of verdict finding person guilty of murder: 1) whether conduct of that caused death of deceased was committed deliberately and with reasonable expectation that death of deceased or another would result; 2) whether there is probability that would commit criminal acts of violence that would constitute a continuing threat to society; and 3) if raised by evidence, whether conduct of in killing deceased was unreasonable in response to provocation, if any, of deceased. o Jury here considered 1 and 2. Answered unanimously yes to both. In essence, TX requires that jury find existence of statutory aggravating circumstance before DP may be imposed. o 2nd question interpreted by TX Courts to allow to bring to jurys attention whatever mitigating circumstances hes able to show. Rules: o Sentencing system that allowed jury to consider only aggravating circumstances would fall short of providing individualized sentencing determination required by 8th and 14th as seen in Woodson.
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Florida Capital Punishment Statute (pp.904-912) Majority vote by jury. Jurys decision advisory, actual sentence done by trial judge. Trial judge can trump jurys decision. Texas Capital Punishment Statute (pp.916-919) A lot of litigation occurred after Jurek. TX changed its statute again Other Notes o Furman concerns are best met by a system that provides for bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of the sentence and provided with standards to guide its use of the information. *Limit jury discretion. o Doesnt suggest that only above-described procedure sufficient to satify Furman. System could have standards so vague it would fail to adequately channel sentencing decisions. Pattern of results with jury would show arbitrary and capricious sentencing like that found unconstitutional in Furman could occur o Proportionality review, like that in GA, would substantially eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury. Would need facts of other cases for comparison. Court thats conducting proportionality review would look at murder cases with similar facts. o Discretion continues on prosecutorial level decisions over which cases in which to seek DP Feb. 1: Woodson v. North Carolina, plus notes after (Roberts v. Louisiana, Sumner v. Shuman). Pp. 92-103. Woodson v. North Carolina (1976) Issue:
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Roberts v. Louisiana (1976) Issue: o Constitutionality of Louisianas mandatory DP statute which more narrowly defined 1st degree murder than did the NC statute at issue in Woodson? Holding: o This narrower definition of capital murder was not of controlling constitutional significance and it held the statute unconstitutional. Facts: o LA Statute limited 1st degree murder to killings where the killer had a specific intent to kill or to inflict great bodily harm and the killing fell within one of five categories: 1) the killing occurred in conjunction with the commission of the felonies of aggravated kidnapping, aggravated rape, or armed robbery; 2) the victim was a fireman or a policeman in the performance of his duties; 3) the killer had previously been convicted of murder or was serving a life sentence; 4) the killer had a specific intent to kill or to inflict great bodily harm on more than one person; and 5) the killer had been offered or had received anything of value for committing the murder.
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Sumner v. Shuman (1987) Issue: o Court in Woodson left open - Whether a mandatory DP limited to an extremely narrow category of homicide would be constitutional? Holding: o SC held 6-3 that the requirement of an individualized penalty determination applied in all cases and that a mandatory DP, no matter how narrow, was unconstitutional. Facts: o , a prisoner serving a life sentence without possibility of parole as a result of a murder conviction, was convicted of murdering a fellow inmate. Sentenced to death under a LA statute making DP mandatory for a murder by a prisoner serving a life sentence without possibility of parole. Chapter 3: Limiting the Risk of Arbitrariness Furman holding, as understood by Court in Gregg and subsequent cases, was that, to satisfy the 8th Amendment, a DP scheme has to limit the risk of arbitrary application. In Gregg, Proffitt, and Jurek, the Court upheld, on their face, the GA, FL, and TX schemes, but did not explicitly determine which aspects of each scheme satisfied the Furman principle. o In subsequent cases, SC and other courts have attempted to define the limits placed by Furman on DP schemes. Intersection of race and capital punishment has posed challenge to DP system. Studies have established that minorities, particularly blacks, have been sentenced to death in numbers disproportionate to their conviction of capital crimes. When the race of the victim is taken into account, the disparities in sentencing have been substantial. Feb. 3: pp. 109-119 (description of last hours and execution of John Spenkelink); Zant v. Stephens and notes following, pp.122-138. Zant v. Stephens (1983) Issue: o Whether respondents death penalty must be vacated because one of three statutory aggravating circumstances found by the jury was subsequently held to be invalid by the SC of GA, although the other 2 aggravating circumstances were specifically upheld? Answer depends on the function of the jurys finding of an aggravating circumstance under GAs capital sentencing statute, and on the reasons that the aggravating circumstance at issue in this particular case was found to be invalid Holding: o Absence of legislative or court-imposed standards to govern the jury in weighing the significance of either or both of those aggravating
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circumstances does not render the GA capital sentencing statute invalid as applied in this case. o Whether or not jury has concluded that s prior record of criminal convictions merited label substantial or label assaultive, jury plainly entitled to consider that record, together with all the other evidence before it, in making its sentencing decision (despite it no longer being a statutory aggravating circumstance). Facts: o escaped from jail. committed several robberies while on the loose; killed someone by shooting him point blank during robbery. o GAs capital sentencing procedure required jury to find at least one statutory aggravating circumstance and to identify it in writing, and that the state SC reviewed the record of every DP proceeding to determine whether the sentence was arbitrary or disproportionate. o Aggravating circumstance rendered invalid a substantial history of serious assaultive criminal convictions. Rules: o GA has a bifurcated procedure, and its statute also mandates meaningful appellate review of every death sentence. Statute doesnt, however, follow Model Penal Codes recommendation that the jurys discretion in weighing aggravating and mitigating circumstances against each other should be governed by specific standards. Aggravating circumstance in GA performs function of narrowing the category of persons convicted of murder who are eligible for DP. o Aggravating circumstance must genuinely narrow the class of persons eligible for the DP and must reasonably justify the imposition of a more severe sentence on the compared to others found guilty of murder. o Death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances (Gregg). o Constitution doesnt require State to adopt specific standards for instructing jury in its consideration of aggravating and mitigating circumstances, and GA hasnt adopted such a system. Reasoning: o Elements of GA statute adequately protected against wanton and freakish imposition of DP. GA scheme provides for categorical narrowing at the definition stage, and for individualized determination and appellate review at the selection stage. Court remains convinced that structure of statute is constitutional. Narrowing function has been properly achieved in this case by 2 valid aggravating circumstances upheld by the GA SC. o Effect the erroneous instruction may have had on the jury is therefore merely a consequence of the statutory label aggravating circumstance. Instruction did not place particular emphasis on the role of statutory aggravating circumstances in the jurys ultimate decision. Any possible impact cannot fairly be regarded as a constitutional defect in the sentencing process
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Court found error in allowing jury to consider the invalid circumstance. Court held that nonetheless the MS SC could uphold the death sentence if it were to reweigh the agg and mitigating circumstances and find that death was appropriate sentence or if it were to find the error harmless beyond a reasonable doubt. Brown v. Sanders (2006) SC concluded that because jurys consideration of circumstances of the crime had the effect of rendering all the death-eligibility factors nonexclusive, CA was a non-weighing state and Zant controlled. Court stated that distinction between weighing and non-weighing states was needlessly complex and incapable of providing for full range of possible variations in statutes and that an invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. Lower courts have continued to apply Clemons in weighing states. Feb. 4: Lowenfield v. Phelps and notes following, pp. 138-146 Lowenfield v. Phelps (1988) Issue: o advances as a second ground for vacating his sentence of death that the sole aggravating circumstance found by the jury at the sentencing phase was identical to element of the capital crime of which he was convicted. urges that this overlap left the jury at the sentencing phase free merely to repeat one of its findings in the guilt phase, and thus not to narrow further in the sentencing phase the class of death-eligible murderers. Holding: o Court rejects this argument. LA scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. Constitution requires no more. Facts: o sentenced to death in LA for killing a woman with whom he lived, 3 members of her family, and one of her male friends. o Narrowing function occurs only in guilt/innocence phase. Sole aggravating factor here (risk of bodily harm to more than one person) corresponds with 3rd category of first degree murder. o Decision of DP eligibility made at guilt phase. At that state, s criticism of making the decision at this phase is that once the guilt is found, thats automatically an aggravating factor. Rules: o To pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the DP and must
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reasonably justify the imposition of a more severe sentence on the compared to others found guilty of murder. (Zant v. Stephens). o Under capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. By doing so, jury narrows the class of persons eligible for the DP according to an objective legislative definition. Reasoning: o The use of aggravating circumstances is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jurys discretion. Court sees no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase. o Narrowing function required for a regime of capital punishment may be provided in either of 2 ways: Legislature may itself narrow the definition of capital offenses, as TX and LA have done, so that jury finding of guilt responds to this concern, or legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. o Here, narrowing function was performed by jury at the guilt phase when it found guilty of 3 counts of murder under provision that offender has a specific intent to kill or to inflict great bodily harm upon more than one person. o Fact that sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so fact that aggravating circumstance duplicated one of the elements of the crime doesnt make this sentence constitutionally infirm. Dissent (Marshall, with Brennan and Stevens): o Holding misunderstands the significance of the narrowing requirement. Court treats narrowing function as a merely technical requirement that the # of those eligible for the DP be smaller than number of those convicted of murder. o Narrowing requirement meant to channel discretion of sentencer. By permitting removal of narrowing function from sentencing process altogether, the Court reduces it to a mechanical formality entirely unrelated to the choice between life and death. o LA scheme violates constitutional principles in ways that will inevitably tilt the sentencing scales toward the imposition of the DP. State will have easier time convincing a jury beyond a reasonable doubt to find a necessary element of a capital offense at guilt phase of trial if jury unaware such finding will make eligible for DP at sentencing. o State will have easier time arguing for imposition of DP, because can remind jury at sentencing phase as it did in this case that necessary agg circ already established beyond reasonable doubt.
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Notes pp. 143-145: o No-narrowing challenges in state courts: TN SC held that the scheme failed to narrow sufficiently since the broad definition of felony-murder, coupled with duplicating language of agg circ, meant that an unacceptably large # of first degree murderers were automatically death-eligible.
Limiting the Risk of Arbitariness Feb. 8: Godfrey v. GA, plus notes, and Arave v. Creech, pp.146-164 Godfrey v. Georgia (1980) Facts: o Jury imposed sentence of death for killing wife and mother-in-law. Aggravating circumstance found in both beyond a reasonable doubt was that the offense of murder was outrageously or wantonly vile, horrible and inhuman. o challenges this aggravating circumstance as being so vague as to create a substantial risk of arbitrariness. Issue: o Whether, in affirming the imposition of the sentences of death in the present case, the GA SC has adopted such a broad and vague construction of the aggravating circumstance as to violate the 8th and 14th Amendments? Rules: o Furman and Gregg A capital sentencing scheme must provide a meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not. State has constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the DP. o State has responsibility to channel the sentencers discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death. Holding: o USSC reverses s DP sentence. Under Furman, a factor like this did not help sentencing judges or juries to avoid arbitrary and capricious infliction of the DP. s crimes cannot have reflected a consciousness materially more depraved than that of any other person convicted of murder. No way to distinguish this case, where DP imposed, from many cases in which it is not. o USSC doesnt totally invalidate this aggravating factor. State of GA may still use it in next case Reasoning: o GA SC here has affirmed a sentence of death based upon no more than a finding that the offense was outrageously or wantonly vile, horrible and inhuman. Nothing in those words that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.
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Chapter 10 Litigating the Capital Case: Guiding the Sentencer Once the sentencers discretion to impose DP has been limited by statutory scheme which genuinely narrows the death-eligible class, what guidance must, or must not, be given to the sentencer in selecting from that class those to receive the DP? Tuilaepa v. CA Ct. explains the difference between the jurys eligibility determination and its selection decision and considers a vagueness challenge to several factors given to the jury for its selection decision. Feb. 10: Tuilaepa v. CA, plus note, pp.605-615 Tuilaepa v. CA (1994) Facts: o In CA, to sentence to death for 1st-degree murder the trier of fact must find the guilty and also find one or more of 19 special circumstances listed. In penalty phase, trier of fact must consider # of specified factors in deciding whether to sentence to death.
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Limiting the Risk of Arbitrariness Feb. 11: Barclay v. Florida, plus notes, and Pulley v. Harris, pp.164-180 Barclay v. Florida (1983) Facts: o with some other picked out a white victim. With co- convicted of first degree murder by jury. Trial judge didnt find any mitigating circumstances. Decided that s criminal record constituted an aggravating rather than mitigating circumstance. o argues trial judge improperly found that his criminal record was an aggravating circumstance. Florida law provides that s prior criminal record is NOT a proper aggravating circumstance. o argues that trial judge improperly found the under sentence of imprisonment and previously been convicted of violent felony aggravating circumstances. Florida SC construed trial judges opinion as finding that these agg circumstances essentially had no relevance here. No reason for Court to disturb that here o Criminal record introduced here to show LACK of mitigating circumstance. Issue: o Whether Florida may constitutionally impose the DP on petitioner Barclay when one of the aggravating circumstances relied upon by the trial judge to support the sentence was not among those established by the Florida DP statute? Must s be resentenced when trial courts erroneously consider improper aggravating factors?
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State laws which guarantee crim Ds certain rights beyond those rqd
by the fed const may give rise to liberty interests that are protected against arb deprivation under the dp clause Pulley v. Harris (1984) Facts: o claimed on appeal that CA capital punishment statute was invalid under US Constitution because it failed to require the CA SC to compare s sentence with the sentences imposed in similar capital cases and thereby to determine whether they were proportionate. Issue: o Whether the 8th Amendment, applicable to the State through the 14 th Amendment, requires a state appellate court, before it affirms a death sentence, to compare the case before it with the penalties imposed in similar cases if requested to do so by the prisoner? Rules: o While emphasizing the importance of mandatory appellate review under the GA statute in Jurek, Court didnt hold that without comparative proportionality review the statute would be unconstitutional. o Proportionality review considered to be additional safeguard against arbitrarily imposed death sentences, but comparative review NOT held to be constitutionally required. Holding: o Comparative proportionality review is NOT constitutionally required. Reasoning: o No basis in cases for holding that comparative proportionality review by an appellate court is required in every case in which DP imposed and requests it. o By requiring jury to find at least one special circumstance beyond a reasonable doubt, the statute limits the death sentence to a small subclass of capital-eligible cases. o Jurys discretion is suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. Decision reviewed by trial judge and State SC. o Post-Furman, all new state statutes provided for automatic appeal of DP. Most require reviewing court to some extent determine whether, considering the crime and the , the sentence is disproportionate to that imposed in similar cases. Not every state has adopted this Race and Jury Selection Feb. 15: Barber v. U.S. (TWEN) and Turner v. Murray, pp.358-366 plus note 3 p.383 (what right to voir dire on racial bias?). Barber v. U.S. Facts:
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o Problem of race and the DP in the context of the voir dire of the capital
jury.
o Are s entitled to question the jury on racial attitudes during voir dire?
Rules:
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they failed to establish a reasonable possibility that racial prejudice might influence the jury. Desire to clear the air on possibility of racial prejudice is not enough here. A line of questioning about interracial marriage wouldve created issue of greater risk of injustice, or its appearance, by suggesting that even in a case where race is not an issue, justice turns upon the pigmentation of skin or the accident of birth. Dissent (Powell): o We dont live in a colorblind world, so it is reversible error to refuse to ask about prospective jurors feelings about mixed race marriages. o SC has held that where a is accused of a violent crime and where the and the victim are members of different racial or ethnic groups, a reasonable probability of racial prejudice exists (Rosales-Lopez case). o Similarly here, where the Barbers are co-s and participants in an interracial marriage that violates deep-seated sexual, social, and until recently legal, taboos, there is a reasonable possibility of prejudice against the Barbers. o Therefore feels that it was reversible error not to ask any sort of proxy question on voir dire specifically aimed at uncovering prejudice toward marriage between blacks and whites.
Turner v. Murray (1986) Facts: o is black man sentenced to death for murder of white storekeeper. Judge DID ask before trial that if they knew victim was white if any person had reason they couldnt render fair and impartial verdict; they said no. Issue: o Problem of race and the DP in the context of voir dire of the capital jury. o Whether the trial judge committed reversible error at voir dire by refusing s request to question prospective jurors on racial prejudice? Rules: o Capital accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. o 2 sub rules Trial judge retains discretion as to form and # of questions on the subject including the decision whether to question the venire individually or collectively AND cannot complain about judge failing to ask the question unless specially requested it. o Peremptory strikes are at discretion of court, NOT guaranteed by the constitution. Holding: o Plurality NO, s are NOT entitled to question jury on racial attitudes during voir dire. Grant relief as to penalty, but not as to guilt (no DP, but he is still guilty because at guilt phase of trial, the jury had no discretion than it would have had if the crime charged had been non-capital murder).
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Powell (dissenting): o This will create more habeas petitions. Court today adopts per se rule applicable in capital cases, under which a capital accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias. o There is nothing in the record that reflects racial overtones of any kind. Until today, a trial judge committed an unconstitutional abuse of discretion by refusing to inquire into racial prejudices ONLY when showed that racial issues were inextricably bound up with the conduct of the trial. There are enough significant limits on the jurys exercise of sentencing discretion, illustrating why the courts per se rule is unfounded
Feb. 17: McCleskey v. Kemp, excerpt on TWEN. McCleskey v. Kemp (1987) Issue: o Does GA DP statute racially discriminate against in violation of the EPC of the 14th Amendment? Does GA DP statute violate the 8th Amendment by giving juries so much discretion in reaching their decision on capital punishment that racial discrimination may be a potential factor in their deliberations? Holding: o NO statistical evidence showing that one racial group receives a disproportionate amount of death sentences, as opposed to other groups, is NOT sufficient to challenge a state DP statute under the EPC of the 14 th Am. A must prove the presence of racial discrimination in his OWN case. Discretion allows a jury to be influenced by racial prejudice, but it does not violate the 8th Amendment since juror discretion frequently works to the s benefit. Study doesnt support an inference that this jury, in his OWN case, acted with purposeful racial discrimination (a threshold showing for proof of an EPC violation). th o With 8 Amendment claim, NO discretion in the criminal justice system is not in and of itself an 8th Amendment violation, particularly in light of the fact that in many instances discretion works to the benefit of the criminal . Moreover, insomuch as the 8th Amendment applies to all punishments, if prevailed on these grounds, courts would soon be faced with similar claims for every other type of penalty The disproportionate sentencing alleged with respect to race could also be expanded to discrepancies in sentencing in relation to other minority groups, or gender, or facial characteristics. o The basis on which challenges his sentence, statistical comparisons, lacks any limiting principle. Facts:
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GA capital sentencing scheme could operate in a fair and neutral manner. There was no evidence then, and there is none now, that GA legislature enacted the capital punishment statute to further a racially discriminatory purpose. Court rejects 8th Amendment claim too Looking to historical interpretation of 8th Amendment Court recognized that constitutional prohibition against cruel and unusual punishments is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice. Court identified a second principle inherent in the 8th Amendment that punishment for crime should be graduated and proportioned to offense. Penalty must accord with dignity of man. 2 decisions guided resolution of s 8th Amendment claim Furman DP was exacted with much frequency even for the most atrocious crimes and there was no meaningful basis for distinguishing the few cases in which it was imposed from the many cases in which it was not. Gregg Where court addressed question left open in Furman whether punishment of death for murder is under all circumstances cruel and unusual in violation of the 8th? The actions of juries were fully compatible with the legislative judgments. Court noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular state, the moral consensus concerning the DP and its social utility as a sanction, require Court to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus not unconstitutionally severe. Then Gregg questions arbitrariness and capriciousness, Woodson on narrowing, and detailed guidance of the sentence from Proffitt. Post-Furman jurisprudence has identified constitutionally permissible range of discretion in imposing the DP. 1st: there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decision-maker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense 2nd: States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant. WE DO NOT ACCEPT DS 8 TH A ARG. Court disagrees with s proportionality argument facially
Dissent (Brennan): o need only demonstrate that there was a risk that his sentence was imposed as a result of racial prejudice. The Baldus Study adequately demonstrates that risk by showing that more likely than not a black will
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receive a death sentence as compared to a white (mainly about the 8 th Amendment). o DP in ALL circumstances cruel and unusual punishment forbidden by 8 th. o McCleskys claim does differ, however, in one respect from earlier cases: It is the first time to base a challenge not on speculation on how a system might operate, but on empirical documentation of how it DOES operate. o s evidence cannot rest solely on #s themselves. Must ask whether the conclusion suggested by those #s is consonant with our understanding of history and human experience. GAs legacy of a race-conscious criminal justice system, as well as this Courts own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskeys claim is not a fanciful product of mere statistical artifice. Dissent (Blackmun): o Study demonstrates a clear pattern of differential treatment in imposing the DP on the basis of race. has met his burden of showing a prima facie case of purposeful discrimination, and the burden should have shifted to the state to disprove that allegation (mainly about EPC claim). Dissent (Stevens): o Majoritys concern, that allowing s claim to prevail would sound the death knell for any DP statute in GA is unfounded. o Baldus study indicates the existence of certain categories of extremely serious crimes, when death is imposed by juries regardless of the race of the or victim. Narrowing the class of death-eligible offenses to just those categories would allow GA to have a non-discriminatory capital punishment statute. Book Notes on McCleskey The inevitability of racial disparities (p.196) o Focusing on Courts suggestion that apparent racial disparities in sentencing is inevitable. Many people have challenged this and say 4 possible approaches to dealing with racial discrimination in capital punishment: 1) narrowing the class of death-eligible cases 2) requiring standards to limit the exercise of prosecutorial discretion 3) recognizing claims of racial discrimination in individual cases and evaluating those claims under burdens of proof comparable to those applied in other areas of law; or 4) abolishing the DP. o Inevitability is really unwillingness to make an effort
Feb. 18: pp.217-229, handout. Plus textbook notes 1-6 pp.195-198. Notes pp.195-198 Underprotection of the African-American community
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Feb 22: pp.233-250, handout. Feb. 24: Miller El v. Dretke and notes following, pp.366-382 (limitations on racially biased peremptory strikes in jury selection). In particular description on p.368 and in note 2 p.382. Miller El v. Dretke (2005) Issue: o asked for review of district courts rejection that prosecution in his capital murder trial made peremptory strikes of potential jurors based on race (did satisfy his burden of proof of discriminatory purpose at 3 rd stage of Batson challenge)? o Court addressing s claim that prosecutors engaged in racial discrimination in their use of peremptory challenges. Holding: o prevails on his claim and needs habeas relief. Race was significant in determining which jurors were challenged and which were not. Facts: o killed and robbed hotel employee. During jury selection, prosecution used peremptory strikes against 10 qualified black venire members. During
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his appeal, SC denied s request to pick new jury and trial ended with his death sentence for capital murder. o During his appeal, SC decided Batson v. Kentucky, which created the rule discrimination by the prosecution in selecting the s jury sufficed to establish the constitutional violation of the 14th Amendment. o Out of 20 black members of 108 person venire panel, only 1 served. 10 were peremptorily struck by prosecution. Prosecution used their peremptory strikes to exclude 91% of the eligible black venire members happenstance unlikely to produce this disparity. Rules: o Racial discrimination by State in jury selection offends the EPC. could make out prima facie case of discriminatory jury selection by totality of relevant facts about prosecutors conduct during s own trial. Once makes prima facie case, burden shifts to State to come forward with neutral explanation for challenging jurors within targeted class. Prosecutor must give clear and reasonably specific explanation of legitimate reasons for exercising challenge. Batson provides opportunity to prosecutor to give reason for striking juror, and requires judge to assess plausibility of that reason in light of all evidence with a bearing on it. o Batson v. Kentucky, which created the rule discrimination by the prosecution in selecting the s jury sufficed to establish the constitutional violation of the 14th Amendment. o Court looks to black panelists struck compared to white panelists struck. If a prosecutors proffered reason for striking a black panelist applies just as well to an otherwise non-black similar juror allowed to serve, that is evidence tending to prove purposeful discrimination to be considered at Batsons third step. o Batson challenge doesnt call for mere exercise in thinking up any rational basis. If stated reason doesnt hold up, its pretextual significance doesnt fade because a trial judge or an appeals court can imagine a reason that might not have been shown up as false. Reasoning: o Specific reasons Court thinks race an issue here Prosecutor resorts during voir dire to procedure called jury shuffle and no racially neutral reason has ever been offered. Also, prosecutor posed contrasting voir dire questions posed respectively to black and nonblack panel members, on 2 different subjects. Gave gruesome depiction of DP to blacks, and bland to white, hoping to get blacks to reject DP. o States rationale doesnt adequately explain why most white panel members opposed or ambivalent, all were asked trick question. State used trick questions to try and induce disqualifying answer Concurring opinion (Breyer):
o Only way to end racial discrimination that peremptories inject into jury
selection process is to eliminate peremptory challenges totally.
o Sees many issues with Batson litigants are free to misuse peremptory
challenges as long as the strikes fall below the PF threshold level. Prosecution need only tender a neutral reason, not even persuasive or even plausible one. Rule asks judges to engage in awkward tasks of second guessing a prosecutors instinctive judgment, underlying basis for which may be invisible even to Prosecutor exercising the challenge. Notes p.382 Establishing a prima facie case Johnson v. CA (2005) SC addressed burden of proof at first stage of Baston challenge. In Johnson, , a black man, was charged with 2nd degree murder and assault on child resulting in death in killing of 19 month old white child. During jury selection, objected after prosecutor struck all 3 blacks in jury pool. Trial judge rejected challenge, without requiring prosecutor to explain strikes, finding that had not make out prima facie case of discriminatory purpose. o On appeal after conviction, CA SC upheld trial courts ruling on ground that failed to produce strong evidence that makes discriminatory intent more likely than not if challenges are not explained. SC reversed, finding no support in Batson for a more likely than not standard for s prima facie case and holding that need do no more than proffer facts giving rise to inference of discrimination. Batson v. Kentucky (1986) Distribution of the burden of proof to establish a Batson claim Batsons proof as compared with burden of proof required under McCleskey: o Held: a Pross use of peremptory challenge, the dismissal of jurors w/o stating a valid cause for doing so, may not be used to exclude jurors based solely on their race. Ct ruled that this practice violated the EPC. How is this dif from older std? lower burden of proof D must show to make a PF case (which does not require proof of reasoning) on purposeful discrimination. o D could make a Pf case for purposeful racial discrimination in jury selection by relying on the record only in his case. The D first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire [jury pool] members of the defendant's race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the venire men from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. o Once the D makes a PF case showing the burden shifts to the state to come fwd with a neutral explanation for challenging jurors w/in an arguably targeted class. Although there may be any number of bases on which a Pros reasonably might believe that it is desirable to strike a juror who is not excusable for cause.., the Pros must give a clear and reasonably specific
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explanation of his legit reasons for exercising the challenge. The TC then will have the duty to determine if the D has establish purposeful discrimination . o Low threshold for PF case: statistical imbalance is enough. Proffer facts giving rise to an inference of discrimination. Need NOT meet the more likely than not std. o But Batsons individualized focus came with a weakness: if any facially neutral reason sufficed to answer Batson challenge, then Batson would not amount to much more than old rule. Batson says a D may rely on all relevant circumstances to raise an inference of purposeful discrimination. Batson tries to help situation by 1) requiring Ds to establish PR case of discrimination, 2) asking Pros then to offer a race neutral explanation for their use of peremptory, and then 3) requiring Ds to prove that the neutral offered is pretextual, Batson is really a weak rule. Feb. 25: U.S. v. Bass cases on TWEN, Stephens v. State. US v. Bass (6th Circuit) Issue: o wants access to USs documents pertaining to capital charging practices in order to show the DP was sought against him because of his race. Holding: o Court affirms district courts discovery order and US must submit documents pertaining to capital charging practices. o DCs decision that stark discriminatory effect of federal DP protocol, when coupled with official statements of members of DOJ, was at least some evidence tending to show that race played role in deciding what s to charge with death-eligible offenses, was not abuse of discretion and Court supported DCs decision to order discovery on s selective prosecution claims. Facts: o Black alleged that government had determined to seek DP against him because of his race. Moved to dismiss DP notice and in the alternative, for information relating to governments capital charging practices. o Federal grand jury charged with intentional firearm killing of 2 people. US filed intent to seek DP. moved to dismiss DP notice and requested discovery pertaining to USs capital charging practices. DC granted request, US wont comply, DC dismisses DP notice. o Process being questioned Dept of Justice report: all death-eligible charge brought by US are subjected to the Departments DP decision-making procedures. When US charges death eligible crime they have to submit a bunch of shit. Bass requested this shit and US wouldnt give it to him. After hearing on his motion, DC found that he had shown sufficient evidence of racial bias in the DP decision process to justify further discovery. US refuse to comply with discovery order. Rules:
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US v. Bass (SCOTUS)
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Holding: o Reversed the 6th Circuits holding. Reasoning: o Armstrong says that D must make a credible showing that similarly situated individuals of a different race were not prosecuted. 6 th said D did make this showing based on nationwide stats. Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decision-makers in respondent's case), raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants. And the statistics regarding plea bargains are even less relevant, since respondent was offered a plea bargain but declined it. See Pet. for Cert. 16. Under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery. o 6th Circuit decision is contrary to Armstrong and threatened the performance of a core executive constitutional function.
Stephens v. State (1995) Issue: o Was the mandatory life sentence for 2nd conviction for sale or possession of controlled substance with intent to distribute constitutional as applied where 100% of persons serving sentence were black? Holding: o Statute WAS constitutional as applied. Mandatory life sentence for second conviction for sale or possession of controlled substance with intent to distribute did not violate state or federal EPC as applied, even though African-Americans comprised 100% of persons from s county serving the sentence and represented 98.4% of persons serving those sentences statewide; conceded that he couldnt prove discriminatory intent by legislature, and failed to present evidence by race concerning eligible persons against whom DA failed to seek the sentence. o Mandating life sentence for 2nd conviction for sale or possession of controlled substance with intent to distribute has rational basis and, therefore, does NOT deprive persons of due process or equal protection. Facts: o Black convicted in SC of selling cocaine. appealed, alleging racial discrimination in application of mandatory life sentence for 2nd conviction for sale with intent. Rules: o Because the district attorney in each judicial circuit exercises discretion in determining when to seek a sentence of life imprisonment, a defendant must present some evidence addressing whether the prosecutor handling a particular case engaged in selective prosecution to prove a state equal protection violation. Reasoning:
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March 1: pp.328-348, Witherspoon v. Illinois (1968), Uttrecht v. Brown (2007) and notes, p.348. Witherspoon v. Illinois (1968) Issue: o Whether the s constitutional rights are violated when the court excuses for cause potential jurors who have expressed feelings against the DP? o State excluded jurors with conscientious scruples against the DP, and Court has to decide whether that exclusion violated the s rights and, if so, whether the exclusion affected only the penalty determination or the guilt determination as well? o Does the Constitution allow a state to execute a man pursuant to the verdict of a jury composed of people via this type of process (where eliminated for cause if they have scruples about the DP)? Holding: o No and yes; will not create per se rule, but a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding venire persons for cause simply because they voiced a general objection to the DP or expressed scruples. o NOT prepared to create per se constitutional rule requiring the reversal of every conviction returned by jury selected as this one was. However, does NOT follow that entitled to no relief. Jury had 2 responsibilities here innocence or guilty AND imprisonment for life or death. It has Not been shown that jury was biased with respect to guilt, but it is self-evident that in its role as arbiter of punishment to be imposed, this jury fell woefully short of that impartiality to which
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entitled under 6th and 14th amendments. Jurors general views about capital punishment play inevitable role in this part. o State may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death. Sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the DP or expressed conscientious or religious scruples against its infliction. No can constitutionally be put to death at the hands of a tribunal so selected. Facts: o 47 people were eliminated under this statute in s trial. Only 5 of those that said under no circumstances would they give the DP. This eliminates those who oppose and those who have had conscientious scruples. o argues this type of jury is therefore biased in favor of conviction because kind of juror who would not be bothered by the prospect of sending a man to his death is the kin of juror would who too readily ignore the presumption of the s innocence, accept prosecutions verdict of facts, and return guilty verdict. Rules: o Illinois arms the prosecution with unlimited challenges in order to exclude those jurors who might hesitate to return a verdict inflicting death. Reasoning: o A man who opposes the DP, no less than one who favors it, can make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it. This jury cannot speak for the community where less than half the people in US believe in DP o When it swept from the jury all who expressed conscientious or religious scruples against capital punishment, and all who oppose it in principle, the state crosses the line of neutrality. State produced a jury uncommonly willing to condemn a man to die. o Footnote 21 - fn 21: Just as venire men cannot be excluded for cause on the ground that they hold such views, so too they cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would, in fact, vote for the extreme penalty in the case before him. The most that can be demanded of a venire man in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that venire men were excluded on any broader basis than this, the death sentence cannot be carried out even if applicable statutory or case law in the
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relevant jurisdiction would appear to support only a narrower ground of exclusion. (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case. Separate opinion (Douglas) o Right to a jury drawn from a fair cross-section of the community requires the inclusion of people who are so opposed to capital punishment that they would never inflict it in a . Black, with Harlan and White (dissenting) o Statute was designed to insure an impartial jury by excluding people who are biased as to one of critical issues in the case.
Uttecht v. Brown (2007) Issue: o Did the US Court of Appeals for the 9th Circuit fail to give proper deference to a trial judges dismissal of a juror on the grounds that he could not carry out the duties of a juror in a capital sentencing case? Holding (5-4): o Yes, court did err. o Appellate courts owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror. Trial court is appropriate because it is in a position to assess the demeanor of the venire and the individuals who compose it. The substance of the potential jurors comments had indicated confusion over the proper application of the states DP, so the trial court had acted reasonably when it found the juror was substantially impaired and excused him. The Court held that the trial judge was especially entitled to deference before the trial judge, unlike appellate judges, has access to contextual information that is not reflected in the transcript of the jury selection questioningalthough the defense counsel vigorously objected to other juror dismissals, he originally made no objection to the dismissal of the juror at issue in the subsequent appeal. o Court limits its holding the need to defer to the trial courts ability to perceive jurors demeanor does not foreclose the possibility that a reviewing court may reverse the trial courts decision where the record discloses no basis for finding of substantial impairment.
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Facts:
o Court elaborating on Witherspoon. o State excluded for cause 47 of 96 jurors without significant examination of
the individual prospective jurors. Rules:
o Precedential cases discussed by Court. o Wainwright v. Witt (happened after Witherspoon in 85) tried to
elaborate by saying it was important to look at it in context of those facts. Rejects strict standard of Witherspoons footnote 21 and recognized that the diminished discretion now given to capital jurors and the states interest in administering its capital punishment scheme called for a different standard. Whether the jurors views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Also, accord deference to Trial Court. When ambiguity in jurors statements , the trial court is allowed to resolve it in favor of the state. Juror gives ambiguous answer and w/o further questioning can be struck. The Court further held that a federal habeas court reviewing the decision to remove must defer to the trial judge's ability to observe the juror's demeanor and credibility, and apply the statutory presumption of correctness to the judge's implicit factual determination of the juror's substantial impairment. o Wainwrights 4 principles of relevance 1) A criminal has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. 2) The state has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. 3) To balance these interests, a juror who is substantially impaired in his or her ability to impose the DP under the state-law framework, can be excused for cause. But if the juror is not substantially impaired, removal for cause is impermissible. 4) In determining whether the removal of a potential juror would vindicate the States interest without violating the s right, the trial court makes a judgment based in part on the demeanor the juror, a judgment owed deference by reviewing court. Reasoning: o Procedural matters To preserve a Witherspoon claim, for fed habeas review there is no independent federal requirement that a in state court object to the prosecutions challenge, state procedural rules govern. But by failing to object, the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct error. Deprived reviewing courts of further factual findings that could have explained trial courts decision.
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Notes o Effect of improper exclusion SC has reaffirmed the principle that the improper exclusion of a prospective juror under Witherspoon/Witt is reversible per se even if the prosecution had unused peremptory challenges. Some justices argue for a reversal of Witherspoon (p.348).
Capital Punishment March 3 March 31 Jury Selection Issues March 3: Lockhart v. McCree, pp.348-358 Lockhart v. McCree (1986) Facts of the case: o McCree charged with capital felony murder. o During voir dire at trial, trial judge (over McCrees objections) removed for cause three prospective jurors who stated that they could not under any circumstances vote for the imposition of the death penalty. 8 prospective jurors removed for this reason. Issue (left open from Witherspoon): o Does the Constitution prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial? o claimed that death qualification violated his right under the 6 th and 14th Amendments to have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community. Witherspoon-excludables = jurors with opposition to the death penalty who may be excused. o making fair-cross section claim and due process claim. Holding (delivered by Rehnquist): o It does not. o Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case. o Constitution does not prohibit the States from death qualifying juries in capital cases. Important Reasoning: o No requirement that juries must actually mirror community and reflect various distinctive groups of population. o Exclusion of Witherspoon-excludables would not constitute exclusion of a distinctive group for fair-cross section purposes.
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o An impartial jury consists of nothing more than jurors who will conscientiously
apply the law and find the facts. Idea that State may want death qualified jury for guilt/innocence phase because predisposed to finding guilt. o Removal of cause of Witherspoon-excludables serves States proper interest in obtaining a single jury that could impartially decide issues in this case. o Here, dealing with GUILT/INNOCENCE phase. Even if jurors in favor of DP, no sign that they couldnt be impartial so within boundaries of impartiality and thats all thats required by constitution. Dissent (Marshall, with Brennan and Stevens): o presented overwhelming evidence that death-qualified juries are substantially more likely to convict or to convict on more serious charges than juries on which unalterable opponents of capital punishment are permitted to serve. o Court upholds practice which allows State special advantage in prosecutions. Gives prosecution license to empanel a jury especially likely to return guilty verdict. o Right to an impartial jury established in Witherspoon bars State from skewing composition of capital juries by excluding scrupled jurors who are able to find those facts without distortion or bias.
March 4: Mumin v. Virginia & Textbook on What do Jurors Understand? (pp. 653658) Mumin v. Virginia (1991) Facts: o Extensive pre-trial publicity. Guy convicted of murder, escaped work detail and kill someone. Stranger-on-stranger murder. o Inflammatory headlines on pre-trial articles. Also radio, television publicity o made move to change venue, submitted 47 newspaper articles. These articles discussed: prior criminal record, fact rejected for parole 6 times, accounts of prison infractions, his confession, that he was convicted for earlier murder, his sentence for this murder, the details about prior murder. o wanted to be able to ask potential jurors questions about what theyve heard, though of this case. Judges allowed all these questions. Court didnt allow content-specific questions Issue: o Does have a right to have content-specific questions posed to potential jurors? Rules: o Content-based questions not required by constitution. Trial courts failure to ask questions must render trial fundamentally unfair. o Due process test whats fundamentally unfair? For whom? How?
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Holding: o In a five to four decision, held that the Constitution does not require that potential jurors be asked questions regarding the content of pretrial publicity during the voir dire in every instance in which the potential jurors have indicated exposure to it. The Court acknowledged that content questioning is preferable in cases where pretrial publicity presents the risk of an unfair trial, but held that it is not constitutionally mandated in all circumstances. Reasoning: o Wouldnt have been constitutional violation to allow content-based questions since no prohibition. This is in the realm of discretion, so deference to trial courts findings of fact must be given. o Concern with fairness of process v. results. Trial must be fundamentally unfair in order for it to be an abuse of discretion
What do Jurors Understand? Jury has historically served as voice of community in capital sentencing. Point of jury instructions is to explain the applicable law to these non-lawyers so they understand their task. Study to evaluate how well jurors understand the instructions that are to guide them in their sentencing of a to death or life imprisonment. Meaning of aggravation and mitigation: o Empirical research suggests that CA capital sentencing instructions do not adequately explain the basic concepts of aggravation and mitigation and there is confusion over whether a particular sentencing factor is to be considered aggravating or mitigating. o Least understood term was extenuating. Many jurors who served in capital trials between 1990 and 1994 didnt understand scope of permissible aggravating and mitigating factors. Procedural requirements and statutory formula for the penalty determination: o Jurors must understand procedural requirements for proving aggravating and mitigating factors as well as the statutes formula for arriving at the appropriate sentence. o North Carolina study assessed jurors understanding of when, under the sentencing instruction, a was to be sentenced to life or death. Roughly of jurors felt that death was mandatory when it was not and failed to appreciate situations which mandated life. o South Carolina jurors confused about different burdens of proof applicable to aggravating factors and mitigating factors and requirement of unanimity. o Potential capital jurors in Illinois misunderstand the issue of unanimity and when the statute calls for a life sentence or death sentence. Factors Contributing to Jurors Misunderstanding of Capital Sentencing Instructions. o 1) Instructions are long and boring. o 2) Instructions are not clearly and simply written but often use complex syntax, unfamiliar words, and multiple negatives.
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o When evaluating this case, finds that undisclosed evidence doesnt create a
reasonable probability of a different result. State presented massive core of evidence showing guilty of murder. o Rejects petitioners claim that Brady materials would have created a residual doubt sufficient to cause the sentencing jury to withhold capital punishment. March 10: Closing Argument: pp.491-501, Darden v. Wainwright (1986); Taking inconsistent positions against co-defendants, pp.501-505, Jacobs v. Scott (1995) Darden v. Wainwright (1986) Facts: o Habeas petition filed against Wainwright, the head of the Department of Corrections in Florida. o In closing argument, Prosecutor attempted to place some blame on Department of Corrections, because on furlough when crime occurred, some comments implied that DP would be only guarantee against similar future act, and others incorporated defenses use of the word animal. Some other comments reflected emotional reaction to case. o Petitioner contends that the prosecutions closing argument at the guiltinnocence stage of the trial rendered his conviction fundamentally unfair and deprived the sentencing determination of the reliability that the 8th Amendment requires. Issue: o Whether prosecutors comments so infected the trial with unfairness as to make the resulting conviction a denial of due process? * Not enough that prosecutors remarks undesirable or even universally condemned Rules: o In determining whether prosecutorial misconduct exists and if it is flagrant, look to factors including: 1) Likelihood remarks of the prosecution mislead the jury or prejudiced the jury toward the defendant; 2) Whether the remarks were isolated or extensive; 3) Whether the remarks were deliberately or accidentally made; 4) The total strength of the evidence against the defendant Holding: o Prosecutors comments did not deprive petitioner of a fair trial. The prosecutors argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent. Much of the objectionable content was invited by or was responsive to the opening summation of the defense. Reasoning:
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Jacobs v. Scott (1995) Holding: o Application for stay of execution of death sentence denied. Dissent (Stevens, with Ginsburg): o Fundamentally unfair to go forward with execution of . o At co-s separate trial, State abandoned its theory that killed victim and used him as witness, vouching for his veracity. Prosecutor stated that state had been wrong in taking position in s trial that had done actual killing. Now state believed co- had done the killing. o If prosecutors statements at co-s trial correct, then innocent of capital murder. Prosecution has discretion and couldve asked court to give new sentencing hearing based on newly discovered evidence from cos case. o Fundamentally unfair to execute a person on the basis of a factual determination that the State has formally disavowed. o Due Process Violations: Due process violation when a prosecutor fails to correct testimony he knows to be false. To obtain a conviction by the use of testimony known by the prosecutor to be perjured offends due process.
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Notes (p.503-505): o Prosecutors use of inconsistent theories Prosecutors use of inconsistent factual theories in separate trials of co-s is not uncommon in capital cases. Since Jacobs, a number of death-sentenced s have sought to set aside their sentences on that basis, with mixed results: Due process violation because prosecutors flip-flopping inherently unfair. No due process violation because a prosecutor can make inconsistent arguments at the separate trials of codefendants without violating the due process clause. o Deterring prosecutorial misconduct Generally, prosecutor immune from civil suits for his or her misconduct. Supreme Court has never suggested these governmental officials beyond the reach of criminal law. Even judges could be punished criminally for willful deprivation of constitutional rights. Prosecutor would fare no better for willful acts.
March 11: Chapter 4: The Requirement of an Individualized Penalty Determination pp. 199-213, Lockett v. Ohio and Eddings v. Oklahoma Chapter 4 The Requirement of an Individualized Penalty Determination
Woodson v. North Carolina and Roberts v. Louisiana: o Court held unconstitutional mandatory death penalty statutes because they failed to allow the particularized consideration of relevant aspects of the character and records of each convicted defendants. o Defendant must be permitted to present mitigation evidence. We believe in capital cases the fundamental respect for humanity underlying 8th Am. requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death.
Lockett v. Ohio (1978) Facts: o was one of 4 defendants, didnt fire shot that killed the victim. Lockett refused several plea deals from the government. o Ohio DP Statute: Judge must consider 3 mitigating circumstances, decide if they exist by preponderance of the evidence: 1) Victim induced or facilitated the offense
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Eddings v. Oklahoma (1982) Facts: o shot and killed police officer. Juvenile when committed crime, but tried as an adult. o Oklahoma DP Statute:
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consideration and full effect to mitigating circumstances in choosing s appropriate sentence. o Key under Penry is that jury be able to consider and give effect to s mitigation evidence in imposing sentence. Supplemental instruction employed by TX courts didnt provide jury with adequate vehicle for expressing a reasoned moral response to ALL the evidence relevant to s culpability. Holding: o Nullification instruction was constitutionally inadequate under Penry II. o Court rejects 5th Circuits threshold test. Mitigation evidence does NOT need to be tied to culpability of this particular criminal act. Mitigation evidence has a low threshold, since evidence must tend to logically prove or disprove some fact or circumstances which a fact-finder could reasonably deem to have mitigating value. Reasoning: o This case is sufficiently similar to Penry. It wouldve been logically and ethically impossible for juror to follow both sets of instructions. Jurors who want to answer one of the special issues falsely to give effect to the mitigating evidence would have had to violate their oath to render a true verdict. With the instruction, if the jurors found mitigating evidence, juror should find one of the special issues to be no even if otherwise would believe the answer to be yes. o Mechanism created by the supplemental instruction thus inserted element of capriciousness into sentencing decision. o Just as in Penry, s jury required by law to answer a verdict form that made no mention whatsoever of mitigation evidence. o No principled distinction, for 8th Amendment purposes, between instruction given here to s jury and that given in Penry. Notes (p.219): New Texas Capital Sentencing Statute o In 1991 TX legislature revised capital sentencing statute to eliminate issue in Smith. Under amended law, after presentation of evidence, the jury must decide 2 special issues: 1) whether there is a probability that the would commit criminal acts of violence that would constitute a continuing threat to society; and 2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the guilty [as a principle or accomplice], whether the actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. o Court must inform jury that in deliberating these special issues, it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the s background or character or the circumstances of the offense that militates for or mitigates against
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the imposition of the DP. If the jury returns a unanimous affirmative finding as to each of the special issues, then the jury is instructed to answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the s character and background, and the moral culpability of the , there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. March 24: pp.220-239, Kansas v. Marsh and the Scalia and Stevens discussion from Walton v. Arizona, in which Scalia pronounces that he will no longer follow the Woodson-Lockett line of cases. Kansas v. Marsh (2006) Facts: o Jury found beyond a reasonable doubt the existence of three aggravating circumstances, and that those circumstances were not outweighed by any mitigating circumstances. o argues Kansas statute establishes an unconstitutional presumption in favor of death because it directs imposition of the DP when aggravating and mitigating circumstances are in equipoise. Issue: o Whether the Kansas statute, which requires the imposition of the DP when the sentencing jury determines that aggravating evidence and mitigating evidence are in equipoise, violates the Constitution? Rules: o As a requirement of individualized sentencing, a jury must have the opportunity to consider all evidence relevant to mitigation, and that a state statute that permits a jury to consider any mitigating evidence comports with that requirement. o States are free to determine the manner in which a jury may consider mitigating evidence. Court has never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceedings is constitutionally required. States enjoy a constitutionally permissible range of discretion in imposing the DP. o State capital sentencing system must: 1) rationally narrow the class of death-eligible defendants; and 2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible s records, personal characteristics, and the circumstances of the crime. o So long as a state system satisfies these requirements, precedents establish that a State enjoys a range of discretion in imposing the DP, including the manner in which aggravating and mitigating circumstances are to be weighed. Holding: o The Kansas statute is NOT facially unconstitutional.
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Reasoning: o Kansas statute satisfies constitutional mandates of Furman and its progeny because it rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination. It does not interfere, in a constitutionally significant way, with a jurys ability to give independent weight to evidence offered in mitigation. o Kansas weighing equation merely channels a jurys discretion by providing it with criteria by which it may determine whether a sentence of life or death is appropriate. o Statute does not create a general presumption in favor of the DP in Kansas. System dominated by presumption that life imprisonment is appropriate sentence for capital conviction. o State has burden of demonstrating mitigating evidence doesnt outweigh aggravating evidence, not vice versa. Determination that evidence is in equipoise is a decision FOR not a presumption in favor of death. Finding that factors are in balance is a decision that death is the appropriate sentence. Dissent (Souter, with Stevens, Ginsburg, and Breyer): o In Kansas, when a jury applies the States own standards of relative culpability and cannot decide that a defendant is among the most culpable, the state law says that equivocal evidence is good enough and the defendant must die. A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the courts holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States. o States provision for a tie breaker in favor of death fails because the dispositive fact is not the details of the crime or the unique identity of the individual . Determining fact is not directly linked to particular crime or particular criminal at all. Tie breaker doesnt identify worst of the worst, even though DP should be reserved for those offenders. o Mandates death in what the court ids as doubtful cases.
Walton v. Arizona (1990) Holding: o In 5-4 decision, Court upheld AZs capital sentencing scheme, which leaves to the judge the determination of the existence of aggravating or mitigating circumstances and the decision as to the penalty, and the Court rejected the defendants challenge to the especially heinous, cruel or depraved aggravating circumstance. Scalia (concurring in part and concurring in judgment): o Would toss out Woodson and Lockett because of inconsistencies. Woodson and Lockett are rationally irreconcilable with Furman. o Believes Lockett rule represents a sheer about-face from Furman, an outright negation of the principle of guided discretion that brought the
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Court down the path of regulating capital sentencing procedure in the first place. o Woodson-Lockett principle has prevented States from imposing all but the most minimal constraints on the sentencers discretion to decide that an offender eligible for the DP should nonetheless not receive it. Repeatedly over past 20 years state legislatures and courts have adopted discretion-reducing procedures to satisfy Furman principle, only to be told years later that their measures have run afoul of Lockett principle. o Contradiction and tension between requiring the states channel the sentencers discretion by clear and objective standards that provide specific and detailed guidance (Godfrey v. GA) and saying that the State cannot channel the sentencers discretionto consider any relevant mitigating information offered by the defendant (McCleskey v. Kemp) that sentencer must enjoy unconstrained discretion to decide whether any sympathetic factors bearing on the defendant or the crime indicate that he does not deserve to be sentenced to death (Penry v. Lynaugh). Latter requirement destroys whatever rationality and predictability former requirement designed to achieve. o Willing to adhere to the precedent established by Furman line of cases, and to hold that when a State adopts capital punishment for a given crime but does not make it mandatory, the 8th Amendment bars it from giving the sentencer unfettered discretion to select the recipients, but requires it to establish in advance, and convey to the sentencer, a governing standard. Sentence cant be imposed arbitrarily or would violate 8th Amendment. Must be some rule/guide to prevent arbitrariness, perhaps including limits on sentencers discretion. Otherwise, Furman would have to be rejected entirely Stevens (dissenting): o Rules that are required for purposes of narrowing eligibility (who is eligible for the DP at all) can be done rationally and are required constitutionally. These rules are NOT in conflict with the principle of individualized sentencing since that occurs at a different stage. o Scalia ignores the difference between the base of the pyramid and its apex. A rule that forbids unguided discretion at the base is completely consistent with one that requires discretion at the apex. After narrowing the class of cases to those at the tip of the pyramid, it is then appropriate to allow the sentencer discretion to show mercy based on individual mitigating circumstances in the cases that remain. Note (p.239): Justice Stevens understanding confirmed: o In Tuilaepa v. CA (1994), majority of court confirmed Stevens understanding that there are 2 steps involved in penalty determination the eligibility determination and the selection determination each serves different constitutional purpose. The eligibility determination, where the prosecution typically must prove an aggravating circumstance, satisfied the Furman concern by narrowing the eligible class.
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o Does the punishment of death for rape violate the 8th Amendment, which
proscribes cruel and unusual punishments and which must be observed by the States as well as the Federal Government? Rules:
o For rapist to be executed in GA, it must therefore be found that not only
did he commit rape but also one or more of the aggravating circumstances were present: 1) that rape was committed by person with prior record of conviction for capital felony; 2) that rape was committed while offender was engaged in commission of another capital felony, or aggravated battery; or 3) the rape was outrageously or wantonly vile, horrible or inhuman that it involved torture, depravity of mind, or aggravated battery to the victim. Holding: o Sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the 8 th Amendment as cruel and unusual punishment. o Death sentence imposed on Coker is disproportionate punishment for rape. Reasoning: o 1) Evolving Standards of Decency Court looks to history and objective evidence of countrys present judgment concerning acceptability of death as penalty for rape of an adult woman in making their decision. Court wants reliable objective index of contemporary values. Take temperature of society, what states have done/are doing. At no time in last 50 years have majority of States authorized death as punishment for rape. GA is sole jurisdiction in US at present time that authorizes a sentence of death when the rape victim is an adult woman, and only 2 other jurisdictions provide capital punishment when victim is child. Current judgment with respect to DP for rape is not wholly unanimous among state legislatures, but obviously weighs heavily on side of rejecting capital punishment as a suitable penalty for raping an adult woman. o 2) Also observed in Gregg that jury is significant and reliable objective index of contemporary values because it is so directly involved and it is thus important to look to sentencing decisions juries have made in assessing whether capital punishment is an appropriate penalty for the crimes being tried. In the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence. 5 convicted rapists now under sentence of death in GA. GA juries have thus sentenced rapists to death 6 times since 1973. o 3) Look to Courts own judgment on acceptability of DP under 8th Amendment for rape of adult woman.
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Notes (p.246): Rape and the DP o Courts decision in Coker doesnt mention race, yet decision issued against background of extreme racial discrimination in use of DP in rape cases. o From 1930 until Furman decision, 455 men were executed for rape in US, and almost 90% of those were black.
Tison v. Arizona (1987) Facts: o 3 Tison brothers helped their father and another inmate escape jail. During escape, father and inmate murdered 4 captives. o State individually tried each of the s for capital murder of 4 victims as well as for associated crimes of armed robbery, kidnapping, and car theft. o AZ felony-murder law provided that a killing occurring during the perpetration of robbery or kidnapping is capital murder and that each participant is legally responsible for acts of accomplices. AZ law provided for capital sentencing proceeding; 3 aggravating and 3 non-statutory mitigating factors found. o 2 of the petitioners sentenced to death Issue: o Whether the petitioners participation in the events leading up to and following the murder of four members of a family makes the sentences of death imposed by the AZ courts constitutionally permissible although neither petitioner specifically intended to kill the victims and neither inflicted the fatal gunshot wounds? o Bigger issue - Whether the 8th Amendment prohibits the DP in the case of a whose participation is major and whose mental state is one of reckless indifference to the value of human life? Whether the 8th Amendment proportionality requirement bars the DP under these circumstances? Rules: o Enmund v. Florida Court reversed death sentence of convicted under Floridas felony-murder rule. Court, citing the weight of legislative and community opinion, found a broad societal consensus, with which it agreed, that the DP was disproportional to the crime of robbery-felony murder in these circumstances. o Court surveyed States felony-murder statutes, the behavior of juries in cases like Enmunds to assess American attitudes toward capital
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punishment in felony-murder cases, and conducted its own proportionality analysis. o Court found Enmunds degree of participation in murders so tangential it couldnt justify a sentence of death. Neither the deterrent or retributive purposes of the DP were further by imposing it on Enmund. Since Enmunds participation in felony murder was so attenuated and since there was no proof that Enmund had any culpable mental state, the DP was excessive retribution for his crimes. Holding: o AZ Supreme Court applied an erroneous standard in making the findings required by Enmund v. Florida. o Only a small minority of jurisdictions imposing capital punishment for felony murder have rejected the possibility of a capital sentence absent an intent to kill, and Court doesnt find that minority position constitutionally required. o Hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement. o AZ courts found major participation, so Court remands for it to determine whether there was reckless indifference to human life. Reasoning: o Clear that petitioners fall outside the category of felony murderers for whom Enmund explicitly held the DP disproportional: their degree of participation in the crimes was major rather than minor, and the record would support a finding of the culpable mental state of reckless indifference to human life. o Evaluate like Enmund court: State legislatures judgment as to proportionality in these circumstances. Substantial and recent legislative authorization of the DP for the crime of felony murder regardless of the absence of a finding of an intent to kill powerfully suggests that our society does not reject the DP as grossly excessive under these circumstances. o A narrow focus on the question of whether or not a given intended to kill is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers. Dissent (Brennan, with Marshall and Blackmun and Stevens): o Argue that facts were not sufficient to support Courts conclusion that petitioners acted with reckless disregard to human life. o Basic flaw in Courts decision is Courts failure to conduct the sort of proportionality analysis that Constitution and past cases require. Court must demonstrate that major participation in a felony with a state of mind of reckless indifference to human life deserves the same punishment as intending to commit a murder or actually committing a murder. o Because a that acts with reckless indifference to human life has not chosen to kill, his moral and criminal culpability is of a different degree than that of one who killed or intended to kill.
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of decency. The Court overruled its decision in Stanford, thereby setting the minimum age for eligibility for the death penalty at 18. o The Court explained that the primary criterion for determining whether a particular punishment violates societys evolving standards of decency is objective evidence of a national consensus as expressed by legislative enactments and jury practices. The majority opinion found significant that 30 states prohibit the juvenile death penalty, including 12 that have rejected the death penalty altogether. The Court further noted that juries sentenced juvenile offenders to death only in rare cases and the execution of juveniles is infrequent. The Court found a consistent trend toward abolition of the practice of executing juveniles and ruled that the impropriety of executing juveniles has gained wide recognition. o In addition to considering evidence of a national consensus as expressed by legislative enactments and jury practices, the court recognized that it must also apply its own independent judgment in determining whether a particular punishment is disproportionately severe. When ruling that juvenile offenders cannot with reliability be classified as among the worst offenders, the Court found significant that juveniles are vulnerable to influence, and susceptible to immature and irresponsible behavior. In light of juveniles diminished culpability, neither retribution nor deterrence provides adequate justification for imposing the death penalty. o The Court further noted that that the execution of juvenile offenders violated several international treaties. Concurring Opinion (Stevens and Ginsburg): o Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Courts interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. o The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. Dissent (OConnor): o OConnor agreed that objective evidence presented in Simmons was similar to that presented in Atkins, but while there was no support for the practice of executing the mentally retarded, at least eight states had considered and adopted legislation permitting the execution of 16- and 17year-old offenders. OConnor argued that the difference in maturity between adults and juveniles was neither universal nor significant enough to justify a rule excluding juveniles from the death penalty. Justice OConnor did recognize the relevance of international law, and expressly rejected Justice Scalias contention that international law has no place in evaluating Eighth Amendment claims. Dissent (Scalia, with Thomas and Rehnquist):
o Arguing that the Court improperly substituted its own judgment for that of
the people in outlawing executions of juvenile offenders. He criticized the majority for counting non-death penalty states toward a national consensus against juvenile executions. Scalia also rejected the Courts use of international law to confirm its finding of a national consensus March 31: Proportionality: Nature of the Offense. pp.291-313, Kennedy v. Louisiana (2008) (victim did not die the DP for crimes other than murder, here child molestation). Kennedy v. Louisana (2008)
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Facts:
o Whether the Constitution bars respondent from imposing the DP for the
rape of a child where the crime did not result, and was not intended to result, in death of the victim? Rules:
o 8th Amendment provides that cruel and unusual punishments shall not be
inflicted. Flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. o Punishment is justified under one of 3 principal rationales: rehabilitation, deterrence, and retribution. Capital punishment must thus be limited to those offenders who commit a narrow category of the most serious crimes, and whose extreme culpability makes them the most deserving of execution. o Executions of juveniles and mentally retarded persons are punishments violative of the 8th Amendment because the offender had a diminished personal responsibility for the crime. DP cannot be disproportionate to the crime itself (Tison v. Arizona). o Court has been guided by objective indicia of societys standards, as expressed in legislative enactments and state practice with respect to executions. Holding: o 8th Amendment prohibits the DP for this offense. The Louisiana statute is unconstitutional. o Death sentence for one who raped but did not kill a child and who did not intend to assist another in killing the child is unconstitutional under the 8 th and 14th Amendments. Reasoning: o Court looks to history of DP for crime of rape. Only 6 states have similar statute as Louisiana. Evidence of a national consensus with respect to the DP for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. o No individual has been executed for the rape of an adult or child since 1964. After reviewing contemporary norms, including the history of the DP for this and other nonhomicide crimes, current state statutes and new enactments, and number of excutions since 1964, conclude there is a national consensus against capital punishment for crime of child rape. o Court employs own moral grounds. Acknowledges seriousness and moral outrage over sexual assault on child. Still believe capital punishment is disproportionate penalty for crimes.
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o Fed law now authorizes the DP for a wide range of homicides, including a
number of categories of unintentional killings.
o Fed law authorizes DP for 4 categories of non-homicidal crimes: Treason, espionage, drug trafficking in large amounts, and
attempted murder of a public officer, juror or witness by a major drug trafficker. Capital Punishment Part IV Chapter 9 The Penalty Hearing A. Procedural Rights a. Bullington v. MO specific issue is whether double jeopardy principles apply to the penalty determination. b. Spaziano v. FL Trial judge imposed a death sentence after the jury had recommended a life sentence, and issue is whether had a right to a jury determination as to penalty. c. Ring v. AZ Court must decide whether the has a right to a jury determination of the facts making him death-eligible. d. Gardner v. FL Court considers a due process (fair notice) challenge to the penalty determination B. Evidentiary Limits a. Green v. GA challenges states hearsay rule that barred him from introducing evidence that he was only an accomplice rather than the actual killer. b. Barefoot v. Estelle challenges the prosecutions use of psychiatric testimony to prove future dangerousness. April 1: Additional Process Issues: pp.506-526, Bullington v. MO (1981) (double jeopardy in sentencing?); note: Sattazahn v. Pennsylvania (2003); Spaziano v. Florida (1984) and notes (judicial override of jury recommendation). Bullington v. MO (1981) Issue: o Whether the reasoning of Stroud is also to apply under a system where a jurys sentencing decision is made at a bifurcated proceedings second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the DP may be imposed? Holding: o Jurys decision at petitioners first trial to sentence him to life imprisonment precludes MO from asking jury at petitioners second trial to sentence him to death. Having received one fair opportunity to offer whatever proof it could assemble, State is not entitled to another. o Unacceptably high risk that prosecution would wear down a with another capital trial, thereby leading to an erroneously imposed death sentence, would exist if State were to have further opportunity to convince a jury to impose the ultimate punishment.
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Facts:
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o Sentence of life imprisonment which received at his first trial meant that
jury had already acquitted of whatever was necessary to impose death sentence. Verdict of acquittal on issue of guilt/innocence is absolutely final. Values that underly that principle equally applicable when jury has rejected states claim that deserves to die. Dissent (Powell, with Chief, White and Rehnquist): o Finds wholly unpersuasive the Courts justification for applying the implicitacquittal principle to sentencing. Courts opinion irreconcilable in principle with precedents. o Imposition of sentence does not operate as an implied acquittal of any greater sentence. No objective measure by which the sentencers decision can be deemed correct or erroneous if it is duly made within the authority conferred by the legislature. o Fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal. o Possibility of a higher sentence is acceptable under the DJC, whereas the possibility of error as to guilt or innocence is not, because second jurys sentencing decision is as correct as the first jurys. When found guilty, must bear ordeal of being sentenced just as he does ordeal of serving sentence.
Spaziano v. FL (1984) Issue: o Trial judge imposed a death sentence after the jury had recommended a life sentence, and issue is whether had a right to a jury determination as to penalty. o urges that allowing a judge to override a jurys recommendation of life violates the 8th Amendments proscription against cruel and unusual punishments. Because the jurys verdict of life should be final, argues, the practice also violates the 5th Amendments DJC. urges that practice violates 6th Amendment and DPC of 14th by drawing on Courts recognition of value of jurys role o Whether, given a verdict of life, the judge may override that verdict and impose death? Holding: o In light of the facts that the 6th Amendment doesnt require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the DP requires jury sentencing, Court cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional. Unwilling to say there is any right way for State to set up its capital sentencing scheme.
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Notes (pp.525-526): o Elected judges and the DP 39 states provide that some or all of their judges must be voted on, in competitive or retention elections, at some time in their careers. In 30 of 35 DP states, trial court judges must stand for election, and in all but 4 of those, same is true of appellate judges. Stevens noted there were substantially different results when judges, rather than juries, made penalty decision in a capital case. AL judges vetoed only 5 jury recs of death, but overrode jury recs of life in order to impose DP on 47 s. In FL, judges overrode jury recds 134 times to impose DP, but only 51 for life. In IN, overrides to impose 8 DP, only 4 life sentences. Stevens attributed differences to fact that jurors, even those who support candidates who are tough on crime, are not subject to same political pressures as elected judges.
April 5: pp.526-545, Ring v. AZ, Gardner v. FL and notes Ring v. AZ (2002) Issue: o 6th Amendment right to a jury trial in capital prosecutions. o Whether that aggravating factor required to be found to impose death may be found by the judge, as AZ law specifies, or whether the 6 th Amendments jury trial guarantee, made applicable to the states by the 14th Amendment, requires that the agg factor determination be entrusted to the jury? Holding: o Court overrules Walton in relevant part. Capital defendants, no less than non-capital defendants, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
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requiring presence of agg circ in capital cases by entrusting those determinations to the jury. Scalia, with Thomas (concurring): o What compelled AZ and many other states to specify particular agg factors that must be found before DP imposed was Courts cases beginning with Furman. In his view, that line of decisions had no proper foundation in Constitution. Reluctant to magnify the burdens that Furman jurisprudence imposes on States. o Believe fundamental meaning of jury-trial guarantee of 6 th Am. is that all facts essential to imposition of level of punishment receives must be found by jury beyond reasonable doubt. o Since Walton, 2 realizations: 1) impossible to id with certainty those agg factors whose adoption has been wrongfully coerced by Furman, as opposed to those that State would have adopted in any event. 2) Accelerating propensity of both state and fed legislatures to adopt sentencing factors determined by judges that increase punishment beyond whats authorized by jurys verdict, and witnessing belief by Court that thats ok, causes him to believe peoples traditional belief in right of trial by jury is in decline. o What todays decision says is that jury must find the existence of the FACT that agg factor existed. Those States that leave ultimate life or death decision to judge may continue to do so by requiring prior jury finding of agg factor in sentencing phase or by placing agg factor determination in guilt phase. Kennedy (concurring): o No principled reading of Apprendi will allow Walton to stand. During penalty phase of 1st degree murder prosecution in AZ, finding of agg circ exposes to greater punishment than that authorized by jurys guilty verdict. When finding has this effect, Apprendi makes clear it cannot be reserved for judge. o Apprendi and Walton cant stand together as law Breyer (concurring): o Believes jury sentencing in capital cases mandated by 8th Amendment. o 8th Amendment requires that jury, not judge, make decision to sentence to death. 1) belief that retribution provides main justification for capital punishment; and 2) assessment of jurys comparative advantage in determining in particular case whether capital punishment will serve that end. o In respect to retribution, jurors possess important comparative advantage over judges. Reflect composition and experiences of community as a whole. OConnor, with Chief (Dissenting):
Would choose to overrule Apprendi, not Walton. Believes Apprendi decision serious mistake. Apprendis rule that any fact that increases max penalty must be treated as element of crime is not required by Constitution, by history, or by prior cases. Rule contradicts several prior cases. Ignores significant history in this country of discretionary sentencing by judges. o Severely destabilizing effect on criminal justice system. Would unleash floods of petitions by convicted s seeking to invalidate their sentences in whole or in part on Apprendi. Apprendi threw countless sentences into doubt and caused enormous increase in workload of overburdened judiciary. o Decision today will add to these effects. Court effectively declares 5 states capital sentencing schemes unconstitutional. o Would overrule Apprendi instead of Walton
Gardner v. FL (1977) Issue: o argued sentencing court erred in considering the presentence investigation report, including the confidential portion, in making the decision to impose the DP. Holding: o This procedure doesnt satisfy the constitutional command that no person shall be deprived of life without due process of law. o Even if it were permissible to withhold a portion of the report from , and even from counsel, pursuant to an express finding of good cause for nondisclosure, it would nevertheless be necessary to make the full report a part of the record to be reviewed on appeal. o Petitioner was denied due process of law when death sentence was imposed, at least in part, on basis of information which he had no opportunity to deny or explain. Facts: o convicted of first-degree murder and sentenced to death. When trial judge imposed death sentence stated was relying in part on information in a presentence investigation report. Portions of the report were not disclosed to counsel for the parties. Without reviewing the confidential portion of the presentence report, the SC of FL affirmed the death sentence. o Jury had recommended life sentence, finding mitigating outweighed aggravating. Judge imposed death based on evidence presented at both stages of bifurcated proceeding, the arguments of counsel and his review of the factual information contained in the presentence investigation. o Record on appeal did NOT include confidential portion of the presentence report. Rules: o Death is a different kind of punishment from any other. Different in severity and finality. Differs dramatically from any other legit state action.
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April 7: pp.545-564, Green v. GA, Barefoot v. Estelle and notes Green v. GA (1979) Issue:
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Barefoot v. Estelle (1983) Issue: o argues death sentence must be set aside because Constitution barred testimony of 2 psychiatrists who testified against him at punishment hearing. 1) urged that psychiatrists, individually and as group, are incompetent to predict with acceptable degree of reliability that a particular criminal will commit other crimes in future and so represent a danger to community. 2) said that in any event, psychiatrists should not be permitted to testify about future dangerousness in response to hypothetical questions and without having examined personally. 3) Argued that in particular circumstances of case, testimony of psychiatrists so unreliable that sentence should be set aside. Holding: o Court rejects each of these arguments o Psychiatric testimony about a s future dangerousness is admissible.
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o o
In present state of psychiatric knowledge, this is too much. When persons life is at stake, greater requirement of reliability should prevail. Despite psychiatrists claims that they were able to predict s future behavior within reasonable psychiatric certainty, or to a one hundred percent and absolute certainty, there was in fact no more than 1 in 3 chance they were correct. Impossible to square admission of this purportedly scientific but actually baseless testimony with the Constitutions paramount concern for reliability in capital sentencing. Admission of unreliable psychiatric predictions of future violence, offered with unabashed claims of reasonable medical certainty or absolute professional reliability, creates an intolerable danger that death sentences will be imposed erroneously. Psychiatric predictions of future dangerousness are not accurate. Courts commitment to ensuring that death sentences are imposed reliably and reasonably requires that nonprobative and highly prejudicial testimony on the ultimate question of life or death be excluded from a capital sentencing hearing. Evidence suggests that juries are not effective at assessing the validity of scientific evidence. Psychiatric predictions of future violence will have an undue effect on the ultimate verdict. Risk that jury will be incapable of separating scientific myth from reality is deemed unacceptably high. Even at best, presentation of defense psychiatrists will convert the death sentence hearing into a battle of experts.
Notes (pp.561-563): Estelle v. Smith (1981) o SC found s constitutional rights violated by introduction of Dr.s testimony at penalty phase of trial, and affirmed grant of habeas corpus relief. o At sentencing hearing, Dr. whod examined for competency to stand trial testified that hed be danger to society. o SC held s 5th Amendment rights had been violated because he hadnt been warned before competency exam that statements could be used against him. Found 6th Am. rights violated since competency exam was critical stage of prosecution and Smiths counsel had not been notified in advance that exam would encompass future dangerousness. Statutory challenges to the reliability of psychiatric testimony o Daubert rule (1993) SC held that to be admissible under Fed Evid 702, scientific, technical, or specialized evidence must be shown to be relevant and reliable. Future dangerousness as an aggravator o TX is one of few states that makes future dangerousness an aggravating factor for purposes of death eligibility.
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o 2 arguments by critics against using it: 1) as studies since Barefoot have confirmed, even using newer
methodologies for predicting future violence, error rate in such predictions is extraordinarily high, around 50%. 2) Purpose served by imposing DP on based on finding of future dangerousness is incapacitation, but DP is clearly excessive for that purpose since life imprisonment, especially without possibility of parole and perhaps with isolation, would do as well. Race and Dangerousness o At penalty hearing, former chief psychologist testified would be future danger to society in part because he was Hispanic and Hispanics have higher crime rate than other people. sentenced to death. o SC vacated judgment and remanded the case Experts testimony violated 8th Amendment.
Capital Punishment April 8 April 12, including make-up class. Chapter 10 Guiding the Sentencer April 8: pp. 615-638, California v. Ramos, Caldwell v. Mississippi, Simmons v. South Carolina California v. Ramos (1983) Facts: o challenges the Briggs Instruction mandated under CA law. Contends that 1) capital sentencing jury may not constitutionally consider possible commutation, and 2) that the Briggs instruction unconstitutionally misleads the jury by selectively informing it of the Governors power to commute one of its sentencing choices but not the other. Issue: o Constitutionality under the 8th and 14th Amendments of instructing a capital sentencing jury regarding the Governors power to commute a sentence of life without possibility of parole? Rules: o In addition to requiring jury instructions on aggravating and mitigating circumstances, CA law requires that the trial judge inform the jury that a sentence of life imprisonment without the possibility of parole may be commuted by the Governor to a sentence that includes the possibility of parole. o Future dangerousness is a relevant consideration in EVERY sentencing hearing. Holding: o Capital sentencing jurys consideration of the Governors power to commute a life sentence is not prohibited by the Federal Constitution. o The Briggs Instruction does not violate any of the substantive limitations this Courts precedents have imposed on the capital sentencing process. It does not preclude individualized sentencing determinations or
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consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jurys deliberation. Finally, its failure to inform the jury also of the Governors power to commute a death sentence does not render it constitutionally infirm. Therefore, Court defers to the States identification of the Governors power to commute a life sentence as a substantive factor to be presented for the sentencing jurys consideration. Reasoning: o By bringing to the jurys attention the possibility that may be returned to society, the Briggs Instruction invites the jury to assess whether is someone whose probable future behavior makes it undesirable that he be permitted to return to society. Briggs Instruction focuses jury on s probable future dangerousness (approved as factor in Jurek). o Briggs Instruction gives jury accurate information of which and his counsel are aware. Doesnt preclude from offering any evidence or argument regarding Governors power to commute a life sentence. o Jurys deliberation is still individualized. Instruction invites jury to consider what might do, not what Governor might do. o Unconvinced Briggs Instruction constrains the jurys sentencing choice. Just places before the jury an additional element to be considered.
Caldwell v. Mississippi (1985) Facts: o Prosecutor urged the jury not to view itself as determining whether the would die, because a death sentence would be reviewed for correctness by the State Supreme Court. Prosecutor sought to minimize the jurys sense of the importance of its role. o Petitioners contention that the prosecutors argument rendered the capital sentencing proceeding inconsistent with the 8th Amendments heightened need for reliability in the determination that that death is the appropriate punishment in a specific case (Woodson v. North Carolina). Issue: o Whether a capital sentence is valid when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case? Rules: o 8th Amendment jurisprudence has taken as a given that capital sentencers would view their task as a serious one of determining whether a specific human being should die at hands of State. Holding: o Constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the s death rests elsewhere
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Simmons v. South Carolina (1994) Facts: o Petitioner was parole ineligible due to earlier offenses when capital murder trial began. o Over defense counsels objection, trial court granted prosecutions motion for an order barring the defense from asking during voir dire any question regarding parole. Forbidden even to mention subject of parole, despite prosecution arguing that s future dangerousness was factor for jury to consider when fixing appropriate punishment. o Petitioner argued that, in view of publics apparent misunderstanding about meaning of life imprisonment in South Carolina, there was a reasonable likelihood that jurors would vote for death simply because they believed, mistakenly, that petitioner would eventually be released on parole.
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o Trial court refused any such instruction where the court would tell jurors
that sentence to life imprisonment means sentenced to imprisonment in state penitentiary for balance of natural life Issue:
o Whether the Due Process Clause of the 14th Amendment was violated by
the refusal of a state trial court to instruct the jury in the penalty phase that under state law the defendant was ineligible for parole? Rules:
o Due Process Clause does not allow the execution of a person on the basis
of information which he had no opportunity to deny or explain.
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April 12: pp. 638-658, notes following Simmons, Weeks v. Angelone, and another look at Essay: What do Jurors Understand? (653-658, previously assigned). Notes (p.639) Ramdass v. Angelone 3-strikes rule in VA. Under this law, convicted and sentenced for murder and 2 robberies would be ineligible for parole. convicted but not yet sentenced. Court refused to give Simmons instruction. Because convicted and has 3rd strike, not eligible for parole. Prosecution argues he hasnt yet been sentenced for earlier strike, so technically he is still eligible for parole so not entitled to Simmons instruction o Theory being something might happen so that prior conviction not going to stick. Court Procedural. o 5-4 for prosecution. No constitutional right to have jury hear it o Doesnt mean trial court couldnt have done it and prosecution couldnt have objected. Kennedy - habeas relief was not warranted because defendant's third conviction under Virginia's three-strike rule was not final under Virginia law at time jury considered sentence in murder case. Weeks v. Angelone (2000) Facts: o During sentencing, jury asked question does sentence of life imprisonment in VA have the possibility of parole, and if so, under what conditions must be met to receive parole? Judge responded You should impose such punishment as you feel is just under the evidence, and within the instructions of the Court. You are not to concern yourself with what may happen afterward. o Jury asked second question, If we believe that is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the DP? Or must we decide (even though he is guilty of one of the alternatives) whether or not to issue the DP, or one of the life sentences? What is the rule? Please clarify? Judge responded by pointing to second paragraph of instructions. o Prosecution stated that judges solution was appropriate. counsel argued that jury should be instructed that even if they find one or both mitigating factors, they still may impose a life sentence. Issue: o Question whether the Constitution is violated when a trial judge directs a capital jurys attention to a specific paragraph of a constitutionally sufficient instruction in response to a question regarding the proper consideration of mitigating circumstances? Rules: o Buchanan v. Angelone Court considered whether the 8th Amendment required that a capital jury be instructed on particular mitigating factors. Buchanans jury was given precisely the same VA pattern capital instruction given to s jury here.
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(Sections 1 and 2), Tollette v. State (2005)(Section 11), Bryant v. State (on TWEN), Kelly v. California (2008)(Stevens dissent, Breyer dissent). Payne v. Tennessee (1991) Facts: o sentenced to death for 2 counts first-degree murder. At trial, despite overwhelming evidence against him, testified he hadnt harmed any of the victims. During sentencing, had 4 witnesses testify on his behalf. o State presented testimony of grandmother, who testified about how boy had been affected by murders of his mother and sister. In arguing for DP, prosecutor commented on the continuing effects of grandsons experience. There is something [jury] can do for Nicholashe is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer. Issue: o Court now reconsidering Booth and Gathers that 8th Amendment prohibits a capital sentencing jury from considering victim impact evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victims family. Rules: o Previous holdings: Booth v. Maryland and South Carolina v. Gathers, which held that 8th Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial. o Booth Court held 5-4 that 8th Amendment prohibits jury from considering a victim impact statement at the sentencing phase of a capital trial. Admissibility of victim impact evidence NOT to be determined on case-by-case basis, but that such evidence was PER SE inadmissible in sentencing phase of capital case except to extent that it related directly to circumstances of crime. o Gathers Court extended Booth rule to statements made by a prosecutor to sentencing jury regarding personal qualities of victim. o Except to extent victim impact evidence relates directly to circumstances of crime, prosecution may not introduce such evidence at a capital sentencing hearing because it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner. o States remain free, in capital cases, to devise new procedures and new remedies to meet felt needs. Holding: o State may properly conclude that for the jury to assess meaningfully the s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the . State has a legitimate interest in counteracting the mitigating evidence which the is entitled to put on.
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o If the State chooses to permit the admission of victim impact evidence and
prosecutorial argument on that subject, the 8th Amendment erects no per se bar. A State may legitimately consider the evidence about the victim and about the impact of the murder on the victims family is relevant to the jurys decision as to whether or not DP should be imposed Reasoning: o Assessment of harm caused by the as a result of the crime charged has understandably been an important concern of the criminal law. o Misreading of Woodson, which required that capital be treated as a uniquely individual human being. Language from Woodson as quoted in Booth not intended to describe a class of evidence that could NOT be received, but a class of evidence that MUST be received. o Evidence relating to victim often before jury during guilt phase. o Victim impact evidence not offered to encourage comparative judgments where juries permitted to find that defendants whose victims were assets to community more deserving of punishment than those whose victims more worthless (homeless man as victim scenario). Designed instead to show victims uniqueness as individual human being o Victim impact evidence simply another form or method of informing sentencing authority about specific harm from crime in question. Doesnt lead to arbitrary imposition of the DP Dissent (Stevens): o Courts decision represents a dramatic departure from the principles that have governed capital sentencing jurisprudence for decades. Sharp break from past decisions. o Victim impact evidence serves no purpose other than to appeal to the sympathies or emotions of the jurors and has never been considered admissible. o 2 flaws related to 8th amendments command DP not be handed out arbitrarily or capriciously: 1) aspects of character of victim unforeseeable to at time of crime are irrelevant to personal responsibility and moral guilt and therefore cant justify DP. 2) quantity and quality of victim impact evidence sufficient to turn life sentence into DP is not defined until after crime has been committed and therefore cant be applied consistently in cases. o Allows a jury to hold responsible for whole array of harms he could not foresee and for which is not therefore blameworthy. o Only function is to divert jurys attention away from s background and record, and circumstances of crime. Notes (pp.599-601): o Response to Payne Payne holds that victim impact evidence and argument does NOT violate 8th Amendment, but does NOT hold that victim impact evidence must be admitted, or even that it should.
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Virtually all jurisdictions permit intro of some form of it o Victim Impact Evidence In addition to or in lieu of victim impact testimony, prosecutors in
some jurisdictions have introduced victim impact videos at penalty phase. Videos generally a narration of victims life with music and video clips/photos. May include interviews and scenes of grave. Most courts to rule on question have approved use of such videos. o Kelly case (video watched in class) Prosecution played 20 minute video of montage of birth -19. 3 justices dissented from denial of certiorari. Stevens said that videos moving portrayal of lives of victims added nothing relevant to jurys deliberations and invited a verdict based on sentiment, rather than reasoned judgment. Argues its irrelevant because doesnt go to s character OR circumstances of the crime. In some senses quantifying the harm.
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GA Victims Rights Statute 17-10-1.2 Admissibility of certain evidence subsequent to adjudication of guilt: o Has section dealing with DP trials. Court has let in evidence about emotional impact. o Court shall allow evidence from family of victim, or such other witness having personal knowledge of victims personal characteristics and emotional impact of crime on victim, victims family, or community. Such evidence shall be given in presence of and of jury and shall be subject to cross-examination. o Evidence may be in form of, but not limited to, written statement or prerecorded audio or video statement, provided witness subject to crossexam and evidence not available to jury during deliberations. Livingston v. State (1994) o Uphold constitutionality of 17-10-1.2. Do so because legislature has employed sufficient safeguards within the state to ensure that victim impact evidence will not be admitted which reflects factors which this court has found constitutionally irrelevant to DP sentencing, and which could result in the arbitrary and unconstitutional imposition of the DP. o Trial court must hear and rule prior to trial on the admissibility of victim impact evidence sought to be offered. o State gives trial court discretion to exclude victim impact evidence altogether, limits evidence related to impact of offense upon victims family or community, and states it will be permitted only in such a manner and to a degree such as not to inflame or unduly prejudice the jury. Turner v. State (1997)
o Procedure used by state and trial court in this case has much to commend
it. Enable jury to hear evidence allowable under 17-10-1.2 but also ensures evidence that might be unduly prejudicial is not admitted. o By providing copy of statement to defense and court before sentencing phase, trial court may ensure statement doesnt contain highly inflammatory statements. Because witness reading prepared statement, witness is less likely to lose control and inadvertently offer highly emotional and potentially prejudicial testimony. Tollette v. State (2005) o In pretrial hearing, prosecutor presented victim impact evidence it intended to present at trial, including short videotape of victim alive. o OCGA 17-10-1.2 permits evidence from family of victim, or such other witness having personal knowledge of victims personal characteristics. o Court holds that such evidence encompasses a silent videotape of victim in life. Language in OCGA 17-10-1.2 providing that such evidence shall be subject to cross-examination is satisfied when person identifying a videotape of victim is subject to cross-exam. Kelly v. California (2005) Stevens dissenting from denial of certiorari o Dealing with aforementioned video with montage of victims life. Remains convicted that views expressed in Payne dissent are sound, and per se rule announced in Booth is wiser and more faithful to rule of law than recent jurisprudence o These videos are far cry from written victim impact evidence at issue in Booth and brief oral testimony of Payne. They exceed the quick glimpse Courts majority contemplated when they overruled Booth in 1991. o Here, victim impact evidence enhanced with music, photographs, video footage. Risk of unfair prejudice overwhelming. Videos added nothing to jurys deliberations and invited verdict based on sentiment, rather than reasoned judgment. Kelly v. California (2005) Breyer dissenting with denial of certiorari o Films personal, emotional and artistic attributes create legal problem. Render films purely emotional impact strong, perhaps unusually so. Those aspects of film (music, artistic images) tell jury little or nothing about crimes circumstances. o Minimal probity coupled with videos purely emotional impact that may call due process protections into play.
Capital Punishment Part 6 April 14- April 21 Chapter 7 The Defendant and Defense Counsel April 14: pp. 384-408, the Role of Defense Counsel: Godinez v. Moran and Strickland v. Washington Godinez v. Moran (1993) Facts:
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o killed 3. After plead not guilty, trial court ordered him to be examined by
pair of psychiatrists, both of whom concluded he was competent to stand trial. o 2 months later, informed court wished to plead guilty and discharge attorneys in order to prevent presentation of mitigation evidence at his sentencing. o Trial court found that respondent knowingly and intelligently waived his right to assistance of counsel, and his guilty pleas were freely and voluntarily given. o filed petition for post-conviction relief in state court. Claimed that he was mentally incompetent to represent himself and change his pleas Issue: o Whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial? Rules: o Criminal may not be tried unless he is competent. May not waive his right to counsel or plead guilty unless he does so competently and intelligently. o Standard for competence to stand trial is whether the has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. o choosing self-representation must do so competently and intelligently, but technical legal knowledge is not relevant to determination whether he is competent to waive his right to counsel. Holding: o It is not higher. The standard is the same Reasoning: o Court can conceive of no basis for demanding a higher level of competence for those s who choose to plead guilty or waive right to counsel. No reason to believe it requires a higher level of mental functioning than decision to waive other constitutional rights. o A finding that is competent to stand trial is not all thats necessary before he may be permitted to plead guilty or waive right to counsel. Trial court must satisfy that the waiver of his constitutional rights is knowing and voluntary. Heightened standard for pleading guilty and for waiving right to counsel, but not a heightened standard for competence. Dissent (Blackmun and Stevens): o clearly under influence of drug given to him. Finding that is competent to stand trial establishes only that he is capable of aiding his attorney in making the critical decisions at trial or in plea negotiations. Reliability or even relevance of such a finding vanishes when its basic premise, that counsel will be present, ceases to exist. o Question no longer whether he can proceed with an attorney, but whether he can proceed alone and uncounseled
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Notes p.393: o Competence to represent oneself In Indiana v. Edwards: the Ct considered whether a found competent to stand trial could be found incompetent to represent himself. Trial court, in a non-capital case, held that the was competent to stand trial, but denied his request to rep himself on the ground that he was not competent to defend himself. USSC found that there was no const violation, distinguishing Godinez on 2 grounds, 1) Godinez concerned the competence of a D who wanted to plead guilty, not, as in the case at bar, a D who wanted to go to trial, AND 2) Godienz held only that a state may permit a mentally ill D to plead guilty, but did not decide the converse, whether a state may deny a mentally ill D the right to rep himself. o Burden of Proof on Incompetence In 2 cases, USSC has set forth constitutional rules regarding the burden of proof for incompetence. Burden of proof often of paramount importance since party bearing burden of proof bears risk of erroneous decision. Medina v. CA Court held that state may presume is competent and require him to shoulder burden of proving his incompetence by preponderance of evidence. Cooper v. OK Court held that although state may presume is competent, it may not require that prove his incompetence by clear and convincing evidence. Court held that because rule allowed state to try a who was more likely than not incompetent, it threatened the basic fairness of the trial itself in violation of due process clause.
Strickland v. Washington (1984) Facts: o waived right to jury even though counsel advised him not to. Plead guilty to all charges. Attorney felt hopeless about overcoming evidentiary effect of respondents confessions to the crimes. o attorney at sentencing argued s remorse and acceptance of responsibility should justify sparing him from DP. Also argued lack of criminal activity and extreme mental and emotional disturbance. DIdnt cross-exam med experts. o Trial judge found numerous aggravating circumstances and no or single mitigating circumstance. o challenged Issue:
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Rules:
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unreasonable, counsels conduct did not cause sufficient prejudice to Mr. Washington to warrant setting aside his DP.
Reasoning: o How judges may assess claims of ineffective assistance of counsel Highly deferential: every effort be made to eliminate the distorting effects of hindsight to reconstruct the circumstances of attorneys challenged conduct, and to evaluate the conduct from counsels view at the time. Ct must have strong presumption that counsels conduct falls w/in wide range of reasonable professional assistance, that the D must overcome the presumption that, under the circumstances the challenged action might be considered sound trial strategy. A ct deciding an actual ineffectiveness claim must judge the reasonableness of counsels challenged conduct on the facts of the particular case, viewed as of the time of counsels conduct. A convicted D making a claim of ineffective assistance must id the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Ct must then determine whether, in light of all circumstances, the id-ed a/o were outside the wide range of professionally competent assistance. In making determination, ct should keep I mind that attorneys function is to make the adversarial testing process work in the particular case. At the same time, the ct should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Reasonableness of attorneys actions may be determined or substantially influenced by Ds own statements or actions. An error by attorney, even if professionally unreasonable does NOT warrant a setting aside the judgment of criminal proceeding if the error had no effect on the judgment. In making determination whether errors resulted in required prejudice, ct should presume that judge/jury acted according to law. So actual process of decision, if not part of record of the proceeding under review should not be considered in prejudice determination.
April 15: pp. 408-432, Wiggins v. Smith and Rompilla v. Beard and notes Wiggins v. Smith (2003) Issue: o Did the US Ct of Appeals err in upholding MD Ct of Appeals rejection of s claim that his attorneys failure to investigate his background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings violated his 6th Amendment rights?
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Holding: o Yes, case thus remanded. o Available mitigating evidence, taken as a whole, might well have influenced the jurys appraisal of s moral culpability, so court reverses. Facts: o Opening statement mentioned his clean record, but no other introduction of s history/family background for the rest of trial. was sexually abused, starved (paint chip case). Judge said that he couldnt remember a capital case where counsel had not compiled a social history of the , but this court ended up denying s petition for post-conviction relief. o MD Ct. of App affirmed denial Rules: o Under Antiterrorism and Effective DP Act of 1996 (AEDPA), would be entitled to relief only if he showed that the state court decision was contrary to, or involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts. o Under Strickland, a must show that counsels performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a must show that attorneys representation fell below an objective standard of reasonableness. o Test here Whether the investigation supporting counsels decision not to introduce mitigating evidence of s background was itself reasonable (NOT whether attorney should have presented a mitigation case). o Rule: in assessing the rzbness of an attys investigation, a ct must consider not only the quantum of evd already known to counsel, but also whether the known evd would lead a rzb atty to investigate further. Even assuming that attys ltd the scope of their investigation for strategic reasons, Strickland does NOT estb that a cursory investigation automatically justifies a tactical decision w/ respect to sentencing strategy. RATHER: a reviewing ct must consider the rzbness of the investigation said to support that strategy. o Strickland rule: strategic choices made after less than complete investigation are rzb precisely to the extent that rzb prof judgments support the limitations on investigation. Reasoning: o Here, s decision to limit the scope of their investigation into potential mitigation evidence was deficient performance. o Record shows attorneys investigation came from 3 sources shrink (test said nothing about life history) presentence investigation report with 1 page summary of miserable life, and department of social services (s many placements). o Attorneys decision NOT to expand investigation beyond PSI and DSS fell short of the professional standards that were in MD at the time.
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Rompilla v. Beard (2005) Issue: o Is attorney bound to make reasonable efforts to obtain and review material counsel knows prosecution will rely on as evidence of aggravation at the sentencing phase of trial? Holding: o Held: even when a capital Ds family members and the D himself have suggested that no mitigating evd is available, his atty is bound to make rzb efforts to obtain and review material that counsel knows the pros
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Facts:
o Atty did talk to family and D, but didnt follow other avenues: specifically
Ds prior conviction. D atty knew Pros was going to use this, the rape VS testimony and such, but atty never looked at the file until warned by Pros. Similar crime too, so very convincing evd presented by state and D had no plan to rebut. Rules:
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o List of evd that atty failed to investigate is long: no family history, no shrink
eval. This fell below an objective std of rzbness. So only issue left is whether attys inadequate investigation prejudiced outcome of sentencing? o Maj arg of: DC finding that D waived his right to present any and all mitigating evd, has no supporting the Const Long held: Ds waiver of his trial rights cannot be given effect unless it is knowing and intelligent and voluntary. And Ds statements did not constitute a knowing and intelligent waiver under the cts precedents. If waiver, then waiver is product of atty bad investigation. o Even if D knew all shit about childhood/alcoholic mom, we cannot assume that he could understand their consequences in the way an expert shrink would. And bc atty didnt do proper investigation, D didnt know this impt evd was available to him. Unless D knew of the most significant mitigation evd available to him, he could not have made a knowing and intelligent waiver of his const rights o Ds bad behavior and listed convo with judge deos NOT estb that D would have waived right to present other mitigating evd if his counsel had made it available to him. Discussion only about birth mom and ex, nothing about mitigating evd in general. Mickens v. Taylor (2002) Issue: o What must show in order to show a 6th Amendment where trial court fails to inquire into potential conflict of interest about which it knew or reasonably shouldve known? o ONLY question presented today was the effect of a tcs failure to inquire into a potential conflict upon the Sullivan rule that deficient perf of counsel must be shown. Holding: o It was necessary, for to avoid conviction, to establish that the conflict of interest adversely affected his counsels performance. Court of App found no such effect, so denial of habeas relief affirmed. Facts: o s claim That he was denied effective assistance of counsel bc one of his ct appointed attys had a conflict of interest at trial. That atty was representing the victim on assault and weapon charges at time of murder. 2 days after that atty excused from Vs case bc V was dead, he was assigned Ds case for Vs murder.atty didnt tell court he had previously represented the V. D learned about atty prior rep when clerk gave wrong file, bc juvie files supposed to be confidential. C of A affirmed the DCs denial of habeas relief. WE AFFIRM C oF A, no habeas relief granted. Rules: o General rule: D alleging 6th A violation must show a rzb prb that, but for counsels unprof errors, the result of proceeding would have been dif.
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April 21: pp. 457-472, Murray v. Giarratano, right to counsel in collateral Murray v. Giarratano (1989) Right to Counsel in collateral (habeas proceedings) Issue: o Prisoners claimed, based on several theories, that the Constitution required that they be provided with counsel at the Commonwealths expense for the purpose of pursuing collateral proceedings related to their convictions and sentences. o Whether VAs procedure for collateral review of capital convictions and sentences assures its indigent death row inmates an adequate opportunity to present their claims fairly? Holding: o Appointment of counsel upon request is NOT necessary for the prisoners to enjoy their const right to access to the cts in pursuit of state habeas relief. o No inconsistency between holding of Bounds and Finley; the holding of neither squares with present case. o Now hold that Finley applies to those inmates under sentence of death as well as to other inmates, and that holding necessarily imposes limits on Bounds. o Rule of Finley should apply no different to capital cases than noncapital. Additional safeguards imposed by 8th Amendment at the trial stage of a capital case are sufficient to assure the reliability of the process by which the DP is imposed. Facts: o D prisoner complaint against Director of VA Dept. of Corrections. Death row prisoners bringing claim. o Cts below went contrary to recent decision in Finley and misread bounds. Finley held: DPC or EP guarantee of meaningful access did NOT require state to appoint counsel for indigent prisoners seeking state postconviction relief. 6th and 14th A right of indigent D to counsel at trial stage of criminal proceeding and for initial appeal of judgment and sentence of tc. BUT right to counsel at these early stages does not carry over to discretionary appeal (trial: atty is the Ds shield, appeal: atty is sword to upset prior deterimination of guilt). So held in Finley that there was no fed const right to counsel for indigent prisoners seeking postconviction relief. finley NOT about dp though, so ppl argue the reasoning that death should be dealt w/ specialy (locket: requires a greater degree of reliability when it is imposed) BUT these holdings dealth with trial stage of capital murder. Smith v murray : held that fact that dp has been imposed requires a dif std of review on fed habeas. Direct appeal is primary avenue for review of a conviction or sentence, and dp cases are no exception. So non capital finley rule should apply to capital cases, and finley rule imposes limits on Bounds case holding.
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Reasoning: o VA may sensibly decide to concentrate the resources it devotes to providing attorneys for capital s at the trial and appellate stages of a capital proceeding. Capable lawyering there would mean fewer colorable claims of ineffective assistance of counsel to be litigated on collateral attack. Concurring in judgment (Kennedy, with OConnor): o Unlike Congress, Court lacks capacity to undertake searching and comprehensive review called for in this area. o While VA has not adopted procedures for securing representation that are as far reaching and effective as those available in other States, no prisoner on death row in VA has been unable to obtain counsel to represent him in postconviction proceedings, and VAs prison system is staffed with institutional lawyers to assist in preparing petitions for postconviction relief. o No prepared to say this scheme violates Constitution. Dissent (Stevens, with Brennan, Marshall and Blackmun): o Right question in this case is not whether there is an absolute right to counsel in collateral proceedings, but whether due process requires that these respondents be appointed to counsel in order to pursue legal remedies. 3 difs btw this case and Finley show that even if it is permissible to leave an ordinary prisoner to his own resources in collateral proceedings, it is fundamentally unfair to require an ingident death row inmate to initiate collateral review w/o counsels guiding hand. 1) in these case, ppl condemned to die. Unique thing about dp requires more legal counsel, 2) VA law shit, 3) plight of death row inmate constrains his ability to wage collateral attacks far more than does the lot of the ordinary inmate considered in Finley. o To obtain an adequate opportunity to present their postconviction claims fairly, death row inmates need greater assistance of counsel than VA affords them. o Meaningful access, and meaningful judicial review, would be effected in this case only if counsel were appointed, on request, in time to enable examination of the case record, factual investigation, and preparation of a petition containing all meritorious claims, which the same attorney could then litigate to its conclusion. Notes o Access to counsel in state post-conviction proceedings: w/o fed const right to appointed counsel in state post conviction proceedings, the right to counsel is determined by state law. states differ greatly. Issue with it though in money with state funding. o ABA guidelines for appointment and performance of counsel in DP cases:
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