# In Re the Personal Restraint of Rupe

> Washington Supreme Court · October 18, 1990 · 115 Wash. 2d 379

URL: https://www.frixlaw.com/law-library/cases/9587476

## Case

- **Full name:** In the Matter of the Personal Restraint of Mitchell E. Rupe, Petitioner
- **Court:** Washington Supreme Court
- **Decided:** October 18, 1990
- **Citations:** 115 Wash. 2d 379; 798 P.2d 780; 1990 Wash. LEXIS 100
- **Precedential status:** Published
- **Opinion:** Dissent by Utter
- **Judges:** Brachtenbach, Utter
- **Cited by:** 18 later opinions in the Frix Law Library

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## Opinion text

Utter, J.
(dissenting)—The majority's conclusion that the United States Supreme Court decisions in California v. Brown, 479 U.S. 538 , 93 L. Ed. 2d 934 , 107 S. Ct. 837 (1987), and Saffle v. Parks, _U.S. _, 108 L. Ed. 2d 415 , 110 S. Ct. 1257 (1990), compel the holding that sympathy *402 for the defendant is an impermissible consideration for the jury in the penalty phase of a capital case is simply wrong. Under United States Supreme Court doctrine and our statutes, the purpose of presenting mitigating evidence is to elicit feelings of sympathy based on some aspect of the defendant's character or background that prompts the jury to exercise mercy and not impose the death penalty.
Sympathy based on the evidence always has been and still is a factor in the jury's determination. Nothing in California v. Brown, supra, or Saffle v. Parks, supra, alters this. Brown stands for the proposition that jurors are to be cautioned against relying on extraneous emotional factors. The Court said, "By concentrating on the noun 'sympathy,' respondent ignores the crucial fact that the jury was instructed to avoid basing its decision on mere sympathy." Brown, 479 U.S. at 542 . Thus, the basis of the decision is the qualifying term "mere". The Court found that a reasonable juror would interpret the jury instruction as "a directive to ignore only the sort of sympathy that would be totally divorced from the evidence adduced during the penalty phase." Brown, at 542. The only inference to be drawn from this is that sympathy grounded in the evidence is permissible. Other courts have concluded as much. See State v. Price, 326 N.C. 56 , 388 S.E.2d 84, 102 (1990) (according to Brown, a defendant's Eighth Amendment rights are jeopardized only when the jury is urged to ignore sympathy supported by facts in the record). 7
The majority's reliance on Saffle v. Parks, supra, is misplaced. Parks dealt with a procedural issue of federal *403 habeas corpus law. The Court did not reach the merits of the antisympathy instruction and even if it had, the instruction is significantly different from the one here. The instruction in Parks is analogous to the one in Brown. Those instructions contain qualifying language that identifies the excluded sympathy as that which is extraneous to the evidence, and, therefore, arbitrary. The instruction here excludes all sympathy. There is no line drawn between sympathy rooted in the evidence and sympathy not rooted in the evidence. That is the difficulty with the antisympathy instruction used in this case and why its use in a capital sentencing proceeding is erroneous.
Parks, viewed from any perspective, does not apply to this case. Yet, the majority opts to effectively overrule binding Washington precedent and follow instead dicta in a nonbinding federal Supreme Court case dealing with federal habeas corpus doctrine.
The majority questions the rationale of State v. Quinlivan, 81 Wn.2d 124 , 499 P.2d 1268 , 72 A.L.R.3d 835 (1972), which is directly on point. In Quinlivan , the defendant was convicted of first degree murder, second degree murder, and first degree kidnapping. The jury imposed the death penalty for the first degree murder conviction. The defendant claimed that the jury instruction cautioning the jury not to be moved by sympathy was erroneous. The court held the trial court erred in not instructing the jury that sympathy was a proper consideration in determining the penalty. Quinlivan, 81 Wn.2d at 129 . The court found that the antisympathy instruction conflicted with the instruction telling the jury to consider evidence bearing on the defendant's background, rearing, environment and family history. Quinlivan , at 130. The court was concerned that the jury could have concluded that sympathy was to play no part in its penalty decision. The court then said, "Contrary to this implication in the instructions, sympathy is an appropriate factor in the jury’s consideration of the penalty issue." Quinlivan , at 130.
*404 The majority states that this reasoning is no longer valid because Quinliuan was decided under the prior death penalty statute which the court declared unconstitutional in State v. Baker, 81 Wn.2d 281 , 501 P.2d 284 (1972), as a result of the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238 , 33 L. Ed. 2d 346 , 92 S. Ct. 2726 (1972). The statute was unconstitutional because it gave juries untrammeled discretion. The United States Supreme Court ruled that the discretion of juries must be channeled and guided by the imposition of standards to prevent the arbitrary infliction of the death penalty. Thus, the majority concludes that sympathy for the defendant rooted in the mitigating evidence presented is inconsistent with the jury's guided discretion.
However, the United States Supreme Court has never held that the jury's discretion in determining whether to impose the death penalty is to be eviscerated. On the contrary, in McCleskey v. Kemp, 481 U.S. 279 , 95 L. Ed. 2d 262 , 107 S. Ct. 1756 (1987), the Court noted that jury discretion in this matter still exists. The Court stated:
In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.
McCleskey, 481 U.S. at 304 . The Court went on:
Any exclusion of the "compassionate or mitigating factors stemming from the diverse frailties of humankind" that are relevant to the sentencer's decision would fail to treat all persons as "uniquely individual human beings."
McCleskey , at 304 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 , 49 L. Ed. 2d 944 , 96 S. Ct. 2978 (1976)). Therefore, "a capital punishment system that did not allow for discretionary acts of leniency 'would be totally alien to our notions of criminal justice.'" McCleskey , at 312 (quoting Gregg v. Georgia, 428 U.S. 153 , 199 n.50, 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976)). The Court concluded that with respect to the jury's decision not to impose the death penalty, the State may not channel the sentencer's discretion. *405 McCleskey , at 306. See also Eddings v. Oklahoma, 455 U.S. 104, 114-15 , 71 L. Ed. 2d 1 , 102 S. Ct. 869 (1982) (sentencer determines the weight to be given relevant mitigating evidence). 8
The majority is concerned with meaningful appellate review. It says that if emotion plays a part in the sentencing decision, this court's review is affected. To state the obvious, this court only reviews a jury's decision to impose the death penalty. RCW 10.95.100. There is no review of a jury's decision not to impose the death penalty. See McCleskey, at 311 ("[Discretionary exercises of leniency [by the jury] are final and unreviewable"). Thus, there is no need to channel the jury's discretion in terms of sentencing the capital defendant to life imprisonment. The Supreme Court has said repeatedly that the jury's decision to impose the death penalty must be based on reason, not caprice and emotion. See, e.g., Booth v. Maryland, 482 U.S. 496 , 96 L. Ed. 2d 440 , 107 S. Ct. 2529 (1987); McCleskey v. Kemp, supra; Caldwell v. Mississippi, 472 U.S. 320, 329 , 86 L. Ed. 2d 231 , 105 S. Ct. 2633 (1985); Pulley v. Harris, 465 U.S. 37, 53 , 79 L. Ed. 2d 29 , 104 S. Ct. 871 (1984); Eddings v. Oklahoma, supra; Godfrey v. Georgia, 446 U.S. 420, 433 , 64 L. Ed. 2d 398 , 100 S. Ct. 1759 (1980); Gardner v. Florida, 430 U.S. 349, 358 , 51 L. Ed. 2d 393 , 97 S. Ct. 1197 (1977).
However, there are reasons grounded in due process why there should be more leeway given to the jury's decision not to impose the death penalty. Judicial review of the death sentence will always be "meaningful" because it necessarily *406 means that the jury did not have enough sympathy for the defendant to opt for mercy. Emotion generated by the mitigating evidence is discounted by the mere fact that a death sentence was returned.
The majority notes that sympathetic considerations could work against the defendant. Majority, at 388. This same argument was made in Brown. Brown, at 543. This argument, however, should be rejected. Sympathy is defined as compassion. An unfavorable emotional response to the defendant would not be sympathy, but rather prejudice. Prejudice is improper. Sympathy by its definition can only be exercised in the defendant's favor.
The State cannot shackle the jury's discretion in its evaluation of mitigating evidence by prohibiting the jury from considering sympathy for the defendant based on some aspect of the defendant's background or character. Consequently, the rationale of Quinlivan is still sound because jury discretion in determining not to impose the death penalty is still recognized by the Supreme Court.
Quinlivan has been cited by two subsequent death penalty decisions of this court, lending credence to its rationale even though a different death penalty statute is in force.
In State v. Rice, 110 Wn.2d 577 , 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 , 105 L. Ed. 2d 707 , 109 S. Ct. 3200 (1989), the defendant challenged the introductory instruction given in the penalty phase. The instruction was a modification of WPIC 1.02 which omitted the last four sentences of the pattern instruction. The last sentence of WPIC 1.02 is, "Throughout your deliberations you will permit neither sympathy nor prejudice to influence you." The defendant contended that the omission of this sentence allowed the jury to consider sympathy for the victims in its deliberations. This court stated that it was proper for the trial court to omit this part of the instruction. Including it would have been reversible error because it would have improperly precluded the jury from considering sympathy for the defendant, citing Quinlivan. Rice, 110 Wn.2d at 612 .
*407 The majority suggests this is dicta. Dictum is a statement not essential to the determination of the issue of the case. Black’s Law Dictionary 541 (4th ed. 1951). Far from being dicta, this portion of the analysis in Rice is necessary to the holding because it directly answers the defendant's contention that the antisympathy instruction should have been given. The court went on to narrow the issue to whether an instruction directing the jury not to be influenced by sympathy for the victims was required. Nevertheless, the court could not have reached that issue without first determining that it was not error to omit the pattern antisympathy instruction. Therefore, the reason given by the court, that otherwise the jury would be precluded from considering sympathy for the defendant, is necessary to the holding.
In State v. Mak, 105 Wn.2d 692 , 718 P.2d 407 , cert. denied, 479 U.S. 995 (1986), the defendant assigned error to the trial court's failure to give a proposed instruction on sympathy. The jury was not instructed to ignore sympathy. The court found no prejudice from the lack of an instruction on sympathy because the jury was instructed to consider mercy. Since mercy and sympathy are both defined in terms of compassion, the jury was adequately apprised of the proper role of emotional factors in a capital sentencing proceeding. Mak, 105 Wn.2d at 754 . Thus, this court has recognized that sympathy for the defendant is appropriate in the penalty phase of a capital case.
By not following Quinlivan, Rice and Mak , the majority effectively overrules clear Washington precedent on the appropriateness of sympathy for the defendant in a capital sentencing proceeding. The instruction on sympathy found improper in Rice is identical to the instruction at issue in this case. It was found erroneous in a case that is binding on this court today. Thus, the instruction used in this case was error.
The fundamental issue presented by an antisympathy instruction is whether the jury is likely to become confused by an instruction telling it to disregard sympathy and then being instructed to consider all mitigating circumstances in *408 fairness and mercy. If there is a substantial possibility that the jury would interpret the sympathy instruction as disallowing it from taking into account mitigating circumstances related to the background or character of the defendant, then the two instructions conflict. The critical question is whether this interpretation is one a reasonable jury could have made. Mills v. Maryland, 486 U.S. 367, 375-76 , 100 L. Ed. 2d 384 , 108 S. Ct. 1860 (1988). See also Francis v. Franklin, 471 U.S. 307, 315-16 , 85 L. Ed. 2d 344 , 105 S. Ct. 1965 (1985) ("The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning.").
The language of the challenged instruction creates a substantial possibility that reasonable jurors could believe they were not permitted to exercise mercy or compassion when sentencing the petitioner, even if such feelings were rooted in the evidence. Sympathy is likely to be perceived by a reasonable juror as synonymous with compassion and mercy. Webster's defines both sympathy and mercy as compassion. Webster's Third New International Dictionary 1413, 2317 (1976). On the one hand they were told not to have sympathy, that is, compassion. On the other hand, they were told to consider mercy, that is, compassion. The conflict is plain and confusion probable.
In Legare v. State, 250 Ga. 875, 878 , 302 S.E.2d 351 (1983), the Georgia Supreme Court disapproved an anti-sympathy instruction because it might confuse the jury as to its option to recommend mercy. In that case, the jury was fully instructed on mitigating circumstances. The court concluded:
Thus this jury was charged to consider in mitigation all circumstances which in fairness or mercy offer a basis for not imposing the death penalty, a charge the substance of which is constitutionally required. But the jury was also charged not to base their verdict on sympathy for the defendant. Since the evidence in mitigation might well evoke sympathy, we find these charges in irreconcilable conflict. Because the charge *409 complained of might well confuse the jury and limit their constitutionally required consideration of evidence in mitigation, we hereby disapprove it.
250 Ga. at 878 .
The danger that a jury would feel inhibited in its ability to consider mitigating evidence because of the bar on considering sympathy was recognized by Justice O'Connor in her concurrence in California v. Brown, supra. The majority invokes her concurrence to support its position but fails to mention that she acknowledged the possibility that juries would misinterpret an antisympathy instruction. She stated:
As [the] dissent illustrates, however, one difficulty with attempts to remove emotion from capital sentencing through instructions such as those at issue in this case is that juries may be misled into believing that mitigating evidence about a defendant's background or character also must be ignored.
Brown, at 545-46.
Thus, Justice O'Connor implicitly acknowledges that the focused purpose of mitigating evidence is to evoke a feeling of sympathy or compassion for the defendant that might persuade the jury to spare his life. See People v. Johnson, 47 Cal. 3d 1194 , 767 P.2d 1047 , 255 Cal. Rptr. 569, 597 (1989) (jmy instructed permissible to consider sympathy for the defendant); People v. Robertson, 48 Cal. 3d 18 , 767 P.2d 1109 , 255 Cal. Rptr. 631, 650 (1989) (under Eddings and Lockett, defendant is constitutionally entitled to have sentencer consider any sympathy factor raised by the evidence). 9
In State v. Ramseur, 106 N.J. 123 , 524 A.2d 188 (1987), the New Jersey court found an instruction cautioning the jury to decide the case without any sympathy did not create confusion for the jury with respect to the charge to consider any mitigating factor, any aspect of the defendant's character or record, and any circumstances of the crime that *410 would justify a sentence less than death. But the court recognized that the general admonition against sympathy could conflict with the permissible role of sympathy specifically engendered by any mitigating factor. The court cautioned trial courts to be aware of that possibility and frame their instructions to avoid it. Ramseur, 524 A.2d at 299 .
It is generally acknowledged that the most effective strategy for defense counsel at the penalty phase is to play on the jurors' sympathy and compassion. Welsh S. White, in his book, The Death Penalty in the Eighties: An Examination of the Modern System of Capital Punishment, characterizes the best defense attorneys as the ones who have successfully appealed to the emotions of the jury. He points to Clarence Darrow's moving plea for the lives of Leopold and Loeb as a famous example of a superb argument that effectively aroused the sentencer's sympathy. W. White, The Death Penalty in the Eighties: An Examination of the Modern System of Capital Punishment 82-83 (1987). White argues that defense argument which pertains to the evidence presented should not be excluded because it is emotional. He explains that the Supreme Court's decision in Lockett v. Ohio, 438 U.S. 586 , 57 L. Ed. 2d 973 , 98 S. Ct. 2954 (1978), which requires the sentencer to make an individualized sentencing determination based on the defendant's personal characteristics as well as the circumstances of the crime, mandates the kind of eloquence that will arouse the sentencer's feelings. W. White, at 85-86. White concludes:
Under Lockett , the sentencer is required to act for the community in deciding whether the defendant should be executed or spared. To do so, the sentencer must rely on more than logic, and in seeking to persuade the sentencer to exercise mercy, defense counsel should be permitted to appeal to the sentencer's feelings as well as its cognitive faculties.
. . . Under the circumstances, emotional appeals are appropriate because the judgment to be made—whether the defendant will live or die—is one that should not be predicated on logic alone.
W. White, at 86-87.
*411 Where the majority goes wrong is in invoking the phrase "reasoned moral response" which first appeared in Justice O'Connor's concurrence in California v. Brown, supra. O'Connor stated:
In my view, evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. This emphasis on culpability in sentencing decisions has long been reflected in Anglo-American jurisprudence. . . . Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant. Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime rather than mere sympathy or emotion.
Brown, at 545.
Subsequently, courts at all levels have cited the phrase "reasoned moral response" as though it settles everything. Indeed, Justice Brennan in his dissenting opinion in Saffle v. Parks, supra, refers to it rather derisively as a talismanic phrase because no one has defined it. It is bandied about under the assumption that everyone must know exactly what is meant by a "reasoned moral response." The majority falls into this same trap.
Unfortunately, an inquiry into its meaning is not a simple matter. The sheer scope of the subject of morality and the number and variety of different theories regarding its nature is reason alone why the majority's reliance on the phrase is misplaced. What is moral is a question that has plagued philosophers for centuries. Thus, it is no small task defining "reasoned moral response" and a complete inquiry into the nature of morality is an endeavor beyond the scope of this dissent.
The one court that has described a "reasoned moral response" recognizes the sympathetic component. In People v. Clark, _ Cal. 3d _, 789 P.2d 127 , 268 Cal. Rptr. 399, 431 (1990), the court stated:
*412 The jury must make a moral assessment of those facts as they relate to whether death is appropriate for the individual defendant, and must be free to reject death on the basis of any constitutionally relevant evidence. The jurors must, therefore, weigh the aggravating and mitigating factors, assigning whatever moral or sympathetic value each juror deems appropriate to each, and upon completion of the weighing process must decide if death is the appropriate penalty.
The view that morality is not devoid of emotion finds support in the history of philosophy.
David Hume, an eighteenth century British philosopher, was a precursor to the utilitarian philosophical movement. In A Treatise of Human Nature and Enquiries Concerning Human Understanding and Concerning the Principles of Morals, he expounded a moral theory emphasizing the emotional aspect of human nature. According to Hume, the basic assumptions on which we act are not conclusions drawn by the understanding from rational argument. Reason does play a part, but an individual's reflections and reasoning presuppose fundamental beliefs which are not themselves the. product of reasoning. Moral distinctions are derived ultimately from feeling. Hume called this "moral sentiment." Thus, he minimized the role of reason in morals because reason alone is not capable of being the sole immediate cause of our actions. Since reason alone can never produce an action, it is subordinate to the passions. By passions, Hume means all emotions and affects.
For Hume, sympathy is an important cause of passions. By sympathy he means the natural inclination to share the feelings of another. It is a sympathy with humanity. Sympathy is the foundation of his moral theory because it is only through the operation of sympathy that the moral sentiment approves of the virtues. Through sympathy, we are able to see what is present in all of us. Therefore, society reaches agreement in its moral distinctions and sentiments because of the principle of sympathy.
A moral judgment is the result of the moral sentiment and reason acting together. Hume reasoned:
*413 [RJeason and sentiment concur in almost all moral determinations and conclusions. The final sentence, it is probable, which pronounces characters and actions amiable or odious, praiseworthy or blameable; that which stamps on them the mark of honour or infamy, approbation or censure; that which renders morality an active principle and constitutes virtue our happiness, and vice our misery: it is probable, I say, that this final sentence depends on some internal sense or feeling, which nature has made universal in the whole species. For what else can have an influence of this nature? But in order to pave the way for such a sentiment, and give a proper discernment of its object, it is often necessary, we find, that much reasoning should precede, that nice distinctions be made, just conclusions drawn, distant comparisons formed, complicated relations examined, and general facts fixed and ascertained. . . .
D. Hume, Enquiries Concerning Human Understanding and Concerning the Principles of Morals 172-73 (3d ed. 1975).
Reason cannot be the only ingredient in a moral judgment. This is best illustrated by the moral judgment society has made with respect to killing. The act is the same in every situation; a person is killed. If a moral determination were derived solely from reason, every killing would give rise to the same moral determination because the fact is the same in every case. However, society views killing differently depending upon motives and intentions. A coldblooded murder arouses a different feeling in people than a homicide committed in self-defense. Consequently, a different moral judgment applies to each situation and the perpetrators held to different standards of moral culpability. Thus, moral determinations and distinctions are essentially founded on feeling. As Hume put it:
But after every circumstance, every relation is known, the understanding has no further room to operate, nor any object on which it could employ itself. The approbation or blame which then ensues, cannot be the work of the judgement, but oil the heart; and is not a speculative proposition or affirmation, but an active feeling or sentiment. . . .
D. Hume, app. I, at 290. "Morality, therefore, is more properly felt, than judg'd of". D. Hume, A Treatise of Human Nature 470 (1967).
*414 Adam Smith was a close friend of Hume and expanded on his theory of morality. Although better known today for his economic teachings, Smith wrote a treatise called The Theory of Moral Sentiments, in which he also traced the origins of moral sentiments to sympathy. Whereas Hume's sympathy was a general societal sympathy, Smith stresses sympathy with the individual persons involved. Smith explains sympathy in terms of the imagination.
As we have no immediate experience of what other men feel, we can form no idea of the manner in which they are affected, but by conceiving what we ourselves should feel in the like situation. . . .
A. Smith, The Theory of Moral Sentiments 9 (1976). Through our imagination, we place ourselves in another's position and are able to share the other's feelings. Thus, Smith's focus is on the situation that causes the passion, not the passion itself. Moral approbation and disapprobation are the result of the operation of sympathy.
To approve of the passions of another, therefore, as suitable to their objects, is the same thing as to observe that we entirely sympathize with them; and not to approve of them as such, is the same thing as to observe that we do not entirely sympathize with them.
A. Smith, at 16.
Smith posits the impartial spectator to account for an objective standard of good and evil. Impartial means to be not involved in the situation to be morally judged.
The compassion of the spectator must arise altogether from the consideration of what he himself would feel if he was reduced to the same unhappy situation, and, what perhaps is impossible, was at the same time able to regard it with his present reason and judgment.
A. Smith, at 12.
Thus, Smith also believed that moral judgments are founded on sympathy and emotion.
Out of the teachings of Hume and Smith rose an entire school of thought—the emotive theory of morality. The emotive theory regards moral judgments as the expressions of our emotions or feelings. The critical thinking or reason *415 of a perfect moral thinker is the manifestation of full representation and identification. R. Hare, Moral Thinking 98 (1981). Thus, the moral thinker must attempt to identify with others through intuitive thinking; in other words, sympathy. Critical thinking validates the intuitions. R. Hare, at 99. To put it simply, one must put oneself in the other's shoes when making a moral judgment.
Compassion is intimately connected with morality. B. Gert, Morality: A New Justification of the Moral Rules 228-29, 232 (1988). A perfect understanding without compassion will not lead one to follow moral ideals. B. Gert, at 172. Although being morally good is not primarily a matter of feelings, feelings are morally important inasmuch as they lead to morally good actions. B. Gert, at 173.
It is arguable, then, that a "reasoned moral response" entails an emotional reaction as well as a rational determination. For a jury to make a truly moral judgment, it must do so from the standpoint of sympathy.
There are, as well, philosophers who believe that morality is purely rational. The role of emotion and feeling in morality is subject to a great deal of debate and remains an open question. Thus, I believe the majority's reliance on the vague phrase "reasoned moral response" is the cause of its misinterpretation of the proper role of sympathy for the defendant arising out of the mitigating circumstances presented in the sentencing phase of a capital case.
For these reasons the majority goes too far in excluding all sympathy from the penalty phase. Sympathy for the defendant evoked by some aspect of his background or character is, by our statutory scheme, frequently a capital defendant's only opportunity to present to the jury reasons why it should not impose the death penalty. It should be clear to the jury that they are entitled to decide not to impose the death penalty on this ground. The instructions given in this case are in irreconcilable conflict because the jury was told to disregard sympathy yet consider mercy. Since both sympathy and mercy are defined in terms of compassion, the jury was not adequately informed of its *416 responsibility to consider the mitigating circumstances. The substantial possibility of confusion is too great and we should not allow this death sentence to stand.
Dolliver, J., concurs with Utter, J.
Reconsideration denied February 22, 1991.
The Tenth Circuit in Parks v. Brown, 860 F.2d 1545, 1553 (10th Cir. 1988), cert. granted, 490 U.S. 1034 , 104 L. Ed. 2d 402 , 109 S. Ct. 1930 (1989), also reached this conclusion. The court stated:
[Brown] implicitly suggested that sympathy that is based on the evidence is a valid consideration in sentencing that cannot constitutionally be precluded. The court also mentioned in a footnote that the State conceded that the jury may consider sympathy for the defendant that is related to the evidence. 860 F.2d at 1553 n.10.
This decision was reversed by the Supreme Court on habeas corpus grounds in Saffle v. Parks, _ U.S. _, 108 L. Ed. 2d 415 , 110 S. Ct. 1257 (1990).
Indeed, it is likely impossible to guide the discretion of juries. William Geimer, professor of law at Washington and Lee University, conducted an empirical study of jury decisions in 10 Florida capital cases. In five, the jury recommended a sentence of death and in five, the jury recommended a sentence of life imprisonment without possibility of parole. He interviewed many of the jurors sitting on these cases and concluded that the imposition of the death penalty is random and that all the so-called standards to channel discretion have contributed nothing to the actual decisionmaking process. He refers to the situation as the "illusion of guided discretion." Geimer & Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. Law 1 (1988).
The drafters of the California pattern antisympathy instruction cautioned that the instruction should not be used in the penalty phase of a capital trial. People v. Easley, 34 Cal. 3d 858 , 671 P.2d 813 , 196 Cal. Rptr. 309, 320 (1983).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587476. Public record. Not legal advice.