Brief for Respondent — Aikens v. California

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sige: FILED

LE cOPY IN THE SEP 24 197)

Supreme Court of the United <Startegseves. cca

October Term 1971

No. 68-5027

EARNEST JAMES AIKENS, Jr.,

Petitioner,

| vs.

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of California

RESPONDENT'S BRIEF

EVELLE J. YOUNGER,

Attorney General of the

State of California,

WILLIAM E. JAmgs,

Assistant Attorney General of

the State of California,

RONALD M. GEorGE,

Deputy Attorney General of

the State of California,

500 State Building,

217 West First Street,

Los Angeles, Calif. 90012,

(213) 620-2093,

Attorneys for Respondent.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

and Assault With Intent to Commit

Rape ‘

dence

Defense Evidence Related to Peti-

tioner’s Background

Findings of the Trial Court in Fixing

the Punishment at Death

ii.

Petitioner's Sentence’ of Death ‘and Pending

‘Execution, Resulting From His Conviction of

First Degree Murder, Do Not Comprise Cruel.

and Unusual Punishment

Execution Is a Form of Punishment Ex-

pressly Recognized by Provisions of the

Constitution and Upheld as Constitu- .

Fee te ee Tee ene

Capital Punishment Is Widely Accepted

end Used in American Society and Com-

ports With Contemporary “Standards of

Decency”

In View of Petitioner’s Inability to Make

a Clear Showing That the Death Pen-

alty Serves No Legitimate Function, the

Federal Constitution Leaves the People

ef the State of California Free to De-

‘~mine Through Their Elected Repre-

sentatives That the Protection of Society

Under Present Conditions Requires

Death as a Form of Punishment for

The Death Penalty Is Not Arbitrarily or

Discriminatorily Imposed Upon Racial

Minorities, the Poor, or the Uneducated

in California; Prisoners Under Sentence

of Death Constitute 2 Representative

Cross-Section of California’s Criminal

Death Is Not a Cruel and Unusual Pun-

ishment for Petitioner, the Unrepentant

1965-1971

oz! TABLE INDEX

Table ‘A’ Public Opinion Polls ‘on the Death Pen-

alty: California—United States ..

Table B December 1970 Illinois Referendum on

Whether to Abolish the Death Penalty -....... vas

Table C. See -at Srwenes Rockin Te Felten

Under Death Sentence

Table D Los Angeles Police Department Study

of the Deterrent Effect of the Death Penalty,

February, 1971

Table E Homicides in California Prisons, 1965-

1971, Committed by Adult Felons

Table F Race and the Imposition of the Death

Penalty in California

Table G Race and the Commutation of Death

Sentences in California 1959-1971

Table H Defendants Under Sentence of Death

Reviewed by the California Supreme Court,

1965-1971 App. p.

108

TABLE OF AUTHORITIES CITED

Aikens v. California, cert, granted, ...... U.S. sore

91 S. Ct. 2280......... cet: Tigao:

Coolidge v. New Hampshire, \..... U.S. ......, 91

S. Ct. 2022 : | |

Francis v. Resweber, 329. U.S. 459 ..................46,

In re Anderson, 69 Cal. 2d 613, 447 P.2d 117.

(1968) | dias igs

In re Cathey, 55 Cal. 2d 679, 361 P.2d 426.

(1961) wroperececeer,

cake 16066 39, 45,

In re Morse, 70 Cal. 2d 702, 452 P.2d 601.

(1969)

In re Seiterle, 61 Cal. 2d 61, 394 P.2d 556 .

(1964), cert. denied, 379 US. EES Ge

In re Seiterle, 71 Cal. 2d 698, 456 P.2d 129

(1969) .........

In re Terry, 4 Cal. 3d 911, 484 P.2d 1375

(1971) os .

Jackman v. Rosenbaum Co., 260 U.S. 22 ie be tt

Maxwell v. Bishop, 398 U.S. 262

Maxwell v. Bishop, 398 F.2d 138° (8th Cir.

1968), vac’d, 398 U.S. 262 77,

McGautha v. California, 402 U.S. 183 ~................

38, 42, 52, 63, 71, 75, 112,

McGowan v. Maryland, 366 U.S. 420

People v. Aikens, 70 Cal. 2d 369, 450 P.2d a

(1969)

People v. Chessman, 52 Cal. 2d 467, 341 P.2d

679 (1959), cert. denied, 361 U.S. 925 -.........

People v. Daniels, 71 Cal. 2d 1119, 459 P.2d 225

(1969) . 74,

People v. Daugherty, 40 Cal. 2d 876, 256 P.2d

911 (1953), cert. denied, 346 U.S. 827

People v. Friend, 47 Cal, 2d 749, 306 P.2d 463

People v. Gilbert, 63 Cal. 2d 690, 408 P.2d 365

_ (1965), vac’d, 388 U.S. 263 96,

People v. Goodridge, 70 Cal. 2d 824, 452 P.2d

637 (1969) 63,

People v. Hall, 199 Cal. 451, 249 P. 859 (1926)

People v. Jensen, 43 Cal. 2d 572, 275 P.2d 25

(1954) 96,

People v. Love, 56 Cal. 2d 720, 336 P.2d 33

62, 80, 85, 91, 92, 93, 101,

People v. Morse, 60 Cal. 2d 631, 388 P.2d 33

(1964) ae 66,

People v. Morse, 70 Cal. 2d 711, 452 P.2d 607

(1969), cert. denied, 397 U.S. 944

People v. Mutch, 4 Cal. 3d 389, 482 P.2d 633

(1971)

People v. Peete, 28 Cal. 2d 306, 169 P.2d 924

(1946), cert. denied, 329 U.S. 790

People v. Purvis, 52 Cal. 2d 871, 346 P.2d 22

(1959)

People v. Robinson, 61 Cal. 2d 373, 392 P.2d

970 (1964)

People v. Robles, 2 Cal. 3d 205, 466 P.2d 710

People. v. St.: Martin, 1 Cal. 3d 524,»463° P.2d

390 (1970) 6

People v. Seiterle; 56 Cal. 2d 320, 363: P.2d 913:) 4%

(1961) | 68

People v. Seiterle, 59 Cal. 2d 703, 381 P.2d 947

(1963), cert. denied, 375 U.S. 887 ............... 68

People v. Seiterle, 65 Cal. 2d 333, 420 P.2d 217:

(1966), cert. denied, 387 U.S. 912 ......e-soo--.--. 68

People v. Stanworth, 71 Cal. 2d 820, 457 P.2d ae

889 (1969) ~ 67

People v. Terry, 57 Cal. 2d 538, 370 P.2d 985°

(1962), cert. denied, 375 U.S. 960 .................. 68

People v. Terry, 61 Cal. 2d 137, 390 P.2d 381...

(1964), cert. denied, 379 U.S. 866 . 68

People v. Terry, 70 Cal. 2d 410, 454 P.2d 36

(1969), cert. denied, 399 U.S. 811 .................. 68

People v. Thornton, L.A. Super. Ct. No. 328445

People v. Vaughn, 71 Cal. 2d 406, 455 P.2d 122

(1969) ‘hs

Powell v. Texas, 392 U.S. 514

49, 72, 75, 93, 95, 102

Robinson v. California, 370 U:S. 660 .............. 49, 51

Robinson v. United States, 324 U.S. 282 0.000200... 92

Rudolph v. Alabama, 375 U.S. 889 76

Seiterle v. Superior Court, 57 Cal. 2d 397, 369 P.

2d 697 (1962) 68

Stein v. New York, 346 U.S. 156 113

Spencer v. Texas, 385 U.S. 554 . wu. 118

Trop v. Dulles, 356 U.S. 86 ......35, 40, 47, 48, 51

52, 54, 63, 70, 76

Page

United States ex rel Townsend v. Twomey, 322 F. .°

Supp. 158 (N.D. Ill. 1971) . &

Walz v. Tax Commission, 397 U.S. 664 _............... Tf

Weems v. United States, 217 U.S. 349 ......41, 45, 46

: 48, 51, 71

Wilkerson v. Utah, 99 U.S. 130 ........................ 44, 50

Williams v. New York, 337 U.S. 241 ..66, 75, 76, 113

Williams v. Ok..2oma, 358 U.S. 576 48

Winston v ~ ited States, 172 U.S. 303 ........-....... 75

Witherspoon v. Illinois, 391 U.S. 510 ..............55, 66

Statutes

Act of April 30, 1790, ch. 9, §§ 1, 3, 8, 14, 33,

1 Stat. 112 43

Act of April 2, 1792, ch. 16, § 19, 1 Stat. 246... 43

Cal. Code Civ. Proc. § 170.6

Cal. Mil. & Vet. Code § 1670 .

Cal. Mil. & Vet. Code § 1672(a)

Cal. Pen. Code:

eg Page

; § 671 obey" 90

§§ 1026-27 ° + 103

§ 1193 ..... 3 4, 69

§ 1227 69

§ 1239 tad OOF

~ § 1239(b) 4, 113

§§ 1368-70 -103

§ 3046 95, 99

§ 3604 4

§§ 3700-06 -103

§ 4500 |

§§ 4800-06 103

“§ 4801 113

§ 4812 113

§ 12310 62, -73

18 U.S.C. § 1751 62

49 U.S.C. § 1472(i) 62

Constitutions :

€al. Const. Art. I, § 6 44

Cal. Const. Art. V, § 8 95

US. Const. Art. I, § 9° 39

U.S. Const. Art. II, § 2 38

U.S. Const. Art. III, § 3 ae

U.S. Const. Amend. V 34, 39

US. Const. Amend. VIII ....34, 40, 41, 42, 43, 44, 45

U.S. Const. Amend. X

46, 47, 48, 49, 50, 65, 70, 102, 117

US. Const. Amend. XIV. ............

40, 46; 49, 70, 118

American Bar Association, Section of Criminal >

Law Proceedings—1959 ................. panseni cee

Amsterdam, Comment, Raciiin id Capital: Poable

ment: ae of McGautha v. California, 1.

Black L. J. 185 (1971) .

2 Basic a of St. Thomas Aquinas 712, 843

_(Pegis ed. 1945)

Bedau, Death Sentences in New Jersey 1907-1960,

‘19 Rutgers L. Rev. 1 (1964)

106

Bedau, The Death Penalty in America 6, 20,

123, 130, 154 (rev. ed. 1967) 39; 58, 80,

Black’s Law Dictionary 1466 (4th ed. 1951)

4 Blackstone, Commentaries 18 (Tucker.ed. 1803) ©)

California Assembly, Report of the Select Com- ©

mittee on the Administration of Justice, Parole «

. Board Reform i in California 13 (1970) 9

California Bureau of Criminal Statistics, card

and Delinquency in California—1969 (1970) ..

California Bureau of Criminal Statistics, Death 3

California Department of ‘Corrections, ey :

. Prisoners—1970 (197..) ,

California Department of Corrections, California

, Prisoners—1968 (1969) mer” Ml

California Department of Corrections, Executions

in California 1943 Through 1963 (1965) .:..79,

California Legislature, Final Calendar of Legisla-

96, 109, 111, 112, 114

’ tive Business: Regular Session 1970, Assembly © -

Final History (Bill 20) 52

Page

California Legislature, Legislative ‘Index oe neh

17; 1971) 2.2222:

California’ Legislature, Senate hcp isl bees

(September 9; 1971) ° zit

California Senate, Hearing Report and Testimony |

fi."

262

on Senate BillNo. 1, 1960 Second Extraordi« °

nary Session, Which Proposed to Abolish the -

Death Penalty in California and to Substitute...

Life Imprisonment Without Possibility of Parole:

133-35, 149-54, 156, 161 (March 9, 1960) ..92,

Coakley, Capital Punishment, 1 Am. Crim. L. Q.

27 (May, 1963) 85, 110,.

Erskine, The Polls: Capital Punishment, 34 Pub.

Op. Q. 290 (1970) 56,

Federal Bureau of Investigation, Uniform Crime

Reports—1970,. 7-8, 118, 131 (August 31,

1971) 78, 106, 108,

Florida Special Commission for the Study of Abo-

lition of Death Penalty in Capital Cases, Re-

port 31 (1965) 58,

Goldberg & Dershowitz, Declaring the Death Pen-

alty Unconstitutional, 83 Harv. L. Rev. 1773

(1970)

Granucci, “Nor Cruel and Uiuseal Punishments

Inflicted:” The Original Meaning, 57 Calif. L.

Rev. 839 (1969)

Holy Bible (King James version)

Illinois Secretary of State, Constitution of the State

of Illinois & United States 13 (1971) ...........

Laurence, A History of recta Punishment 1

(1932) .

117

xii.

Legislative Drafting Research Fund, Columbia

University, Index Digest of State Constitutions

343 (2d ed. 1959) . as

Legislative Retesente Service, Libeary of Conguass,

Constitution of the United States of America 28

(rev. ann. ed. 1964)

National Commission on Reform of Federal Crim-

inal Laws, 2 Working Papers 1359 (n. 47)

(1970)

Hearings Before the Subcommittee on Criminal

Laws and Procedures of the Senate Committee

on the Judiciary on S. 1760, To Abolish the

Death Penalty, 90th Cong, 2d Sess. 212

An Appraisal of Cruel and Unusual Punish.

ment, 36 N.Y.U. L. Rev. 846 (1961)

Packer, Comment, Making the Punishment Fit the

Crime, 77 Harv. L. Rev. 1071 (1964) ....65, 66,

Post—Conviction Remedies in California Death

Penalty Cases, 11 Stan. L. Rev. 94 (1958) ..

Powers, Crime and Punishment in Early Massa-

chusetts 308 (1966) ..

Report of New Jersey Commission to Study Capi-

tal Punishment 8, 9-10 (October, 1964) ..94, 106

110, 112

Royal Commission on Capital Punishment 1949-

1953 Report, 24, 274, 335, 340 (1953)

St. Augustine, City of God 27 [Book I, ch. 21]

(Mod. Library ed. 1950)

Penalty, 284 Annals of the Am. Acad. of Pol.

and Soc. Sci. 54 (Nov. 1952) ......

State of California, Joint Legislative Committee

for Revision of the Penal Code, The Criminal -

Code §315(a)(1) (Staff Digest) 18 (1971) ..

United Nations, Department of Economic and So-

cial Affairs, Capital Punishment 9 (1968) ..

US. Bureau of Prisons, National Prisoner Statis-

tics Bulletin: Capital Punishment 1930-1968

(August, 1969) 7 (Table 1), 11 (Table 3), 12

(Table 4), 30 (Table 15) .......44, 62, 64,

NRA PRE 74, 79,

Van Den Haag, On Deterrence and the Death

Penalty, 60 J. Crim. L. C. & P. S. 141 (June,

1969) 77, 86, 101, 110,

Miscellaneous

Allen, Capital Punishment: A Matter of Human

and Divine Justice, The Police Chief, vol. 27

(March, 1960) 1 ........... 54,

Allen, Capital Punishment: Your Protection and

Mine, the Police Chief, Vol. 27 (June, 1960)

California State Prison at San Quentin, Capital

Punishment in California 3 (August 1, 1970) ..

California State Prison at San Quentin, Execution

Data (September 1, 1971) ... 67,

104

Christianity Today, vol. IV, No. 1 (October 12, |

Rie fp Fated eee tee er iiatete Robes yt tor. ad

District Attorneys’ and County Counsels’ Associa-

tion of California, Official Position on Capital

Punishment 1 (September 2, 1971) ..................

Field Research Corporation, The California Poll,

Release No. 635 (May 22, 1969)

Field Research Corporation, The California Poll,

Release No. 726 (September 14, 1971)

Gallup International Inc., Gallup Opinion Index 15

(Report No. 45, March, 1969)

Los Angeles Police Department, Detective Bu-

reau, Administrative Analysis Section, A Study

by the Los Angeles Police Department on

Capital Punishment 3, 11 (February, 1971) ..

86, 87, 88,

Part I, p. 1 (Dec. 13, 1958)

Part ip. 8 (Feb. 14, 1959)

Ayo 26, 1967)

8 (July 15, 1967)

20 (Dec. 18, 1969)

. 1 (Aug. 8, 1970)

. 3 (Jan. 31, 1971)

. 1, 3 (June 23, 1971)

15 (Aug. 12, 1971)

Ps Aro 22, 1971)

3 (Aug. 25, 1971)

1 (Sept. 14, 1971)

Part I, . 1 (Sept. 15, 1971)

New York Times, p. 31 (July 23, 1971)

Sacramento Bee (May 5, 1967)

The American Scholar, vol. 31, No. 2 (Spring

1962) 181-91

The New Leader, vol. 44 (April 3, 1961) 18

The Tidings 9 (Feb. 13, 1959)

SSS

Supreme Court of the United States

October Term 1971

No. 68-5027

EARNEST JAMES AIKENS, Jr.,

. Petitioner,

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of California

QUESTION PRESENTED

The petition for writ of certiorari was granted lim-

ited to the following question: —

“Does the imposition and carrying out of the

death penalty in this case constitute cruel and un-

usual punishment in violation of the Eighth and

Fourteenth Amendments?’ ”*

STATEMENT OF THE CASE

A. History of the Case

In an indictment returned by the Grand Jury of

Ventura County, State of California, on April 30, 1965,

petitioner was charged with the murder of Mary Wini-

_.. US. ...., 91 S. Ct. 2280.

adiliee 7

fred Eaton on April 26, 1965, a violation of California

Penal Code section 187. [R., Cl. Tr. I, p. 1.]* The

same grand jury on August 13, 1965, indicted pet}

tioner for a second violation of the same provision, the

murder of Kathleen Nell Dodd on April 4, 1962. [R,

Cl. Tr. Il, p. 1.]

In each case two attorneys were appointed to rep

resent petitioner. (R., Cl. Tr. I, pp. 4, 6; Cl. Tr. IL

p. 3.] On motion of defense counsel the court ordered

that $750 might be expended by said counsel for in

vestigation purposes, $350 for employment of a psp

chiatrist, and $750 for an electroencephalographer,

[R., Cl. Tr. I, pp. 6, 20; Cl. Tr. III, p. 19.] Petitioner's

motions for discovery of the prosecution’s evidence were

also granted. [R., Cl. Tr. Ill, p. 19; Cl. Tr. Il, p. 115]

Petitioner pleaded not guilty to each charge, and the

two cases were consolidated for trial. [R., Cl. Tr. |

pp. 21, 54; CL Tr. Il, p. 8.] Petitioner then exercised

his right under California law’ to disqualify the judg

to whom the case was initially assigned for trial. [R,

Cl. Tr. Ill, pp. 43-44.] Thereafter on three occasions

petitioner personally, both his counsel, and the pros

cuting attorney waived trial by jury. [R., Cl. Tr. I, pp.

72, 77, 96-100, 109-13; Cl. Tr. II, p. 115.]

After presentation of the evidence on the issue of

guilt and extensive arguments thereon, the court found

*References are to the record in the state

consultation with counsel, and a day's deliberation, pe-

titioner chose to abide by the advice of counsel not: to

“

8 5 g

i EFe

iit

;

Ci. Tr. Ti, p. 299.] On April 7, 1966, petitioner ‘was

sentenced to death’ on the Eaton murder and t

fife imprisonment on the Dodd murder,’ the sentences

being ordered to run concurrently. {R., Cl. Tr. I, p

300; Ci. Tr. li, pp. 134-35.] ms

Petitioner filed notice of appeal from the judgment

imposing the punishment of fife imprisonment. {R,

Cl. Tr. Il, p. 137.] Appeal to the California Supreme

Court from a judgment imposing the death penalty

automatic ‘under California law.® On February 18,

1969, the California Supreme Court, in a unanimous

opinion written by Justice Peters, affirmed the judg

ment in its entirety. People v. Aikens, 70 Cal. 2d 369

{450 P. 2d 258] (1969). On March 25, 1969, the

trial court fixed June 4, 1969, as the date for peti

tioner’s execution." iy

May 23, 1969, stayed petitioner’s execution. The pe

tition was filed on May 29, 1969, and, with petitioner's

granted on June 28, 1971.” ;

*California Penal Code section 3604 “The punish

meant of death shall be inflicted by the ac

gas.”

weeral days under 17 years ot the time Of the Dodd mutier: i

20 years at the time of the Eaton murder. (R. 4474.] -/

Cal. Pen. Code § 1239(b). Z

1Gee Cal. Pen. Code § 1193. Ke

2 US. ...., 91S. Ct. 2280.

‘pila

vey the shr-i aemantabignae atte Geena

- of Petitioner’s Guilt, te ‘

1.- ‘The Murder of Kathiéon Nell Doda eae

‘Im April: of 1962 Kathleen Nell Dodd, « 25-yearold

Caucasian woman, lived in the City of Ventura, -Cali-

fornia, with her husband, Ventura County Deputy

Sheriff Robert Dodd, and their two daughters; aged

three-and one. [R. 57-58, 61, 88, 2860, 2882.] Mrs.

Dodd was five months pregnant at that time, {R. 127.}

Mrs. Dodd had expressed concern over the‘ type of

neighborhood in which she lived. Shortly before ‘her

death; a two- to three-foot length of pipe was. thrown

through her front window while het husband was away

at work, and during the week or two preceding her

death she had observed a brown Dodge or Chevrolet

parked nightly near her residence between midnight and

5:00 a.m. She always locked her doors and before

opening them always ascertained the identity of . her

visitors even when their arrival was expected. She had

even told a neighbor that in the event a criminal were

to intrude into -her house, she would run outside -in

onder to lead him away from her’ children. (R.- 59,

2001-02, 2006, 2021-22. ]

At 6:30 p.m. on April 3, 1962, Deputy Dodd ‘left

to attend his evening college classes. [R. 62.] About

midnight Mrs. Clair McWilliams, a resident in the aréa,

was awakened by “a very high, shrill, prolonged scream.

It: had a.very unearthly sound to it.” She ran to the

driveway on the adjoining property and observed a

figure running toward the gate of the patio in a rapid

ig-zag motion. She also heard the sound of twigs crack-

ling to her left. As Mrs. McWilliams approached with

her 17-year-old son, who was armed with a rifle, and

her small dog, she realized that the figure was that of

ee ee ener were

absent, Wet stains which he noticed on

‘coffee table, and two chairs appeared to

Sixty dollars from a drawer, and a knife

a kitchen knife rack, were missing. After

phone calls to various friends to ascertain the ,

abouts of his wife, Deputy Dodd contacted the Vem

tura Police Department. 08 62-64, 67-68, 72, os

85.]

Police inspection of the neighborhood disclosed the

following. Marks in the driveway where Mrs. Dodd’

body was found were indicative of a struggle. A patk

of matches and a package of Salem cigarettes (a brand

smoked by both Mrs. Dodd and petitioner) were found

in this area. A trail of blood led from them to the lo

cation of the body. Across from the driveway in a

grassy area were signs of a person’s having crawled

along the ground. [R. 92, 140, 154-55, 1321-22, 1491]

On a railroad embankment about 600 feet from

the Dodd home, the police found the missing knife be-

longing to the Dodds, a pair of panties, and Mrs. Dodd's

eyeglasses. An indentation in the soil suggested that a

person had been sitting or lying with his head at the

top of the embankment, and further down another

indentation suggested the former presence of a

oniilloca

person. Other marks indicated that someone had gone

ote se ofthe embankment and sipped backward

[R. 83, 86, 142-43, 148-49, 153.]

- The autopsy performed on Mrs. Dodd's remains dis

closed ‘several knife wounds in the neck penetrating

the carotid artery, the thyroid, and the voice box, caus-

ing extensive hemorrhaging. There were also pressure

mark. abrasions on the neck, bruises on the arms and

legs, and knife wounds on one arm and three fingers

and in the chest, one of the lungs, the abdomen, the

liver, and the back. The autopsy verified the presence

of a 5-month-old male fetus and in the vaginal area the

presence of sperm and acid phosphatase, a chemical

substance produced by the male sexual organs. In the

opinion of the pathologist, sexual intercourse had oc-

curred no longer than two to three days prior to death.

f[R. 180-205, 210, 215-16, 677.] Deputy Dodd last

had sexual intercourse with his wife about nine days

prior to her death. [R. 125.] Soil deposited in the

crease between the deceased’s buttocks was similar in

type to that found on the railroad embankment. IR.

217, 616-19, 677-78.] ibn

2. ‘Ths Murder of Mary Wiallved Eaten

~ In April of 1965 Mary Winifred Eaton, a Cauceitahn

woman in her sixties, lived with her husband Frank

Eaton in the City of Ventura, California, with their

adopted children, Eddie Eaton and Susan Mann, -and

Susan’s husband, David Mann. [R. 1128-A, 1740-41,

1802-03, 2860.} On April 26, 1965, Mr. Eaton left

for work at 7:35 a.m. and Susan, David, and Eddie left

the house at 8:20 a.m. [R. 848, 1741.] At that time

Mrs. Eaton told Susan that she was going to wax the

floors, as she apparently began to do later in the morh-

ing. [R. 1742, 1749-50.] A commercial census kee

who: had previously known Mrs. Eaton received ig

answer upon knocking at the Eaton residence at 10:00

a.m. but did speak to Mrs. Eaton on a second visit that

morning between 11:00 and 11:30, No witness ¢ y

fied to seeing her alive after that hour, [R. 771-754),

Upon returning home about 3:40 p.m., Susan and

David were greeted by petitioner from across the '

{R. 1742-43.] Mr. Eaton returned home about 5

p.m. [R. 849-50.] The Eaton family became eco

when Mrs. Eaton did not return, and they began’a

search of the house. Her automobile was in the garage,

and a door between two adjoining garages, usually kept

closed, was open. [R. 857-59.] Money was missing

ftom a grocery purse, and a vacuum cleaner was over

turned. [R. 852, 856-57, 1746, 1763-65.] At 6:45,

p.m. Mrs. Eaton’s body, initially overlooked because it

was mostly covered with bedding, was discovered ‘by

her husband in Eddie’s bedroom. [R. 861.] Biss,

Mrs. Eaton’s hands were bound behind her with a

belt, and another belt was tied around her neck. [R

902-04, 1358-59.] An autopsy revealed that a knifé,

apparently taken from a drawer in the Eaton residence,

had been used to stab her repeatedly; the major cause

of death was hemorrhage and shock caused by a large

wound in the neck severing the jugular vein and the

trachea and reaching the spine. Other knife wounds

were located in the back of the neck and the chest,

with five entries into the heart. A vaginal smear taken

from Mrs. Eaton disclosed the presence of sperm and

seminal fluid. [R. 1631-38, 1643-46, 1649, 1662, 1807,

1834, 1839.] Mrs. Eaton had last had sexual relations

with her husband seven days prior to her death, and

apparently he was physiologically incapable of im

ducing sperm. [R. 867, 1596.]

“ Mrs. Eaton’s body had been partially covered’ with

bedding, and an attempt had been made by her assail-

ant to remove blood from the knife prior to replacing it

in the kitchen drawer. [R. 861, 1288-89, 1839.] Two

purses were found near her body. [R. 862-63. ]

k Stements and Condat of FetionerImpcaing Hi i he

Dodd and Eaton Murders

On August 25, 1961, petitioner, a Negro, was de-

livered to the Southern Reception Center of the Cali-

fornia Youth Authority at Norwalk; he was transferred

to the Preston School of Industry on October 10, 1961,

and paroled on March 12, 1962. [R, 1966-67, 2850.] .

On March 27, 1962, petitioner’s mother, Mrs. Liller

Lewis, purchased a brown and tan 1953 Chevrolet from

McMonica Motors. Thereafter petitioner stopped by the

agency frequently; he was driving the vehicle. [R. 2432-

37, 2479-81.)

On April 3, 1962, petitioner asked Mike Dixon to

drive him home from ‘the residence of a friend named

Carter. When Dixon refused, petitioner pulled a knife

on him, but Dixon viewed the incident as a joke, and

he and Thomas Chambers drove petitioner home about

11:00° p.m. Petitioner told Dixon that he had ‘a date

with a “white woman” that evening. [R. 495-99, 508-

09, 512-13.] Three or four days earlier petitioner had

spoken to Chambers about a “white woman” and had

stated that “she had a good pussy.” [R. 238. ]

Dixon saw petitioner at police headquarters on the

morning after the Dodd murder, at which time peti-

tioner related that he was being held on suspicion of

having killed Mrs. Dodd, [R. 502-03.] On the fok

lowing day, at Carter’s house, petitionér told Dixon,

“I killed the Dodd woman’”; because “‘[s)he was

going to cut me loose.’” Asked about a scratch on hig

tioner replied, “ ‘Nothin’ but that good lovin’,’” When

petitioner removed his shirt while washing an automo.

bile, scratches on his back were apparent. Asked about

them, he reiterated his previous remark: [R. 503, 505.

07.] : aiden:

However, on the evening after the Dodd mutter

Chambers had seen petitioner -at Carter’s house and

had asked him about the scratch on petitioner’s face,

Petitioner ‘replied that. Ida Spellman, a policewornan,

had slapped him (which in her testimony she denied),

[R: 240-41, 607-08.] Two or three days later petitioner

told Dixon; as well as petitioner’s parole . officer, that

he had scratched his face on a nail in a garage, [R_

241,601, 605.) When Dixon and Carter confronted

him with his inconsistent explanations concerning the

scratch, petitioner said he did not wish to discuss the

matter. About this time petitioner was present when

the Dodd murder was discussed and said he did not

want to hear about it. Petitioner had money .at. this

time, and four or five days after the Dodd murder he

apparently lost $75 or $80 gambling. [R. 241-43, ]

Three months after the murder, Deputy Dodd saw pe

titioner at the booking office of the Ventura Couity

Jail. At that time Deputy Dodd was. not investigating

any crime involving petitioner, nor’ did he: intertogate

him. Petitioner initiated a conversation and asked Depu-

ty Dodd if he was the deputy sheriff whose wife had

recently been killed. When Deputy Dodd replied af

firmatively, petitioner declared, “ ‘It must have been a

—{]—

pretty bad guy that would do something like that,’”

[R. 87-89, 92.}

On July 19, 1962, petitioner was returned to the cus-

tody of the Youth Authority at the Preston School of

Industry and transferred to the Southern Reception

Center on September 28, 1962. He was paroled on

December 20, 1962, only to be returned to the South-

ern Reception Center on February 20, 1963, and trans-

ferred to the Youth Training School at Ontario, Cali-

fornia, on March 1, 1963. Paroled again on January

16, 1964, petitioner was returned to the Southern Re-

ception Center on March 30, 1964, apparently on a

charge of assault and battery, and transferred to the

Youth Training School on April 20, 1964. [R. 1375,

1966-67. ] :

During these periods of custody he made the follow-

ing incriminating statements to other inmates.

In July of 1962, Barney White met petitioner in

the Ventura County Juvenile Hall. The two of them

observed Deputy Dodd and shortly thereafter petitioner

told White that when he was burglarizing the Dodd

house, Mrs. Dodd had tried to get him to leave; he

had picked up a knife, chased her outside through a

field near the railroad tracks, and raped and killed her,

leaving the knife near the tracks, (R. 453-56. |

About the same time, petitioner pointed out Deputy

Dodd to another inmate as the deputy whose wife had

been killed, and told the inmate, Bennie Rochester, that

petitioner had killed her. Subsequently, petitioner said

he “was just kidding,” and upon encountering Roches-

ter shortly before the present trial, three years later, pe-

titioner told him he was “going to get” him. [R. 468-

71.)

Peti

with

two

13, 1965, thirteen days prior to the rape-

Eaton, the county health department

ult

ofl

“knows what he sees,” and who “could do sliost

anything if he decided to really do it”; a person “having

lots of ability” but not always truthful. {R. 886-90,

1803-06. }

‘|

ree

subject of “how to make girls hot.” [R. 352.} Peti-

tioner also attempted to listen through the wall to a

“young couple that lived next door, . . . getting ready

to go to bed,” and proposed a scheme to take photo-

graphs of persons through their windows at

blackmail these individuals. [R. 354-55.}

On April 26, 1965, petitioner was seen

general neighborhood of the Eaton residence

ious witnesses — at 10:30 a.m. before 11:00

around 11:00 a.m., and at 11:30 a.m. [R. 722-23, 763

2376-77, 2381-82, 2396-97.] About noon, petitioner

asked Mr. and Mrs. Ira Shinavar, who lived approx-

teh

HE Hain

geet

ial

TTL

Corina on a date which she placed at April 26, 1965.

He stayed at her house occasionally and kept some of

his clothes there. He showed her Mrs. Eaton’s two

rings. The wedding band fit her finger, but she was un-

able to remove it; the engagement ring was too

small for her to wear. When Corina asked petitioner

where he had obtained the rings, he at first ignored

the question and then said he had a job as a fry cook

in Ventura. When Corina’s mother twice asked that

same question, petitioner did not respond but indicat-

ed that he was singing at a night club and working

as a fry cook. [R. 993-96, 1101-09, 1146, 1153, 1193.]

—16--

engagement ring on the finger of Belinda Pickens, te}

ing her that he hoped he had gotten the right size. He

declined to tell her where he had obtained it. {R

1021-23, 1026-29.] Thereafter petitioner, Belinda, and

some of their friends drove into the mountains. Whep

they parked, they “heard something,” and petitioner

took a long knife from under the car seat. [R. 1034

36.] Later that night petitioner and Belinda spent some

Sue cae Eee th ore, Senate Manet aaa

fer of sexual relations. [R. 1038-39. ]

As petitioner and Tenner drove back to Venturi

that night, petitioner said to him, ““When I gets back

to Ventura, the police will probably be waiting for me

when I gets back. They will probably be settin’ on my

doorstep when I get to Ventura.’” [R. 947.]}

Indeed, they were. As he walked up his driveway

at 6:00 a.m. >a April 27, 1965, petitioner noted th

presence of police officers, who had awaited him

there since 7:30 a.m. [R. 1251-53.] Petitioner inquired,

“*You guys looking for me?’”, and accompanied the

officers to Inspector King’s office, where he appeared

very nervous, was unable to stop pacing, and expressed

his impatience. [R. 1253-54.]

Two days later, while in custody, petitioner was in

formed by Inspector King that Mrs. Eaton’s rings had

been found and remarked, “‘Oh man, I’ve been had

Them damn rings.” [R. 1431.] The rings, which

Mrs. Eaton had been seen wearing the day before her

death, had wax on them, possibly the type she was

using on the floor, and a quantity of blood too small to

type. [R. 1847-48, 2407-10.] Petitioner told Inspector

King the following conflicting stories concerning Mn.

Eaton’s rings, which bore her initials and her hus-

band’s he had had them “ ‘for so goddamn long it’s

been pitiful’”; he “ “bought them from some cat... .

down on the corner, yesterday,’” and that when he ob-

tained the cultivator from the Eaton residence he saw

the rings “ ‘laying on the ground and I picked them up

and stuck them in my pocket.’” [R. 1431-32, 1436,

1444.]}

In early May petitioner told an inmate in the jail,

David Luker, that he had “killed the woman . . . but he

didn’t rape her.” [R. 1694-95, 1698.]

A cellmate of petitioner's, Bobby Williamson, testi-

fied to the following statements made to him by peti-

tioner in late April or early May of 1965. Petitioner said

he knew who killed Mrs. Eaton ‘but that it was not he;

that he had gone to her house to borrow some tools,

saw the rings inside the open door, and took them.

leaving there with bloody gloves in his pocket.” [R.

son that he had been approached by two male Negroes,

one of whom was “going with” her, and that they had

asked him “did he want some pussy.” Petitioner re-

sponded affirmatively, but when informed that they

were referring to Mrs. Dodd, declined the offer be-

cause he “didn’t want to get in any trouble.”

Petitioner told Williamson that someone in a bar had

approached him to tell him that Mrs. Dodd had been

raped, killed, and “thrown out in an alley.” Nonethe-

less, petitioner recounted that he might as well plead

guilty since “the district attorney's office was going to

railroad him anyway.” [R. 1131-33.]

lies

In June or July of 1965, petitioner showed Willian

son his sexual organ and said he would show it tote

doctor to demonstrate that, having gonorrhea, he could

not have raped Mrs. Eaton. Petitioner also inquired

whether Williamson thought “if he tried to act insang

would it do him any good,” and Williamson said ‘te

“didn’t think it would with the charge he had on him”

[R. 1133-34.] On August 19, 1965, petitioner told

Williamson, “if they didn’t get him out of that county

jail, he was going to kill someone else.” [R. 1133.]

Near the end of October, 1965, petitioner told Lien —

tenant Urias of the Ventura Police Department that one

of his fellow inmates, Sam Waldron, had made state

ments indicating the inmate’s involvement in the Dodd

murder. Petitioner also told Urias, “ ‘Well, look, I'ma

marked man. . . . And now a story about some rings

I’m doomed.’” [R. 1715, 1717, 1720-21.] ie

On November 8, 1965, at the jail, petitioner ap

proached Deputy Sheriff Gary Markley and inquired

when petitioner would get back his shoes. When told

that they were in evidence, petitioner became excited

and said, “ “Those weren’t even the shoes I was wear-

ing when I—’”; he then stopped himself, and his face

went blank. [R. 1821-23.] On November 24, 1965,

Deputy Sheriff Don Kent, who had custody over peti-

tioner during the present trial, heard petitioner make

the following statement during the course of the testi

mony of Mrs. McWilliams, the woman who found Ms.

Dodd’s body: “ ‘She is saying things that only I know.”

While Deputy Dodd was testifying with reference to the

amount of money in the drawer at the Dodd residence,

petitioner told Deputy Kent: “‘He wouldn’t know that

unless someone told him.’” During the course of a

cess later that day, petitioner asked Deputy Keat

~ Se

were out there to kill me.’” [R. 1825-27.]"

C. Breas Rohe ot Eels Sop

, “Penalty bold

1. The Marder of Clyde J. Hardaway bate

On the morning of June 7, 1962, Edward: Danner,

an employee of the Park Department of the City of

Pasadena, California, discovered a body, later: identi-

fied as that of Clyde J. Hardaway, a male Negro in. his

forties, in a park located near Devil's Gate Dam. {R.

3424, 3481-83, 3865.] Mr. Danner attempted to

rouse the man and, realizing that he was dead, sum-

moned the police. [R. 3482, 3485. ] ae '

When the police turned the body over on its back,

the penis was exposed through the fly of the pants. [R.

3881, 3883, 3929.] There was blood around the face

and skull portions of the body. [R. 3879.] Automobile

tracks were apparent near the body as well as two

moist spots which, the officers concluded, were where

two persons had urinated on the ground. [R. 3871,

3930.] An autopsy determined the cause of death to

be hemorrhage and brain damage resulting from two

gunshot wounds, in the left temple and the rear of the

skull, with particles of burned gunpowder embedded

in the area of the wounds. The fatal weapon, which

ballistics tests showed might have been a derringer,

was determined to have been fired in each instance

“The trial court’s findings of fact on the issue of guilt: ap-

pear at R. 3372-3419.

whey

—— 20)

from less ‘than’ four inches from the victim's hea

There was also an abrasion on the victim’s forehead

and a contusion over one of his eyes, apparently caused

by the assailant’s dragging the body along the ground

{R. 3498-3501, 3512-16, 3528, 3921-23, 4229, 4236)

Laboratory analysis showed 0.15 percent alcohol in the

deceased’s blood, which would have made him 4

borderline drunk driver, and indicated the presence of

blood and semen on the fly area of the boxer shorts

worn by Mr. Hardaway at the time of his death. R

3519, 4177.]

Petitioner was identified as Hardaway’s assailant

ee te ee

ments.

Ow thi wight “Gi his Gouin’ Whe acess, a homo

sexual, had been drinking heavily and had on his per.

son $100-$200. He was planning to send money to his

daughter in Texas, although it was also his habit to

carry large sums of money on his person. {R. 3575.

78.] That night a friend of his saw Hardaway talk

ing to a young male Negro in Hardaway’s automobile,

and apparently saw Hardaway hand the person some

money. [R. 3565-67.]

On the morning of June 8, 1962, the deceased’s ve

hicle was found abandoned in Oxnard (a city adjacent

to Ventura). Blood spots were observed on the out

side of the vehicle. [R. 3854, 3857-59. ]

On June 7, 1962, petitioner had purchased a used

automobile in the City of Ventura, making a $107

cash down payment on the $132 vehicle. [R. 416]

That same day he was back in Pasadena giving Corina

Franklin a ride in his new acquisition. When she asked

him where he had obtained it, he replied, “‘None of

—21—

your business.’” [R. 3659-61.] That same day peti-

tioner pulled out a gun and said he was going to shoot

a dog that had been playfully chasing them. Corina’s

inquiry as to where petitioner had obtained the weap-

on met with the same response. [R. 3661-62, 3673-

74.] The vehicle was later found abandoned on a Los

Angeles street. [R. 4091-92. ]

A gun having the same appearance as the: one

viewed by Corina, a derringer with white handles, had

been stolen from Mr: Roy Young in Ventura on June

6, 1962, the day before Hardaway’s body was found.

The gun, which Mr. Young kept under the. head of his

bed, was taken when someone broke the window over

his bed and entered while Mr. Young was at work.

The theft took place one or two days after Mr. Young

had shown the weapon to petitioner and let him fire it.

[R. 3661, 3968-72, 3975, 4156-57.] Petitioner had

told a friend, “ ‘I got a little derringer.’” [R. 3896.]

Petitioner’s presence in Ventura on the day of the theft

was established. [R. 4166-68. ]

On June 11, 1962, a male Negro approximating peti-

tioner’s physical description, although described as

about 22 years of age, pawned Mr. Hardaway’s camera

in Pasadena, signing petitioner’s name, but never re-

claimed the camera after a notification of the expira-

tion of the pawn period was sent to 1950 Mentone

Street, Pasadena, the former address of petitioner’s half

sister. [R. 3944-51, 4016-18, 4173, 4590, 4823.]

In June and July of 1962, petitioner volunteered to

John Pena and Arthur Pena, in the juvenile tank of the

Ventura County Jail, that petitioner had been picked

up hitchhiking in Los Angeles by a “queer,” went into

the mountains with him, pulled out his derringer, made

—22—

him get down on his knees, and when “the guy beat

down to blow him” shot him in the head a couple‘@f

ti killi hi t ki g his Il ’ and 7 “the

money to buy an automobile. [R. 4024, 4026-27, 4029.

Fae

31.] ay

_ Sometime in 1963 or 1964, at the correctional

Youth Training School, petitioner volunteered to ay

other inmate, Richard Carreiro, that he had shot a homo.

sexual “ ‘blood’” (fellow Negro) in the head and killed

him, that it was like “playing the part of the Deacon?

(a hired gunman, portrayed on television, who made

his victims kneel and then shot them in the forehead),

[R. 3547-49, 3557.] At this institution petitioner

showed a photograph of Mr. Hardaway’s daughter, in

scribed to Hardaway and taken from his wallet, to other

inmates in the course of their showing each other their

girl friends’ pictures, [R. 3889-90, 3893. ]

2. Other Felonious Conduct by Petitioner: Burglaries, At

tempted Rape, and Assault With Intent to Commit Rape

On July 6, 1961, petitioner burglarized Scritchfield

Motors in the City of Ventura. Petitioner broke several

windows, entered the premises, and attempted to steal

an automobile. Petitioner managed to elude a

police officer who fired a shot at him. [R. 4201-04,

4243-44, ]

Sometime during the summer of 1962 between 9:00

and 10:00 one evening, petitioner removed the screen

and opened a window in Louise Gunn’s house in the

City of Ventura. Mrs. Gunn took her gun, “eased out”

the back door, and observed petitioner, leveling the

gun at him. He ran away and then proceeded to walk

to his house, whistling. On the following day Mrs.

Gunn spoke to petitioner and his mother about the in-

—23—

cident, and he “said something smart” to her. Mrs.

Gunn told them that the only reason she did not shoot

him was that she had known petitioner’s mother. for

years, and that if he did it again petitioner would be

killed. [R. 4094-98.] Within + adshamleaddientitaictied

stolen from her house, [R. 4118.]

‘On Christmas Day of 1962, Dorothy Ann Piggee,

then 15 years of age, met petitioner-in the City’ of

Pasadena. After spending some time with him and

some friends, she accepted his offer to “walk me home

and see that I got home safely.” .On the way,

petitioner suddenly pulled her down. When she .began

to scream, he put his hand over her mouth and told

her to “shut up or he would kill me:” Petitioner

then terrified her by placing a letter opener at her neck

and tore off her underpants. In the victim’s words, “he

tried to have an intercourse with me, but he couldn't.

. [H]e put his finger up there, and he broke my

maidenhead,” and bloody fluid. was emitted from her

sexual organ. Petitioner was unsuccessful in achieving

entry with his. sexual: organ. He told her, “ ‘How would

you feel, not having a girl for a year.’” She then ran

home, with petitioner in pursuit, and complained to her

mother, who decided to take her to the emergency

hospital. Petitioner then came up to her mother and

“told her that he had did it.” [R. 4250-54, 4261,

4264, 4281-83.] The victim was medically treated for a

tear in her hymenal ring..[R. 4123-24, 4129.]

Emory McMurray, Jr. had petitioner assist him in

his commercial rubbish collection business. He directed

petitioner to pick up some refuse from Mrs. Beverly

Metcalf, but never from Mrs. Deborah ll. —R.

4316-21.] On ary 4, 1 1oner drove a

truck to Mrs. Me ence and picked up the

Be «3,

Bi wk

¥ tee A

a= 4s

trash. He asked Mrs. Metcalf how her husband was

and whether they had a dog. Then he asked to use the

bathroom. After hesitating, she gave him permission,

and while he did so he-left the bathroom door open,

After returning to the trash receptacles outside, peti-

tioner tried to re-enter through the back door, but it

was locked. Mrs. Metcalf then denied his request to

enter to use the telephone. [R. 4330, 4333-36, <—

40.]

' Less than an hour later, petitioner appeared at nk

Bunnell’s house and asked to use the telephone, which

she let him do. He chatted with her a few. minutes,

and then she suggested it might be time for him to re

turn to work. Instead of going out the front door a

she expected him to do, he sat down on a chair in the

living room. She then repeated her suggestion, where

upon he got up, spun her around, grabbed her across

the chest, and placed a hand over her mouth, dragging

her some distance. She screamed and fought him,

liberating herself and reaching the front door, and he

finally obeyed her command to leave. Petitioner’s shirt

was filthy, and she found her face and shirt covered

with black dirt. [R. 4330, 4362-71, 4378.] Her

mouth was full of soot and dirt from petitioner’s gloves,

‘[R. 4380.] Mrs. Bunnel reported the incident to the

police as an assault with intent to commit rape. [R.

4296-97. | |

3. Psychiatric and Psychological Evidence

Three psychiatrists and one psychologist testified at

‘the penalty proceedings, all having been called pf the

prosecution.

On March 20, 1957, Dr. Walter Streitel, a oF

chiatrist, examined petitioner at Juvenile Hall in Ven-

tura. At that time, when petitioner was 11 years of

—25—

age, he had a history of “difficulties with the law.” Dr. —

Streitel “found absolutely no indication of any psychotic

manifestations”; petitioner “fitted most adequately. in

the category of a sociopathic personality disturbance.”

{R. 4049-52.] Dr. Streitel noted, “we haven't. seen

much benefit from all of the efforts made to rehabili-

tate this kind of a person.” [R. 4053-54.] Petitioner's

commission of the Eaton and Hardaway murders was

“entirely consistent” with the foregoing diagnosis, and

in conjunction with the commission of the Dodd murder

led Dr. Streitel to conclude; “It is rather unlikely that

rehabilitation could be expected.” [R. 4056-63. ]

On September 15, 1961, Dr. Stephen Howard made

a psychological evaluation of petitioner at the Southern

Reception Center and Clinic of the California Youth

Authority. Dr. Howard concluded that petitioner was

a person “of adult normal intelligence” with “strong

underlying anger and aggression” and therefore “Do-

tentially dangerous.” Dr. Howard “diagnosed him basi-

cally as an inadequate personality,” finding that his

character disorder was “entrenched” and that .“ ‘the

prognosis is poor’” for change in the future. [R. 4071-

75.]

In 1963, at the Southern Reception Center and Clinic,

Dr. Joseph Veich, a psychiatrist, examined petitioner

and developed a history of his mental background.

Dr. Veich concluded that petitioner was not a “sexual

pervert or sadist” and that petitioner had no mental

or emotional disorders. Dr. Veich did not find him to

be a sociopath. Petitioner was mentally normal and

did not give much indication of remorse. [R. 3474-78.]

In April of 1964, Dr. Veich again saw petitioner at

the same institution and found his mental condition

—26—

actinngitsdentntdly: eateitr entcstetetitigdeall

{R. 3478-79. } 2

On April 27, 1965, Dr. Donald Patterson, a pay

chiatrist, examined petitioner at the Ventura Polig

Station. Petitioner showed no evidence of a psychote

reaction and was fully in contact with reality. Dr. Pat

terson’s conclusion was “that he did not present 4

mental illness or psychosis, but that rather he pre

sented evidence of a long-standing personality malsé

justment . . . which in my opinion qualified me ®

diagnose him as presenting a sociopathic personality

disturbance.” [R. 4185-87, 4191-93.] Asked what

the prospects for rehabilitation were for a man wih

petitioner's sociopathic personality difficulties, Dr. Pa

terson concluded, on the besis of petitioner's “long i

Nae the cmmonty fro dering hi nd

treating him unfairly, that the “prospects . . .for help

ing this individual are extremely limited.” [R. 419496)

4. Defense Evidence Related to Petitioner's Background’

Petitioner's mother testified in his behalf. She wa

sare

13, and a second marriage to a pastor,

California in 1930, her separation

and her move to Ventura in 1936.

paquagage ree 1getseeyy HE

x 2 38 ~ =

el ? alas 23% ett

ARH HLT lal

itis tieiail He

i yiddagtial Weld plas HITT

ajityis

THE

aid

he te

seek a job,

‘lf

pee yg. Deir y Beings

pre phe thy tar ttn: Si gay mene

turned to his mother’s house and

af lial:

~~ =

and was working toward a degree in sociology. {[R.

4004. | 8

The defense also called four officers of the Cali-

fornia Youth Authority, who testified that during his

various periods of commitment petitioner appeared well-

adjusted, obedient, agreeable, and generally coopera-

tive. Petitioner was an especially good athlete and con-

sidered the “possibility of a future in collegiate ath-

letics” since one or two colleges had made him an offer.

(R. 4605-08, 4611-12, 4643-45, 4649-52, 4659-64. ]

However, during his confinement he was involved in

instigating a fight, which caused a month's postpone-

ment of his parole. [R. 4654.] And one of the Youth

Authority officers conceded, with respect to petitioner's

various commitments, “I honestly don’t feel that there

was a great deal of rehabilitation done with [him].”

[R. 4675.]

5. Windings of the Trial Court in Fixing the Punishment at

“[F]undamental, as I see it, is the grave responsi-

bility of the Court to weigh and to ponder the

—30—

future exist, the defendant would or might repeg

and recommit crimes of extreme violence. And |

| ~ Must necessarily be concerned with whether or no

there is a reasonable prospect of the rehabilitation

of this individual.

more recent commitments at the Preston School of

Industry and the Youth Training School, both ad

ministered by the California Youth Authority. Ip

the instances of his parole from the

level, his periods of surcease from criminal behay.

ior have been of short duration. Now he stands

convicted of two brutal, cold-blooded and vicioy

killings, together with the finding that I have her

earlier made of his responsibility for a third hom:

cide. Interspersed with the foregoing have been is

stances of assault, rape and robbery. Such record,

at the very least, demonstrates an indifferent, a-

rogant and obvious disregard for the dignity and

value of human life and the rights of others,

“The question must then be asked as to what

kind of person, now at the very threshold of his

majority, would or could so conduct himself. Dr.

Streitel, who examined the defendant when he

was eleven years of age, reached the conclusion

at that time that he then fitted into the category

of a sociopathic personality disturbance. In re

sponse to Mr. Deem’s hypothetical questions con

way and the Eaton incidents, the doctor

that the conduct there indicated was consistent

with the diagnosis that he had made of the de

fendant several years before. According to this

qualified psychiatrist a sociopath, despite the

possibility of being a pleasant and charming per-

son, has neither regard for the truth or for re-

sponsibility. He is self-centered, with little, if any,

concer or respect for laws or rights of others,

and because of his inability to learn from expe-

violent

(li

past from all of the efforts made to rehabilitate this

Judge Berenson then reviewed the opinions of Dr.

circumstances in which he now finds himself. Mr.

Ashby would urge that he is but the product of an

American tragedy, for which he is not fundamen-

tally responsible. This encompasses a cold, un-

relenting, a bleak and loveless environment, to-

gether with the frustrations of poverty and of re-

jection and, perhaps, of color—all of this part of

a certain social and economic disorder of the day.

Because of his growing up in this kind of frustrat-

ed existence, the defendant, as Mr. Ashby views

the situation, should thus be understood as to the

reasons for his emergence as a person who is

ity, a social adjustment, and an exemplary personal

conduct; and beyond any question of doubt this

defendant has had the constancy of a love anda

loyalty given to him by a mother, too doting and

protective, perhaps, at times, but who without

education or material advantage to herself has

sought by virtue of her own long and hard toll

and labor to provide the defendant with a home,

some respectability in the community, and some

measure of economic assistance. Mrs. Liller Lewis

is not, in my judgment, a person here to be com

‘ demned nor to be censured, but she is to be pitied

“And I cannot avoid the observation that there

are many, many persons with early backgrounds

much worse, indeed, than that of this young map

who have developed and lived as useful and

or conscientious effort to become so rehabilitated.

“Finally, I have without avail searched and

sought for some indication in this defendant of

remorse, of regret, of self-reproach for his acts,

of any expressed repentance, or of contrition. It is

worthy of note that although . . . [the Youth Auv-

thority officers] could speak of the social adjust-

ment made and the athletic prowess demonstrat-

ed by the defendant while institutionalized, the

record is completely barren from their testimony

concerning any show of words or deeds of this

young man evidencing any of the foregoing.

“No more awesome or lonely duty, I am sure,

can be cast upon any individual than that which

this Court is now required to discharge. In the

final analysis I must reach a decision consistent

with the dictates of my mind and conscience and

heart in accordance with the laws of this state ang

my responsibility as a judge. The Court seeks tp

be merciful, but also it must be just. That 1

feel a compassion and pity for a fellow humag

being so young in years is manifest. That I must

also be sorely concerned with the multiple and

aggravated crimes of this defendant against the

victims here involved and, indeed, against

in general, is self evident. Against the background

of these several considerations I cannot, nor do,

reach any other conclusion or finding than that

the penalty to be imposed should and must be

death.” [R. 4989-92. ]

SUMMARY OF ARGUMENT.

The Fifth Amendment, ratified simultaneously with

the Eighth Amendment in 1791, recognized in its cx.

press reference to “capital” offenses what had been im

plied in provisions of the Constitution as originally

drafted, that death was among the forms of punish-

ment available to the federal government. The fact

that, in the period immediately preceding and following

adoption of the Eighth Amendment, state and federal

constitutional prohibitions against cruel and unusual

punishment coexisted with state and federal enactments

punishing a wide variety of offenses with death, is in-

dicative of the intent of the Framers to bar only those

punishments which are both cruel and unusual either

in their inherent form or as grossly excessive in their

application in relation to the seriousness of a particu.

lar criminal act. A long line of decisions by this Court

confirms this view of the Eighth Amendment.

This Court’s use of the words “evolving standards

of decency that mark the progress of a maturing so

limel canal he he Ceo cede te

cont ‘sapecl ciocw iat’ Callus Logins

Petitioner’s preoccupation with the judicially-arrest-

ed rate of executions, as an alleged indicator of popular

disfavor with the death penalty, ignores the Teality that

a much more accurate barometer of the “evolving stand-

ards of decency” is the constant number of defendants

Se ee eee ee ae

tems under sentence of death.

Most of petitioner’s arguments could more properly

be directed to a legislative body, and respondent is

hard pressed to comprehend how a constitutional issue

is raised by petitioner’s claim that alternative remedies

to capital punishment are available to the state and

federal governments. Respondent does not view its task

as encompassing conclusive proof of the social utility of

capital punishment. The burden, if any, which re-

spondent must assume is only to demonstrate that there

~ WT pop v. Dulles, 356 U.S. 86, 99, 101 (plurality opinion

of Warren, C.J.).

—36— e

is in fact a basis upon which the California Legislature

could reasonably conclude that certain serious offenses

should be punishable by death. a

There exist obvious flaws in the methodology of the

theoretical studies upon which petitioner relies. On the

other hand there are numerous graphic illustrations of

the deterrent effect of the death penalty collected by

respondent, as well as proof of the inadequacy of

incapacitation by life imprisonment as protection of

society. Thus petitioner has failed to make his case

that no legitimate social aim can be furthered by im

position of the death penalty.

Hard figures from the files of the California State

Prison at San Quentin and other sources put the lie

to the frequently voiced myth that the death penalty

is arbitrarily and discriminatorily imposed upon racial

minorities, the poor, the uneducated, the mentally

deficient, and the “friendless.”

Finally, it is clear on the facts of the present case

that death is not a cruel and unusual punishment for

petitioner, the unrepentant perpetrator of three known

separate murders committed for pecuniary gain

and sexual gratification, as well as numerous other in-

stances of violent felonious conduct. The psychiatric and

psychological evidence is unanimous in establishing

that petitioner had no mental disorder and in dem

onstrating that the likelihood of petitioner’s being re

habilitated is very slight. The validity of this con

clusion is further supported by petitioner’s repeated in-

carcerations and failures at rehabilitation, and his

statement, while awaiting trial on the present charges,

to a fellow inmate, that he would kill someone else if

he was not released from custody.

Sort

—37—

Respondent submits that nothing has happened in

the 180-year history of the Constitution, or in the 300-

year history of capital punishment in this nation, which

can alter the fact of the Framers’ contemplation of the

death penalty as a form of punishment of necessity

available to the States for the protection of society in a

case such as the one at bar.

Resulting From His Conviction of First ‘Degree

Murder, Do Not Comprise Cruel and U

A. Execution Is a Form of Punishment Expressly Recognize

by Provisions of the Constitution and Upheld as Constit,

tional in a Long Line of Decisions by This Court

The sole question before this Court, as set forth in

its grant of certiorari, is: “‘Does the imposition and

carrying out of the death penalty in this case constitute

cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments?”

Justice Black defined the nature of the task presently

facing the Court when he noted last Term with refer.

ence to procedural attacks on the death penalty:

“The Constitution grants this Court no power to

reverse convictions because of our personal beliefs

. . . Our responsibility is rather to determine

whether petitioners have been denied rights ex-

pressly or impliedly guaranteed by the Federal Con-

stitution as written. . . .”

McGautha v. California, 402 U.S. 183, 225-26

(Black, J., concurring). See also id., 195-

96, 221-22.

The Constitution as originally’* written contained

only indirect allusions to capital punishment.”®

a7_... US. ...., 91 S. Ct. 2280.

18The Constitution was adopted by the Constitutional Con-

vention in 1787 and ratified by the States in 1788. Legislative

Reference Service, Library of Congress, Constitution of the United

States of America 28-31 (Rev. Ann. ed. 1964).

*Two of the constitutional provisions suggest that the Fram-

ers of the original Constitution contemplated capital punishment

as an available form of punishment. Article II, Section 2, gives the ®

(This footnote is continued on next page) -

—39—

Among the Constitution’s objectives, as set forth in the

preamble, were to “establish justice, insure domestic

tranquility, provide the common defense, promote the

general welfare, and secure the blessings of liberty to

ourselves and our posterity.” The specification of these

objectives suggests that the Framers intended the new

federal government to have the inherent power of all

governments to decree whatever customary punish-

ments for criminal conduct were deemed necessary “to

protect the lives, liberties and property of its citizens,”

In re Kemmler, 136 U.S. 436, 449, absent particular

prohibitions written into the Constitution.” Similarly

three years later the Tenth Amendment recognized

that powers not prohibited to the States (or delegated

to the federal government) were reserved to the respec-

tive States or to the people.

The first ten Amendments to the Constitution were

proposed by the First Congress and in turn ratified by

the States in 1791. Among these the Fifth Amendment

recognized expressly what had been implied in the afore-

mentioned provisions of the original Constitution, that

death was among the forms of punishment, for criminal

conduct, available to the federal government. That

Amendment contains the mandate that “No person

President the “power to t reprieves,” the latter term bei

Dicdonay 1466 (4th ed. 1951)

primarily “(t]he withdrawing of a sentence of death for an in-

American jurisdictions retaining capital re t, is death

Bedau, The Death Penalty in America 6, 43 (rev. ed. 1967).

and ex i

rtrd to habers corpus except in limited circumstances.

Bat es al

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meager debate that attended the insertion of this phrase

into Virginia's constitution of 1776 (which was fob

lowed by the phrase’s appearance in the constitutions

of several other States and the federal Northwest Or-

dinance of 1787), the debates of the various state con-

The wording of the clause was a verbatim copy of

a prohibition in the English Bill of Rights of 1689.

"This discussion, and portions of the debsies of the state con-

ee ot tee fe Weenw v. United States, 217 US. 349,

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—44—

for petitioner's claim that the death penalty is uncon

tutional when carried out without unnecessary cry

as punishment for a serious offense such as murd

Former Justice Goldberg of this Court has no

with reference to this Court's treatment of the Bigh

Amendment's prohibition against cruel and unug

punishment: “

“Indeed, the clause has been substantially 4

cussed—either by members of the majority or ¢

dissent on the Court—on only ten occasions. Og

three decisions since the adoption of the Bill,

Rights have interfered with a government's choi

of punishments, and in only one of those we

five Justices willing to invoke the clause. . ,

(Footnotes omitted.) Goldberg & Dershowh

Declaring the Death Penalty Unconstitutional, §

Harv. L. Rev. 1773, 1777-78 (1970).

It was not until 1878 that this Court, in Wilkers

v. Utah, 99 U.S. 130, had occasion to discuss at a

length the meaning of the constitutional prohibitic

against cruel and unusual punishment. In that case th

Court upheld the mode of execution oe a

forbidden by the Constitution’s prohibition

cruel and unusual punishment, id., 134-35, noting th

—

we ee

“difficulty” in defining “the extent of the constitutional

provision” but the applicability of the provision to

“punishments of torture . . . and all others [involving]

unnecessary cruelty.” Id., 136.

In 1890, the Court denied an application for writ of

habeas corpus sought on an allegation that death by

electrocution constituted a cruel and unusual punish-

ment. In re Kemmler, 136 U.S. 436. The Court denied

the application on the ground that the Eighth Amend-

ment did not apply to state legislation, but added the

comment:

“Punishments are cruel when they involve torture

or a lingering death; but the punishment of death

is not cruel, within the meaning of that word as

used in the Constitution. It implies there something

inhuman and barbarous, something more than

the mere extinguishment of life.” (Emphasis sup-

plied.) Id., 447.

In Weems v. United States, 217 U.S. 349, the Court,

in 1910, for the first time overturned a punishment as

cruel and unusual. In that case the defendant, upon

conviction of falsifying an official document, had been

sentenced to fifteen years of hard and painful labor

to be served in wrist and ankle chains, with attendant

life-long disabilities and a severe fine. Id., 358, 364-65.

The case arose under the Philippine Bill of Rights,

whose prohibition against the “infliction of cruel and

unusual punishment, was taken from the Constitution

of the United States and must have the same mean-

ing.” Id., 367.

The Court was not troubled by the circumstance that

the punishment was somewhat novel in the context of

the type of punishment to which the cruel and unusual

itations,

origins. Id., 377. The Court found the statute “cruel i

its excess of imprisonment and that which accompanie

and follows imprisonment. It is unusual in its char

acter. Its punishments come under the condemnaticr

of the bill of rights, both on account of their degre

and kind.” Ibid. ;

The 1947 case of Francis v. Resweber, 329 US

459, presented the issue whether a pending second elec

trocution of a condemned murderer, following an us

successful first attempt at execution, constituted cru

and unusual punishment. The Court rejected the claim

of unconstitutional punishment. In an opinion joined

by three other members of the Court, Justice Reed in

announcing the judgment of the Court discussed the

issue “under the assumption, but without so deciding,”

that a violation of the Eighth Amendment would be

violative of the Fourteenth Amendment's due proces

clause. Id., 462. The opinion concluded: ‘

“We find nothing in what took place here which

amounts to cruel and unusual punishment in th-

constitutional sense. . . . The traditional humanity

of modern Anglo-American law forbids the in-

fliction of unnecessary pain in the execution of the

death sentence. Prohibition against the wanton

infliction of pain has come into our law from the

Bill of Rights of 1688. The identical words appear

in our Eighth Amendment. The Fourteenth would

prohibit by its due process clause execution by a

state in a cruel manner... . )

“, . . The cruelty against which the Constitution

protects a convicted man is cruelty inherent in the

method of punishment, not the necessary suffer-

ing involved in any method employed to extinguish

life humanely. . . .” (Emphasis supplied.) Id.,

463-64.

The next occasion on which this Court examined

the scope of the Eighth Amendment’s prohibition

against cruel and unusual punishment was in 1958,

in the case of Trop v. Dulles, 356 U.S. 86, where Chief

Justice Warren, joined by three other members of the

Court, concluded that denationalization of a native-

born citizen for less than one day’s desertion frorr

military duty constituted unconstitutional punishment.

Justice Brennan found the enactment of such punish-

ment beyond the power of Congress to legislate, and

four justices rejected both of these theories and would

have upheld the statute upon which denationalization

was premised.

Chief Justice Warren’s opinion noted initially, “Since

wartime desertion is punishable by death, there can

be no argument that the penalty of denationalization

is excessive in relation to the gravity of the crime.”

Id., 99. Cf. Williams v. Oklahoma, 358 US. *

586-87.

While recognizing that the phrase cruel and unusual

punishment was not precise, the opinion clarified the

scope of the constitutional prohibition against such

punishment by stating, “Fines, imprisonment and eyeg

execution may be imposed depending upon the enor.

mity of the crime, but any technique outside the

bounds of these traditional penalties is constitutionally

suspect.” (Emphasis supplied.) Trop v. Dulles, supra

at 100. Thus the penalty in Weems was characterized

liane ial eet Meg aliensd mg

excessiveness and unusual in its character,” id., as was

the penalty in the case then before the Court. |

that the Eighth Amendment “must draw its meaning

from the evolving standards of decency that mark the

progress of a maturing society,” Chief Justice Warren

concluded that denationalization, under the circum.

stances before the Court, constituted “a form of punish

ment more primitive than torture.” Jd., 101. :

-. Significantly, Chief Justice Warren’s opinion stated:

“At the outset, let us put to one side the death

penalty as an index of the constitutional limit on

_ punishment. Whatever the arguments may. be

against capital punishment, both on mor

grounds and in terms of accomplishing the pur-

poses of punishment—and they are forceful—the

death penalty has been employed throughout our

history, and, in a day when it is still widely a-

cepted, it cannot be said to violate the constity

tional concept of cruelty. . . .” Id., 99.

Thus the opinion, while recognizing “forceful” legis.

lative arguments against the death penalty, rejected the

pa ee

constitutional argument against that form of punish-

ment. |

Any doubt whether the Eighth Amendment’s ban on

cruel and unusual punishment applies to the States,

through the operation of the Fourteenth Amendment,

was dispelled in 1962 by the decision in Robinson v.

California, 370 U.S. 660, invalidating punishment of

imprisonment imposed on the defendant by reason

of his being found to be addicted to narcotics.

The Court’s opinion focused not on the nature of

the punishment (ninety days in county jail), but on its

inappropriateness as applied to a status, that of being a

narcotic addict. Id., 667.7"

In 1968 this Court refused to extend its ruling in

Robinson to the punishment (by fine of $50) of a de-

fendant convicted of the crime of being intoxicated in

a public place, Powell v. Texas, 392 U.S. 514, the

plurality opinion of the Court distinguishing the punish-

ing of status, involved in Robinson, from the punishing

of the uncompelled act before the Court in Powell.

Id., 532-33.

If the decisions of this Court applying the cruel and

unusual punishment clause are susceptible of synthesiza-

tion into a consistent body of principles, the cases ap-

To be sure, imprisonment for ninety days is not, in the

dant, & paar either cruel or unusual. But

the question cannot be answered in the abstract. Summ -aae-don

in prison would be a cruel and unusual for the

‘crime’ of having a common cold.” (Em

“A punishment out of all

within the ban against ‘

[T]he principle that would deny power to exact capital punish-

ment for a petty crime would also deny power to

son by fine or im

plied.) Id., 676 (

punishmen

—50—

péar to stand for the following propositions. Punish.

ment will be held unconstitutional if it is both Cruel

and unusual either as (1) a punishment inh

cruel and inherently unusual in its form, or (2) a pun

ishment not inherently cruel and unusual but grossly

excessive as applied (a) in relation to the seriousness

of a particular criminal act or (b) to any status which

does not involve an uncompelled act.

Imposition of the death penalty for wilful homicide,

in the present case first degree murder, Clearly passes

muster under the foregoing principles. Execution by

means (such as the administration of lethal gas, here

involved) which do not cause unnecessary pain or suf

fering is not an inherently cruel and unusual form of

punishment.”

The method by which the punishment of death is

effected in California is commonly recognized as more

humane than the methods in use at the time the

Eighth Amendment was adopted and appears to be

frequently less cruel and painful than the death by

natural causes that comes eventually to us all.” And

the common use of the death penalty in this country,

from the seventeenth century to the present, as indicat

ed previously herein and at greater length in the pages

that follow, renders the supreme penalty anything but

“unusual.”

Assuming then the validity of the death penalty as a

form of punishment not intrinsically cruel and unusual

*8Francis v. Resweber, 329 U.S. 459, 463-64 (second at

tempt at electrocution); In re Kemmler, 136 U.S. 436, 447-49

(electrocution); Wilkerson v. Utah, 99 U.S. 130, 134-35 (shoot

ing); In re Anderson, 69 Cal. 2d 613, 629-32 [447 P.2d 117,

128-30] (1968) (lethal gas).

2°See People v. Daugherty, 40 Cal. 2d 876, 894-96 [256

P.2d 911, 922-23] (1953), cert. denied, 346 U.S. 827. Be

~it—

in its form, a remaining question is whether the penalty

is unconstitutional under the foregoing principles as

excessive in. its application to first degree murderers,

such as petitioner. The negative answer to this ques-

tion need not be belabored since petitioner’s offenses

indisputably involved overt criminal conduct rather than

status, and since, as petitioner concedes, if the death

penalty may constitutionally be imposed for any civil-

ian, peacetime crime, it can properly be imposed upon

petitioner for first degree murder. (Pet. Br. p. 5.)

B. Capital Punishment Is Widely Accepted and Used in Ameri-

of Decency” . :

Despite the relatively precise showing required by

this Court, under the principles previously discussed,

as justification for overturning an imposed punishment

as cruel and unusual, something this Court has done in

only three extreme situations in its history,’ petitioner

and amici have seized upon some of the language of the

plurality opinion in Trop v. Dulles, 356 U.S. 86, as

proof that that decision signaled the end of the right

of the people of the various States to: prescribe death

as the punishment for first degree murder.

Almost ignoring the fact that the opinion in ques-

tion went out of its way to recognize the continued

constitutional validity of the death penalty, id., 99,

petitioner prophesizes that the use of the words “evolv-

ing standards of decency that mark the progress of a

“Robinson v. California, 370 U.S. 660 (punishing of status

as narcotic addict); Trop v. Dulles, 356 U.S. 86 (punishment of

ionalization, opinion of four members of the Court); and

Weems v. United States, 217 U.S. 349 (punishment blatantly

cruel and unusual both in the severity of its form and in its

excessiveness in relation to the particular offense).

maturing society,” id., 101, sounded a talismanic death

knell of three hundred years of capital punishment in

this country. However, in all fairness to petitioner, ‘his

fixation with this phrase is understandable in view of

its providing the only arguable escape from the his

torical reality of capital punishment’s recognition as a

legitimate penalty, outside the scope of cruel and un

usual punishment, in the wording of the Constitution

and in the law that preceded and followed adoption

of that document and the Bill of Rights. i

In his attempt “to avoid the impact of this his

tory,”" petitioner has failed to demonstrate that any-

thing that has transpired in the last thirteen years has

impugned the validity of the observation, in 1958, that

the death penalty “in a day when it is still widely ac-

cepted . . . cannot be said to violate the constitutional

concept of cruelty.” Trop v. Dulles, 356 U.S. 86, 99

(plurality opinion of Warren, C.J.).

The history of capital punishment in this country,

and the deep-rooted origins of that form of punishment

in the religious and moral heritage of contemporary

Americans, provide clear indications that the death

penalty is no barbaric relic of the past.

The history of the death penalty is as old as the his

tory of man himself. Records of death as a punishment

ordered by the state go back to ancient China, As

syria and early Egypt (as far back as 1500 B.C.), and

the Greeks. The first record of capital punishment in

England is from 450 B.C. Laurence, A History of

Capital Punishment 1-2 (1932).

‘The reliance of some of amici on biblical references

and religious principles, in support of their assertion

*\McGautha v. California, 402 U.S. 183, 203.

hin

that the death penalty is immoral and unjustified, is

particularly inappropriate in light of the Old Testa-

ment’s repeated recognition of the death penalty as a

proper form of punishment. These references indicate a

clear distinction between the sin of an individual’s tak-

ing life and the right of the State to take the life of a

murderer for the protection of society. Thus the Sixth

Commandment, “Thou shalt not kill” (Holy Bible, Au-

thorized King James Version, Exodus 20:13), is preced-

ed by the admonition, “Whoso sheddeth man’s blood,

by man shall his blood be shed” (id., Genesis 9:6),

and followed by numerous other references justifying

the death penalty for murder,” including the decree,

“He that smiteth a man, so that he die, shall be surely

put to death.” (Id., Exodus 21:12.) The New Testa-

ment as well contains references to the death penalty

for murder.*

With reference to the Church’s attitude toward the

death penalty during the Middle Ages, a religious

scholar has written in a Catholic periodical published

in Los Angeles:

“[I]ndividual Popes, theologians and councils of

the Church have explicitly approved of it at dif-

cone periods of history.

“Pope Innocent the Third (1198-1216 A.D.)

. feiterated this right. ‘The secular power can

inflict the death penalty, the Pope remarked, ‘with-

out grievous sin.’ (Denzinger, Enchridion No.

425).

"Id., Leviticus 24:17, 21; Numbers 35: 16-18, 30-31; Deuter-

onomy "19:11-12.

*1d., St. Matthew 5:21-22, 26: 52; St. John 19:10-11; Acts

25:11; Romans 13:1-4; Revelation 13: 10.

213

STH

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—57—

ber 15, 1970, when the voters of the State of Illinois,

in conjunction with a vote on whether to ratify the new

constitution adopted by their constitutional convention,

were asked to ballot as to whether the death penalty

should be abolished in that jurisdiction. The following

referendum results with respect to the latter question

are probably a good indication of national sentiment

in view of Illinois’ position as a large State having sub-

TABLE B

December 1970 Tlinois Referendum on Whether

to Abolish the Death Penalty”’

Votes Percentages

676,302 35.7%

1,218,791 64.3%

1,895,093 100%

The large majority of persons convinced of the need

for capital punishment in America in recent years re-

fects a cross-section of the nation’s population.” At

the height of the unsuccessful campaign to abolish the

death penalty in California, in the late 1950's and

carly 1960's, a Committee to Oppose Abolition of Cap-

ital Punishment was formed “to include in our numbers

the vast majority of citizens who feel the abolition of

the death penalty cannot serve the better interests of

the California community.”” Undoubtedly retail

clerks, grocery and liquor store operators, pharmacists,

bank tellers, gas station attendants, and others who like

"Illinois Secretary of State,

nos and United States 13, 15 (1971).

"Los Angeles Times, Part I, p. 8 (Feb. 14, 1959).

favor of the death penalty, one of them a forme

chaplain at California’s Folsom Prison,“ and the 1967

biennial governing convention of the 2.8-milli

Lutheran Church Missouri Synod adopted a resolution

stating, “‘Capital punishment is in accord with the

Holy Scriptures and the Lutheran confessions.’ The

Associate Executive of the United Presbyterian Church

in the United States has written in favor of

punishment,” as have representatives of the Catholc

“Id., Part I, p. 20 (Dec. 18, 1969).

“Id., Part I, p. 1 ( 10, 1963); Id., Part 5 (jum

3, 1963). - mene the ae

—59

Church“ and noted contemporary scholars and phi-

losophers.“

ves. Father John V. Sheridan in The Tidings, supra at

9 (February 13, 1959),

“Eg, Jacques Barzun, Dean of Faculties and Provost of

ia U ,_in In Favor Punish-

Columbia o_o Barzun, In of Capital

in America (rev. ed. 1967)

vol. 31, no. 2 (Spring

hing

id., at 146, re-

New Leader, vol. 44 (April 3, 1961), at

“Los Angeles Times, Part I, p. 1 (September 15, 1971).

—H0—

nomic, and occupational groups, and indeed the pag

ponderance of public opinion is in favor of

the death penalty as one of the alternative

punishment available for serious offenses. i

Thus it is highly misleading for amicus curiae

selected portions of the transcript of a trial (in which

one of counsel for such amicus appeared as counsi

of record), without reference to any of the contray

testimony, in an effort to convey the impression that

the evidence at such proceedings establishes the gp

constitutionality of the death penalty. That

which was never before the state courts at trial or op

eectigaueinetening?s 0 oe

throughout the brief of amicus.”

Thus while respondent deems it imappropriae®

argue the evidence presented in that collateral proceed

ing,” the following information is conveyed in |

to correct the misimpression created by amicus.

addition to the ten defense witnesses who appeared

fore the trial court at the hearing to determine {

constitutionality of the death penalty, fifteen prosece

tion witnesses appeared and testified in Ys

capital punishment. These supporters of capital

ment included a Presbyterian minister (who as a fon

correctional officer at San Quentin had wi

ee ee ae ee

At . 89, 14, 15.10), 17-18(2.27), 19% *

(n.34), F-2a(on.3, 36), —— Vag pe 31, 35-37,

61) and the entire Appendix A to said brief (pp. la throw

58a).

arPearle Thorman, Los Angeles Seperoc Cont MAM

who overheard a criminal (unaware of the officer’s

identity) advise a cohort not to murder because there

was the risk of the death penalty, the wife of a grocery

store owner who heard a robber make a similar state-

ment to a cohort during the course of a holdup,

former president of the county medical association

whose colleague had a similar experience, and the

present warden of San Quentin Prison who testified

as to death row inmates receiving meals superior to

those given the general prison population, and regard-

ing other favorable aspects of the living arrangements

on death row, the general opinion i

The popular sentiment in favor of the death penalty

4$ @ necessary form of punishment is reflected in the

number of American jurisdictions retaining the supreme

penalty: the federal government, the District of Colum-

bia and forty-one of the fifty States (eight of which

— as

experimented for varying periods with abolition of the

death penalty, only to restore it, Delaware as recently

as 1961)." j

In California, at least, the introduction and defeat of

a bill to abolish the death penalty has become

almost annual ritual. Such a bill was again defeated

by the Legislature in 1970.” In contrast a new capital

offense was added to the California Penal Code ig

1970,” and bills are before the 1971 California Legisis

ture which would add additional capital offenses*

After extensive study, the staff of a California legis

tive committee has recommended that a revised pend

code retain capital punishment.” And two addition

federal capital offenses were enacted as recently %

1965 and 1961.” ;

3) Punishment 1930-1968 (August, 1969) at 30 (Table

“California Legislature, Final Calendar of Legislative

ness: Regular Session 1970, Assembly Final iD cal

See also People v. Love, 56 Cal.2d 720, 737-38 [366 P.

33, 42] (1961) (McComb, J., dissenting).

Assembly Bill 1525

to kidnap elected public officer

the Senate and sent to the Assembly

nile

It is ridiculous for petitioner and amici to focus

upon the small number of executions in recent years

as an indicator of declining popular acceptance of the

death penalty, when it is common knowledge that these

figures are the result of reversals and stays of execution

granted by state’ and federal courts, including this

Court, during the pendency of various legal challenges

to the death penalty made in cases such as Maxwell y.

Bishop, 398 U.S. 262; McGautha vy. California, 402

US. 183, and the case at bar.

A much more accurate barometer of the “evolving

standards of decency that mark the progress of a ma-

turing society” is the constant number of defend-

ants whom juries annually send to the nation’s prison

systems under sentence of death, as indicated in the fol-

lowing figures.

“Trop v. Dulles, 356

Warren, C.J.).

TABLE C

Number of Prisoners Received in Prison Under Death Sentens

California’ United Stateys

1970 36

1969 14

1968 27

1967

1966

1965

1964

1963

1962

1961

The foregoing figures with respect to the imposition

of capital punishment are hardly indicative of “ex.

treme contemporary rarity resulting from a demonstrat-

able historical movement which can only be interpreted

fairly as a mounting and today virtually universal te

pudiation.” (Pet. Br. p. 12.)

Respondent questions, and fails to perceive the rele

vancy of, petitioner’s assertion that “there is evident a

definite, continuing, long-term, accelerating, worldwide

California of Corrections, California Prisones

1968 (June, 1969), at 92 (Table 35) (the latest edition of this

lication available at the present time). The 1969 and i

are statistics from the files of the Department destined

for publication in the next two editions.

U.S. Bureau of Prisons, National Prisoner Statistics Bulle

tin: Capital Punishment 1930-1968 (August, 1969) at 12 (Tabk

4) (ih latest edition ofthis publication avaiable at the pro

time).

ali.

trend toward ending the use of the penalty of death.”

(Pet. Br. 4e.) That is a frail foundation upon which

to postulate the unconstitutionality of the death pen-

alty, This Court’s interpretation in 1971 of what the

Framers of the Eighth Amendment had in mind in

1789 can hardly be affected by petitioner’s characteriza-

tion of Liechtenstein, Luxembourg, Nicaragua, and

Surinam as having de facto abolished the death penalty.

(Pet. Br. 2e.) Suffice it to say that (1) the total

number of nations which are abolitionist de jure or

de facto represents a distinct minority in the world

community,” (2) the conditions that lead a jurisdic-

tion to conclude that a particular punishment is or is

not required for the protection of its populace vary

from nation to nation,” as they vary from State to

State within our own federal republic, and (3) peti-

tioner has not pointed to any abolitionist nation which

has rejected the death penalty by judicial declaration

of unconstitutionality. In any event, “[o]n the evidence

6A trend mee gp a base, and movement from it. . . » Inspec-

tion of the ci Sipton cf the ner ne base and no move-

ment, only a description present legislative situation... . .

[I}f, as appears to be true, for a number of years the situation

has been relatively stable, . . . then it is hard to see how ‘evolv-

ing standards of - » » Can be said to be violated.”

Packer, Comment, M. the Punishment Fit the Crime, 77

Harv. L, Rev. 1071, 1073-74 (1964), .

“United Nations, and Social Af-

t of Economic

fairs, Capital Punishment 9-11, 83-85 (1968). Included

the nations retaining the death’ penalty are countries as civilized

legislature would have i ye impose fra oo standards

decency and iety on all peoples is country.” Los

Angeles Times, Part r p. 15 (Aug. 12, 1971).

available it does not appear that this is a case for due

process by head count.”

If indeed the “relevant Eighth Amendment toned

stone is the judgment of enlightened public opinion"

(Pet. Br. 24(n.40)), then what more enlightened assem.

blage could there be than the twelve jurors in the

hundreds of pending capital cases who on the basis of

the evidence presented to them in court solemnly exer.

cised their judgment on the ultimate question whether

the defendant was “fit to live.”™ As this Court hay

recognized, “one of the most important functions any

jury can perform in making such a selection is to main

tain a link between contemporary community values

and the penal system.” Witherspoon v. Illinois, 39

U.S. 510, 519(n. 15). “In our criminal courts the jury

sits as the representative of the community; its voice

is that of the society against which the crime was com

mitted.” Williams v. New York, 337 U.S. 241, 253

(Murphy, J., dissenting).

The specter often raised of a wholesale bloodbath

in the event all of the 600 to 700 prisoners under sen

tence of death were to be executed in the coming year

is first of all irrelevant to a constitutional determina

tion of whether the States remain free to decree that

alternate punishment for murder. Also irrelevant in the

present context is whether it costs more to execute a

man than to keep him alive; and whether capital

cases have an adverse effect on our court system.

“Packer, supra, at 1074. “Of course it is true that ay

middle of ‘the nineteenth century the very considerable of

capital offenses in most j ictions had been cut down toa

much smaller number. (Citation.) But that movement appean

to have ended by about 1900.” Jd., 1073(n. 9.)

*“sWitherspoon v. Illinois, 391 U.S. 510, 521(n.20); People

v. Morse, 60 Cal. 2d 631, 647 [388 P.2d 33, 43] (1964). 7.

wenn:

Such considerations bear solely on the legislative de-

sirability of the death penalty. Secondly the specter of

mass execution is an unrealistic parade of horribles.

By way of example, only 25 of the 102 prisoners on

death row in California have had their judgments

of conviction imposing the death penalty affirmed by

the California Supreme Court; the remainder have yet

to have their cases reviewed on automatic appeal™

or instead are awaiting new trials on the issue of

penalty. California State Prison at San Quentin, Execu-

tion Data (September 1, 1971). Of those 25 a great

number have petitions for writ of certiorari pending in

addition to future clemency hearings” and issues

available upon which to base collateral proceedings’ in

the state and lower federal courts.

Respondent fails to comprehend how the length bf

the average inmate’s confinement on death row ‘can

render his ultimate execution cruel and unusual, par-

ticularly since part of the delay in carrying out the judg-

ment is occasioned by the States’ desire for a full and

adequate appellate review of the proceedings which led

“Cal. Pen. Code §1239 (providing for an automatic appeal

nace 1935). Under this section revies x6 Gn canmatic spied

may occur even con to the defendant’s wishes, yrs v.

Stanworth, 71 Cal. 2d 820, 832-35 [457 P.2d 889, 89 900]

Court considers itself bound to

defendant

consideration to commutation in a ital case while judicial

ceedings are pending. . . .” (Pet. Br. 40 (n.78)).

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Respondent submits that this assertion again st

@ matter for the consideration of a legislative body

not for a Court called upon to determine whethe

particular mode of punishment is constitutionally ,

hibited to the States. Assuming, as demonstrated in

preceding arguments, that petitioner's judgment .

sentence of death is neither cruel and unusual per

nor cruel and unusual in the mode in which it is

be carried out or in relation to petitioner's crime

Powell v. Texas, 392 US. 514, 565-66 (Fort

J., dissenting ).

Turning to the merits of petitioner's assertion, it

readily apparent that petitioner has grossly overstal

his case in concluding that there is absolutely no a

stantial evidence that the protection of society is furth

length

respondent does

SHUI Re an

fits fist: ir

ray i

32 ie if

(7a feat gous ih

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ed by the imposition of the death penalty for serious

SATII

itl ili a

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i es ee ee ee me ee ee a“ —

For reasons which will be set forth at greater

at the conclusion of this argument,

offenses. From his treatment of some of the studies that

have been made on this subject, it appears that petition-

et views it to be an established fact that the death

penalty accomplishes no legitimate social function.

(Pet. Br., App. H.)

not view its present task as encompassing conclusive

proof of the social utility of capital punishment. Aside

from the fact that such a showing can be, and has

been, more appropriately and effectively

the legislative arena, it is submitted that the burden,

if any, which respondent must assume in the judicial

setting of an attack on the constitutionality of the death

penalty, is only to demonstrate that there is in fact a

. decision in

, 238

California Penal

facilitate,

em Se

increase the risk

633, 636-37]

P.2d

ah In iil

ple ih HT

“(I}m deciding the question whether the accus

should be put to death or sentenced to imprisc

ment for life it is within their discretion alone

determine, each for himself, how far he will ;

cord weight to the considerations of the several ¢

jectives of punishment, of the deterrence of crin

of the protection of society, of the desirability

stern retribution, or of sympathy or clemency,

age, sex, human passion, ignorance or weakne:

sumptions concerning, or possible uncertaintj

292 executions

murder, 6

Tatoos Pec Ss }

on C

the J

Cong.,

State

971,

murder

and

duce the degree or class of the crime), of the pr

intoxication or provocation not sufficient to ;

or (if appropriate under the evidence, of illness |

‘i

Court in an opinion defining the awesome and comp

capital cases, were set forth by the California Supre,

task conferred upon the jury in such a case:

, 313,

, 402 US.

, 767-68 [306

, 337 US. 241,

quoted in McGautha v. California

183, 200-01.

P.2d 463, 474-75] (1957).