# Brief for Respondent — Aikens v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1529%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1972 - **Citation:** 406 U.S. 813 ## Text sige: FILED LE cOPY IN THE SEP 24 197) Supreme Court of the United 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 M4 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) ©) M4 91 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- 94 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." 62 262 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 57 52 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, 62 65 59 59 70 104 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) .................. 58 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 SY 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 at if i tt | i e3 “ if i : , FB Hi 8 5 g i EFe iit Pr i Se ; EE 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.) t Peti with two 3 13, 1965, thirteen days prior to the rape- Eaton, the county health department ult : ofl El 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 a 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 we —— 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. g + Fae 1 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, eS : PSsR SLE ES aT SBMS SERRE —~I7— appropriate to join in the following observation by Pro- fessor Packer: “The legislative judgment inherent in provisions for the death penalty may be open to question, but that hardly seems enough to make it impermis- sible. One may wonder whether a constitution that ‘does not enact Mr. Herbert Spencer’s Social Statics’ can fruitfully be thought of as enacting Mr. Thorsten Sellin on the death penalty.”* The studies upon which petitioner relies conclude that the death penalty exerts no discernable influence on the rate of homicides. The truism that one may prove almost anything with statistics is a circumstance that makes one particularly concerned, in a matter as fraught with strong feelings as the desirability of the death penalty, that the statistician be totally objective and free of bias.” Aside from the shadow which this caveat casts across the findings of non-deterrence, or more accurate- ly the absence of findings of deterrence, a question arises as to the efficacy of the statistical approach in an area as imbued with imponderables as the question of human motivation toward criminal conduct." So- cial and economic conditions, such as population pres- sure, unemployment rate, influx of racial and ethnic minorities, in addition to such factors as the efficacy of local law enforcement, climate and weather, and the number of attractive crime targets, must all play a sig- “Packer, supra at 1079-80 (footnote omitted). indicated nthe opinion: ice *, aatical approach are indicated in the opinion in Maxwell y. Bishop 398 F.2d 138 (8th Cir. 1968), vac’d, 398 U.S. 262. Trin Oe piitae, Deterrence and the Death Penalty, © J. Crim. L.C. & P.S. 141, 145-46 (1969). — PSEPgga sh igs falta fh lila i 7 fihtie Uy FU ia y 78 nificant role in determining the "i PU THPREH ES Hu Hie Hela wal is tikes E Hee i wes tibet hi Caeuh Pen at we ‘SHR urder increased 76 per 100 % in 1970 over 1 g : —79— up the perceptible deterrent effects of the death pen- alty which might appear in the antiseptic conditions of a social laboratory. A third objection to the statistical approach is that it measures the homicide rate in terms of the theoretical existence of the death penalty (i.e., existing statutes and judgments imposing the punishment of death) rather than in terms of the actual existence of the death pen- alty (i.e., executions carried out). During the previous decade in which the dramatic increase in murders was recorded, as indicated in the preceding footnote, while juries continued at a relatively stable rate to fix the penalty at death” the annual number of executions in the United States dwindled from 56 to 0.” In this context respondent concurs in petitioner’s apparent view (Pet. Br. 6h-7h) that the death penalty would be an even greater deterrent were it not for the inordi- nate delay existing in the courts today which precludes the application of swift punishment to the offender. Interestingly enough, the homicide rate in California was relatively stable from 1953 to 1963, alternating between 3.3 and 4.0 per 100,000 population. In 1963, the year of the last execution except for the one in 1967, the rate was 3.8. The rate has since climbed to 6.0 in 1968 and 6.9 in 1969.” A fourth possible flaw in the statistical approach arises from the vast majority of the States having the eS *U.S. Bureau of Prisons, National Prisoner Statistics Bul- letin: Capital Punishment 1930-1968 (August, 1969) at m (Table 4). See Table C, infra, p. 64. Id.,7 (Table 1). “California Department of Corrections, Executions in fornia 1943 through 1963 ( II) (1965); Bureau of Criminal Statistics, and fornia—1969 (Table II-1) 52 (1970). death penalty and therefore the possibility arising: a substantial portion of the population of a State having the death penalty might not be fully ay of the latter fact. Last, and perhaps most significant, is the fact. ee ee eC of the United States days of this state the apprehension and hanging of cattle rustlers reduced, and almost stopped, the “(c) In the early history of San Francisco, law enforcement broke down and chaotic conditions prevailed. A group of citizens, known as the Vigilantes, undertook to restore order. To do this, reason for the restoration of order. a “(d) Any prosecuting attorney or criminal de- fense attorney or any trial judge who has sat for a substantial period in a department of the superior court devoted to the trial of felony cases knows ibe bi Department. .. . un He ul = reek yi fii ie mission of armed robbery, cach year saves the lives of scores, if not hundreds of victims of such crimes, cannot I think, reasonably be doubted by nla mnereniton-cras : é s Be g : % & que Br fl ial id ue Taal att ; - os He a a a ee ELH rat Teh me ‘lth aes aelit, rie : 7 I: Pa roti welbilbin story: ‘I used a toy gun [or a simulated gun or a gun in which the firing pin or hammer had been extracted or damaged] because I didn’t want my neck stretched.’ (The penalty, at the time referred to, was hanging; death by lethal gas was sub- stituted in 1941,)” (Footnotes omitted.). People v. Love, 56 Cal. 2d 720, 744 [336 P.2d 33, 46-47] (1961) (Schauer, J., dissent- ing). Numerous other incidents reflecting the deterrent at 335-39 (1953), including instances in which a mur- derer deliberately chose a jurisdiction not having the death penalty as the site of his crime in order to escape capital punishment. Jd., 337-38. oe! Another source notes that shortly before California’s last execution, a liquor store owner was attacked by a pocket, and when asked by Officers why an ex- convict with everything to lose ne oe * od gy be ied, ‘If 1 used a real gun and shot someone, I arson, ’ , lascivious acts upon a rw * 7440.1) 1336 Pod at 46) knife-wielding assailant who told him, “‘I’m going # kill you’” but was deterred when his intended victim replied, “ “You may kill me, but you will go to the gas chamber.’ ”” A recent study conducted by the Los Angeles Police Department confirms the continued validity of the fore. going conclusions, which are drawn from innumerable incidents experienced by those whose contact with crim. inals is real and direct rather than merely academic.” This study, embodied in a 62-page report, was cop ducted between December 21, 1970, and February 4 1971, and involved the interviewing of 316 arrestegs, Los Angeles Police Department, Detective Bureau, Ad ministrative Analysis Section, A Study by the Los Angeles Police Department on Capital Punishment 3 (February, 1971). Unarmed suspects were asked why they did not arm themselves, and armed suspects who did not use their weapons were asked why they did not. Id., 61. Of the 316 persons interviewed, 217 denied their crime or refused a statement, primarily out of a desire not to jeopardize their case. Id., 11. The positive statements made by the remaining 99 are clas sified as follows. *"District Attorneys’ and County Counsels’ Association of — California, Official Position on Capital Punishment 1 (Septem ber 2, 1971), quoting the Sacramento Bee, May 5, 1967. This is not to imply that all those whose experience with the criminal world is purely academic are dubious of the deter rent effect of the death penalty. See, e.g., Van Den Haag, On Deterrence and the Death Penalty, 60 J. Crim. L.C. & ms 141 (June, 1969). —- TABLE D Les Angeles Police Department Study of the Deterrent Effect of the Death Penalty, February, 1971° . Deterred by fear of death penalty from cafrying weapon or operative weapon 50 (50.5%) . Unaffected by death penalty because ; it was no longer being enforced 7 (71.07%) . Undeterred by death penalty, would kill whether it was enforced or not 10 (10.1%) . Unaffected by death penalty because they would not carry weapon in any event, primarily out of fear of being injured themselves or of injuring someone else 32 (32.3%) The conclusions drawn from the study are as fol- lows: “I. The adoption of an effectively enforced death penalty system is a deterrent in the pre- vention of homicides. II. Though the death penalty has not been removed from the statutes in Cali- fornia, many suspects believe in reality that no death penalty exists as it is not being enforced. III. Some suspects, while realizing that the Cali- fornia death penalty exists in name only, disclose that the certainty of an executed death penalty sentence would deter them from being armied while committing crimes.” Id., 2. “Los Angeles Police Department, Detective Bureau, Ad- ministrative Analysis Section, A Study by the Los Angeles Police Department on Capital Punishment 11 (February, 1971). The report also notes, “If this study contained only one and not the 50 documented cases supporting the fact that the death penalty is a deterrent, there should be no question of its retention and enforcement, h 1970 in the City of Los Angeles, 394 innocent péople were victims of an unlawful execution without the right of due process of law.” Id., 1. _ On the basis of objective criteria, the ol compiled and selected 25 case histories from the 99 individuals who made positive statements. Of the 25 arrestecs, 16 were under arrest for robbery, 4 for bur. glary, 3 for felonious assault, and 2 for rape; and 10 were armed when arrested while 15 were not. Id, 8. The time elapsed between arrest and interview ranged from 1 to 5 days and averaged 2 days.’” ld stactusion of cases from ditiecent exces cf the city ie clude various types of crimes, juveniles and adults, suspects hav. ing as varied ethnic, religious, and economic ; selection of cases so that no investigator rain te kato selection of cases from various ine th pts Aprons 7 of the Boge tective bureau were asked to participate in rt &. the 25, 23 were male adults and 2 were O were ‘Caucasian, 13 were Negro, and 2 ‘aiken from 16 yours’ $040 Seite tae ge Be Saateueanes: srotes Sak f..10 th, comeing 9 1 to misdemeanor arrests from 0 to 1 yon Mean and 3.9 misdemeanor arrests; and aE 4f eee sui il HABA Hoe vias 434. a if : ae eid iy aaj] rel 7 aHE HER § 3 2g) “a 83m G5 38 - 2 jal ede Beer enema it aa (Pepa iiiloaltleelissteg dies padi Respondent submits that such data cannot be dismissed. as “anecdotal impressions of law enforge: ment” (Pet. Br. lh, 8h) and that instead persuasive proof that the existence of > ment, even though unenforced today, acts to deter g substantial number of criminals from making the pre meditated decision to arm themselves with operable weapons or from using such weapons to kill their vic tims. Undoubtedly numerous citizens are alive today only because of the existence of the death penalty, and other victims probably would not have been exe cuted had some criminals not held the accurate belief that the death penalty is not being enforced today. These circumstances lead one to what is perhaps the most compelling justification for the death penalty. That is that the armed robber or armed burglar, com- monly faced with a maximum term of life imprison ment™ if apprehended, might well consider himself foolish not to kill his victims or other witnesses if by doing so he were to risk only the same penalty, life imprisonment, for murder, while increasing multifold his chances of avoiding apprehension. The armed rob ber of a one-man liquor store operation would not let our views of the dignity of human life cause him to hestitate for a moment at killing the lonely figure are around to witness such an execution. The same applies to the willingness of the armed robber to kill a police officer in order to avoid apprehension and conviction, when without the death penalty the crim 14S¢e, e.g., Cal. Pen. Code §§ 213, 461, 671. Paes —$t-— jnal will risk no added punishment if he does away with his intended captor.’* This justification for the death penalty was judicial- . ly recognized in People v. Love, 56 Cal. 2d 720, 746 [366 P.2d 33, 48] (1961) (Schauer, J., dissenting): “[T]he robber can do one thing that will vastly decrease the risk of identification and conviction: he can eliminate the known witnesses—the victims he robs. . . . It cannot be validly disputed that the choice as to [what] he carries—a gun or what looks like a gun—is in case after case controlled solely by his respect for the death penalty. If the punishment he risks for robbery is to be imprison- ment—and only imprisonment, even if he elimi- nates the only witness—it would seem inevitable that the incentive to kill would be greatly in- creased. The greater chance of escaping any pun- ishment would, in the minds of some at least, out- weigh the slighter risk of having the term in- creased. Many a robber who would take the risk of a longer term would absolutely shun any plan which substituted death for imprisonment.” Justice Schauer concluded that abolition of the death penalty “would be tragically undesirable to the families of the innocent victims who would die violently as a result.” Id., 747. The California Legislature’s defeat of bills to abolish capital punishment has been predicated in part upon “See 4 Blackstone, Commentaries 18 (Tucker ed. 1803): but ai die niet” ta “Caton; inietorate Gan cS plcine’ teak : i te ee the —2—- precisely such evidence concerning the deterrent effect of the death penalty, including instances of felons delib. erately choosing jurisdictions not having the death pea. alty in which to commit their crimes. See Senate, Hearing Report and Testimony on Senate Bill No. 1, 1960 Second Extraordinary Session, Which Proposed to Abolish the Death Penalty in California and to Substitute Life Imprisonment Without Possi. bility of Parole 133-35, 149-54, 156, 161 (March 9, 1960), referred to in People v. Love, supra at 755-56 [366 P.2d at 813-14] (Schauer, J., and McComb, J, dissenting from denial of petition for rehearing). The latter opinion quotes a prominent defense attorney concurring in the conclusion that such evidence is per. suasive and observing, “‘ “Naturally, there can be no statistics produced to demonstrate how many murders were not committed because the would-be perpetrator feared the death penalty.”’” (Emphasis in the orig inal.) Id., 756 [336 P.2d at 814]. See also Robinson v. United States, 324 U.S. 282, 284. Respondent recognizes that the existence of capital punishment does not operate as a deterrent to all crim- inals. Similarly the British Royal Commission Con cluded: “Prima facie the penalty of death is likely to i a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing sta- tistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible.” Royal Commission on Capital Punishment 1949. 1953 Report, 24; see also supra at 274. 10¢See also Los Angeles Times, Part I, pp. 1, 24 (June:23, 1971). —93— “But it would be absurd to claim because it did not deter all it did not deter any.” (Emphasis in the original.) People v. Love, supra at. 745 [366 P.2d at 47] (Schauer, J., dissenting). The death penalty clearly does operate as a deterrent with respect to a siz- able segment of the criminal population, as previously demonstrated. And significantly it is this segment, the majority of whose crimes are committed for pecuni- ary gain, who commit the types of crimes that so often end up incurring the death penalty when life is taken in connection therewith. As is also indicated in the Appendix to this brief, the crimes of passion, which are rarely deterrable, incur the death penalty only under the most exceptional circumstances and consti- tute only a minute portion of the death sentences im- posed in California." “[AJll those who violate penal laws of any kind are by definition undeterred.” Powell v. Texas, 392 US. 514, 531 (plurality opinion of Marshall, J.). How- ever, we can never know the number of persons who For example, respondent is informed by the staff of the California State Prison at San Quentin that the crimes of four of the 98 men currently housed on that institution’s Row involve the killing of the defendant’s wife. Each of ee ee meen circumstances and only the last rien core Bhar to involve an e element of passion: (i) Perveler: a former ce officer net orb br gg ry ee ingly killed his the girlfriend’s husband; (2) Archerd: nmale nue, who killed > wate, s, some of them former wives, insulin injections motive of monetary gain; (3) Murphy: who hired another t the defendant's person to accos wife on a public road and murder her; (4 pee : who killed his common-law wife and was also convicted on a of assault with intent to commit murder upon another victim. one of the victims of the four women currently under sentence of death in California were husbands or lovers of the defendants. More than half of the persons executed since 1943 killed their victims during the course of a robbery or a sexual assault (This footnote is continued on next page) —94— we tery the death nay oh, rapa ent has demonstrated, they are many. That thie: geteny acer ian ahaa render it an ineffective, much less an “A fudge once eaid, "The death pecaity to% warning, just like a lighthouse throwing its beamy out to sea. We hear about shipwrecks, but we do not hear about the ships the lighthouse guide safely on their way. We do not have proof of th sumber'of ships it saves, but we do mot tear'as lighthouse down.” Hoover, Siditnents i Peres ot te Dadra alty, pape Rarer Sete Fgh ca 130, 131 (rev. ed. 1967). In short, there is substantial and highly persuasive evidence, founded upon hard facts and human @ perience, of the deterrent effect of the death penally, In concluding that the death penalty has no deterrest effect, the theoretical and statistical approach relied on | dd cit Ht —95— by petitioner “goes much too far on the basis of too little knowledge.” Powell v. Texas, 392 U.S. 514, 521 (plurality opinion of Marshall, J.). As Justice Mar- shall observed with general reference to the deterrent effect of criminal sanctions, “The long-standing and still raging debate over the validity of the deterrence justification for penal sanctions has not reached any sufficiently clear con- clusions to permit it to be said that such sanctions are ineffective in any particular context or for any particular group of people who are able to ap- preciate the consequences of their acts... .” Id., 531. Respondent submits that the foregoing statement has equal validity when applied specifically to the deterrent effect of the death penalty. Deterrence is not the only function of punishment 9 yy, cert. denied, 329 U.S. 790; People v. Purvis, 52.4 2d 871, 875 [346 P.2d 22, 24] (1959); People y. bert, 63 Cal. 2d 690, 702 [408 P.2d 365, (1965), vac’d 388 U.S. 263. See also People v. 2 Cal. 3d 205, 213 [466 P.2d 710, 715] (1 People v. St. Martin, 1 Cal. 3d 524, 529 [463 P24 390, 392] (1970); People v. Vaughn, 71 Cal. % 406, 412 [455 P.2d 122, 124] (1969); In re Cathey, 55 Cal. 2d 679, 685 [361 P.2d 426, 428] (1961); People v. Jensen, 43 Cal. 2d 572, 578 [275 P.24 25, 30] (1954). Testimony before a California legislative 37 (March 9, 1960); Los Angeles Times, Part I, p. ber 13, 1958). California Department of Corrections, fornia 1943 Through 1963 (Appendix V) (1965). 1184. (Appendix IV). —97 — victed murderer. For example, the defendant in People v. Hall, 199 Cal. 451, 458-59 (249 P. 859, 861] (1926), subsequent to his conviction of first degree murder and sentence to life imprisonment, escaped from San Quentin and thereafter committed another first degree murder. Sve also People v. Gilbert, supra; People v. Jensen, supra. The consequences of an unsuccessful attempt at escape can be just as fatal, as evidenced by the recent escape attempt, at the Cal- ifornia State Prison at San Quentin, of a life-term prisoner awaiting trial on a charge of murdering a correctional officer. His effort caused the death of three more correctional officers and two inmates at the hands of himself and other inmates, as well as his own death." When a prisoner under life sentence is brought to court for further proceedings, the inadequacy of such punishment as protection for society may again become very apparent, as was the case recently when three San Quentin prisoners serving life sentences unsuccess- fully attempted to escape from a county courthouse and in the process shot to death the presiding judge and wounded the prosecuting attorney and a juror.” Similarly the pendency of new court proceedings against one defendant, already under sentences of death arising from another case, recently provided the occasion for his cohorts to steal 140 firearms intended to be used in an armed assault on the courthouse in an attempt to liberate him.™ "Los Angeles Times, Part I, pp. 1, 24 (August 22, 1971). "41d, Part I, p. 1 (August 8, 1970). "Id. Part I, p. 3 (August 25, 1971). 5Los Angeles Times, Part I, p. 3 (January 31, 1967). ay oe me ty prc eng Air ter gg pone mates in a day at a New York prison. Los Angeles Part I, p. 1 Reptember 14, 1971); id., Part 1 see ber 15, 971). ahd: "California Assembly, R of the Select Committee on Oe eee annie ora conclusion of the California Department of Corrections. Ibid. _ —90— TABLE E Homicides in California Prisons, 1965-1971, Committed by Adult Felons'!* Correctional Officers Inmates Killed Killed by Inmates by Other Inmates 1971 (Jan. 1 to Sept. 1) 12 1970 8 1969 15 1968 15 1967 G 1966 3 The chronology which follows provides one of the more graphic illustrations of the need for an enforced death penalty in coping with custodial homicides com- mitted by convicted murderers. The California Su- preme Court reversed the judgment of conviction which had imposed two death sentences on a defendant, on a rule of law that was totally novel to the California courts, to wit, that it would henceforth (but retroactive- ly) be deemed improper for a prosecutor or a trial judge to inform the jury of the fact that a defendant ee eee ee eee ee aa seven years imprisonment. (Cal. Pen. Code § 3046.) On retrial of the penalty issue, the jury imposed a life sentence on the murder charges. While in his cell awaiting formal sentencing, the defendant with a mat- tress cover garrotted a fellow prisoner on the other side of the cell bars, because the prisoner owed him some cigarettes. For the latter offense the defendant was tried by jury and sentenced to death, only to have the Cali- ——— ceo con a ‘These figures were obtained from the files of the Cali- dias Departs os of Corrections. Peat, 200m eA PPR the same day, reverse both cases.” “hag Respondent submits that the unique deceit and incapacitative effects of the death penalty are ap parent from the foregoing discussion. However, the con stitutionality of the death penalty, unlike a legi determination of its desirability, cannot turn upon whether the members of this Court or of some other body find the evidence supportive of the death penalty more persuasive than the evidence supportive of the abolition of that form of punishment. The issue raised by petitioner at most requires this Court to determine whether, as petitioner in essence contends, there is no substantial evidence upon which the Congress or th Legislatures of 41 States could reasonably conclude that the death penalty for certain serious offenses serves 4 legitimate social purpose. a Having shown hat he ined ver al evidence supportive of the legislative view that punishment is necessary for the protection of society® under the conditions presently existing, respondent be lieves that it has met its burden vis-a-vis this facet ot petitioner’s constitutional attack on the death is io 0 settled doctrine of constitutional Jaw thee i burden of proof is on one who challenges the com stitutionality of a statute, and that in the absence of a 119People v. Morse, 60 Cal. 2d 631 [388 eet (19 In re Morse, 70 Cal. 2d 702 Se ae cae 3) v. Morse, 70 Cal. 2d 711 1452. P.2d 607] 1968 397 US. 944. Skee icedie dor come text 12%In the sense in which both are expressions of need to protect the lives of its citizens, the state’s to ¢ ot Coes ee ee eae enemy on the battlefield and to the right of the to kill in defense of himself or others. 420, 425-26. Moreover, strong policy considerations, involving the balancing of the respective interests which petitioner and respondent seek to protect, dictate that the burden of proof rest upon petitioner. Compare the consequences of an incorrect decision upholding the death penalty with the consequences that would flow from an incorrect prohibition against the States’ employing that form of punishment. It seems so much more important to spare the lives of a substantial number of innocent citizens and law enforcement of- ficers who would be murdered but for the death penalty, than to spare the lives of some of our most vicious murderers. Undoubtedly the consequences of an incor- rect decision to prohibit the death penalty would be so much more undesirable in both social and moral terms,’ that this Court should certainly hesitate to overrule hundreds of years of law and human experi- ence upon the meager and speculative showing made by petitioner. is tnt sill Up steed: elt to Cheeta, Supreme Court having substantial trial experience,’ “Because of what my own eyes have seen and my ears have heard I cannot doubt the efficacy of the death penalty as a savior of the lives of victims of robbers, kidnapers, burglars, and crim- inals of similar dispositions. But if there were ™1See Van Den Haag, Deterrence and the Death Penalty, 60 J. Crim. L.C. & P.S, 141, 146-47 (1969). People v. Love, 56 Cal. 2d 720, 744 [366 P.2d 33, 47] (1961) ¢ (Schauer, J., dissenting). beaks —102— = doubt in my mind I should resolve it in favor ot protecting the innocent victims of the future rather than sparing the guilty killers of the past.” be Moreover, in the event this Court were to petitioner’s expansive and fluid interpretation of the Eighth Amendment, “|, it is difficult to see any limiting principle that would serve to prevent this Court from be coming, under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law, throughout the country” Powell v. Texas, 392 U.S. 514, 533 cual opinion of Marshall, J.). The adoption of petitioners approach might well saddle the States with the burden of having to justify various forms of non-capital punishment by establish ing that life imprisonment without possibility of parole more effectively serves the aims of punishment than life with possibility of parole, that life is more effective than a fixed or variable term of years, imprisonment more effective than county jail, county jail more effec tive than probation, and probation more effective than a fine. Respondent submits that in view of petitioner’s inabi! ity to make a clear showing that the death penalty serves no legitimate function, the federal Constitution leaves the People of the State of California free to de termine through their elected representatives that the protection of society under present conditions requires death as a form of punishment for certain serious of- fenses. 1287d., 747 (366 P.2d at 48]. it~. D, The Death Penalty Is Not Arbitrarily or Discrim- Poor, or the Uneducated in California; Prisoners Under Sentence of Death Constitute a Representa- tive Cross-Section of California’s Criminal Popula- Petitioner’s challenge to the constitutionality of- the death penalty rests in part upon his assertion that such punishment inevitably falls with an uneven hand upon certain less advantaged segments of our society. be Petitioner, amici, and the fellow abolitionists whose writings they cite, echo the familiar refrain that uni- versally the death penalty is arbitrarily and discrimina- torily imposed upon members of racial minorities, the poor, the uneducated, the mentally deficient, and the “friendless.” (Pet. Br, 51-54.) The foregoing has been so frequently mouthed as gospel truth, albeit without much of an attempt to sup- port it factually, that a challenge to such dogma may seem almost heretical. However, respondent has found that illuminating data drawn from the operation of California’s system of criminal justice effectively puts the lie to these blind assertions. The files of the 102 persons currently housed in the California prison system under sentence of death (3 of whom have penalty retrials pending), as well as the files of the 11 persons presently housed in county jail facilities awaiting penalty retrials, have been examined by counsel for respondent. Four of these persons are women, all of whom are Caucasian and in the state “Numerous safeguards protect the mentally deficient defend- ant at all on a in a capital case. See, e.g., Cal. Pen. Code §§ 190.1, 1026-27, 1368-70, 3700-06, 4800-06.. prison system. The 102 state prisoners are com prised of Caucasians (including Mexican-Americans and Puerto Ricans), Negroes, one Filipino, one American Indian, and one Arab, The 11 county prisoners im clude, in addition to Caucasians and Negroes, one By kimo, A comparison of the percentage of Negroes on death row in California with the percentage of Negroes indicated in other pertinent areas of the criminal proc. ess yields the following results indicative of the ab sence of racial bias in the imposition of the death peat alty in California. ga: 125See California State Prison at San Quentin, Execution Data (September 1, 1971). ise bs, comparieon ‘a. limited 10 Negroes nce thij: Sania Gia Tatipet miscrity group asd tes aly one toc wheal penal statistics are readily available. : ee TABLE F Race and the Imposition of the Death Penalty in California!" Caucasian Negro Other Prisoners Executed, All Offenses, 1930-1970 75.7% 18.2% 61% _ Prisoners Executed, Murder, 1930-1970 75.0% 18.6% 64% Under Sentence of Death, or Awaiting New Penalty Trial, All Offenses, September 7 1971 65.5% 25.7% 8.8% Received in Prison, Ist Degree Murder, 1970 60.7% 36.7% 2.6% Received in Prison, 2nd Degree Murder, 1970 55.8% 39.9% 4.3% Received in Prison, Non- Vehicular Manslaughter, 1970 55.5% 43.8% 0.7% Charged in Superior Court with Homicide, 1969 59.2% 38.1% 2.7% Received in Prison, All Offenses, 1970 69.0% 29.3% 1.7% —_e- “Compiled from data (to be published) in California De- partment of Corrections, California Prisoners—1970 (Table 18A) (197-); California Bureau of Criminal Statistics, Crime and Delinquency in California—1969 (Table VI-9) 117 (1970); US. Bureau of Prisons, National Prisoner Statistics Bulletin. Capital Punishment 1930-1968 (August, 1969) at 11 (Table me Ut ER ilies rs g- :i ib 4 Hi el oh : fi Bast S28 gia Hee] faa a i 8245200473 ah ures satan ft i ul ye ce ie pee eer mAbs hey maf ies a as S ae eee raped me tional arguments against the orig = ere one 963 (Table First-Degree Mur- Ag 1367, noes Pail ty tH HHH Sie iH |! Hi HaHE —lll— of skilled and unskilled occupations. One study in- dicates that the income level of those persons sentenced to death for murder, as well as of those actually exe- cuted, is higher than that of the persons who received a sentence of life imprisonment for first degree mur- der.” Data on the education of California prisoners under sentence of death or awaiting new penalty trials is available in the files of all but five cases and indicates a median (and average) education of 10th grade.“ Seven individuals have in excess of a 12th grade edu- cation. death penalty is imposed. Although figures on the actual educational attainment of prisoners not under death sentence is unavailable, it is interesting to note that in California “the median grade achievement scores of the male felons newly received from court have been at the eighth grade level.”** Respondent’s examination of the files disclosed that only fragmentary 1.Q. data are available, mainly be cause a large number of prisoners refuse to be tested, California Department of Corrections, Execu- a 1943 eee (Table 5) (1965), in- Go pales coved eee ts ties eee ™ California sapertmnent of Corrections, California Prison- 1 ors—1968, 36 ( ). —112— but that such data ranged from a low of 70 LQ. “4 individuals) to a high of 136 (two individuals): level of California prisoners executed between 194) 1963 (only one prisoner has been executed in { State since 1963) indicates that, in the 128 cases (out of the total 158) in which data was available, the yas majority (80.4% ) came within the range of normal in telligence level with 8.6% borderline and 2.4% deleo tive, and 7.0% superior and 1.6% very superior.“ _ Petitioner’s attack on the manner in which juries decide which murder defendants are to receive the death penalty was in essence answered by this Courts opinion in McGautha v. California, 402 U.S. 183, and respondent will add only the observation that every one of the capital cases reviewed by the California Supreme Court since 1965 indicates the presence of at least one aggravating circumstance that would call for the death penalty under the standards of the Mode Department of Corrections, Executions 943 Through 1963 (Table 6) (1965). See also € information Wihtawa Sse =. ~ = sie ters. (R. 4604.) | ‘ae Petitioner received an abundance of due Z excess of anything required by the Constitution. Two attorneys (whose competence the court recognized) were appointed to represent him, a third was appointed to consult with him on a limited basis, and $1850,00 was allowed defense counsel as expenditures for im vestigation, psychiatric diagnosis, and medical testy, Also granted were petitioner’s motions for discovery of the prosecution’s evidence.’ Yet the defense was unable to produce any evidence indicating insanity or diminished mental capacity on petitioner’s part. a Only a wealthy man could have afforded such s trial which, excluding pretrial and sentencing proceed ings, extended with some interruptions from November 24, 1965, to March 16, 1966. (R., Cl. Tr. Il, pp 115, 274.) And can it for a moment be imagined that professionally employed, these circumstances would have caused the trier of fact to sentence petitioner ts only life imprisonment in the face of petitioner's un repentant attitude toward three brutal slayings and an assortment of other violent offenses? Particularly signifi- cant is petitioner’s callous bragging to other inmates about the murders and petitioner’s statement, while awaiting trial on the present charges, to a fellow inmate, that “if they can’t get him out of that county jail, he was going to kill someone else.” (R. 1133.) This demon cemies te “waity ‘of the conchesion, eached aie “s(R., Cl. Tr. Lop. 4.6, 20; C2. Te I, pp. 115, 269-10, Cl. Tr. Ill, pp. 3, 19; R. 3373 Sstery ke: a Screaup es » pe SFs_s_| CONCLUSION an era characterized by rising crime rates, mass gs, inmate homicides, revolutionary bombings of ¢ buildings, and the assassination of _ politica] rs and law enforcement officers, it would be y inappropriate for a legislature to contravene the of the people by abolishing capital punishment, one for this Court under the aegis of the Bighth re also Maxwell v. Bishop, 398 F.2d 138, 141 (8th Cir. _ vac’d, 398 U.S. 262. : he number of law enforcement officers murdered in the States rose from 37 in 1961 to 100 in 1970. Federal 3 ee Uniform Crime Reports—1970, 44 st 31, 1971. teers : 24 —118— Amendment to decree that this form of punishment; expressly sanctioned by the wording of the Constity: Boa snd along line’of decisions by this Court, is'ame forbidden to the people of the various States. 4g, A justice of the California Supreme Court ong noted, a “Probably all of us who have thought on the sub. ject—and particularly those of us who have some re. sponsibility in these cases (even as remote as it is at the appellate level)—devoutly wish that the death penalty were no longer necessary. But we have not yet reached the state which Sir Thomas More envisioned .[of] a Utopian government.”"™ As Justice Harlan stated for the Court in McGautha v. California, 402 U.S. 183, the Court’s “function is not to impose on the States, ex cathedra, what might seem to us a better system for dealing with capital cases, Rather, it is to decide whether the Federal Constitution proscribes the present procedures . . . in these cases,” Id., 195-196. “[T]he question for decision is not whether we personally approve the procedures followed . » . The question is whether those procedures fall be- low the minimum level the Fourteenth Amendment will tolerate.” Spencer v. Texas, 385 U.S. 554, 569 (Stew- art, J., concurring. ) Respondent earnestly maintains that nothing has happened in the 180-year history of the Constitution, or in the 300-year history of the imposition of capital punishment in this nation, which can alter the fact of the Framers’. contemplation of the death penalty as a *1People v. Love, 56 Cal. 2d 720, 745 [366 P.2d 33, 47] (1961) (Schauer, J., dissenting). Deputy Attorney General of the State of California, Attorneys for Respondent. bes TABLE H. ie Defendants Under Sentence of Death entender deamenanmia snereihcsrenetag ied Writ Granted— Death Penalty, Death Penalty, Affirmed in or Both Writ or Both Total Entirety Set Aside ~ —S Denied Set Aside 1 : 567 50 25(50%) 25(50%) 0 4° 1 O71 60 19(32%) 41(68%) 0 15 1 ; Hi 110 44(40%) 66(60%) 0 19 CAPITAL CASES REVIEWED BY THE CALI- FORNIA SUPREME COURT BETWEEN SEP- TEMBER 1, 1965, AND SEPTEMBER 1, 1967 \. Direct Appeals Affirmed in Entirety People v. Jacobson, 63 Cal. 2d 319 (1965) [405 eos v, Oller 63. 2d 690, appears in one Gok eee ee ‘enh pansdty Gat ee one count imposing dea’ ty was reversed ad ano’ such count affirmed. stern peng i ble are collected below, with refere Set et ee hich felony under the felony-murder rule, formed the basis f cing the murder in the first degree. Other at, the eeination res of the offense particularly pertinent to the | penalty are also indicated. In roximately 5 ty trial was waived and the issue of penalty Fin thay court. The vast majority of these 129 cases faveties the Cimiat ee st-degree murder, and the remaining few involve the offenses for gain with bodily harm or assault with a a deadly pon OF or with oe oy great Code, tg Bish my sellin —drowning of 21-month-old child; commuted by Gover. nor in 1966); People v. Cotter, 63 Cal. 2d 386 (1965) [405 P. 2d 862] (robbery; commuted by Governor in 1966); People v. Mathis, 63 Cal. 2d 416 (1965) [406 P. 2d 65] (robbery); People v. Gilbert,” 63 Cal, 2d 690 (1965) [408 P. 2d 365], vac’d, 388 US, 263 (robbery, victim police officer); People v. Smith, 63 Cal. 24 779 (1966) [409 P. 2d 222] (burglary, double murder, both victims police officers); People v. Mitchell, 63 Cal. 2d 805 (1966) [409 P. 2d 211] (robbery, victim police officer) [defendant sole person to be executed in California from 1964 to the present}; People v. La Vergne, 64 Cal. 2d 265 (1966) (411 P. 2d 309] (robbery); People v. Anderson, 64 Cal 2d 633 (1966) [414 P. 2d 366] (robbery, and attempt to kill two police officers and a fourth victim); People v. Talbot, 64 Cal. 2d 691 (1966) [414 P. 24 633} (robbery, mutilation); People v. Reeves, 64 Cal. 4 766 (1966) [415 P. 2d 35] (robbery, and attempt to murder a second victim, court trial); People v. Seiterle, 65 Cal. 2d 333 (1966) [420 P. 2d 217] (robbery, double murder); People v. Roberts, 65 Cal. 2d 514 (1966) [421 P. 2d 420] (robbery); People v. Thomas, 65 Cal. 24 698 (1967) [423 P. 2d 233] (arson and exceptional heinousness—molotov cocktail thrown into bedroom of three-year-old victim; commuted by Gover- nor in 1967); People v. Tahl, 65 Cal. 24 719 (1967) [423 P. 2d 246] (robbery, double murder, subsequent murder, subsequent attempt to kill fourth person, and statement of intention to kill fifth person); People v. Saterfield, 65 Cal. 2d 752 (1967) [423 P. 2d 266} ‘thes tion); People v. Arguello, 65 Cal. 2d 768 (1967) [423 P. 2d 202] (robbery, exceptional heinousness— 82-year-old victim beaten to death with brick and ham- met); People v. Hillery, 65 Cal. 24 795 (1967) [423 P. 2d 208) (rape of 15-year-old victim); People vy, Sanchez, 65 Cal. 2d 814 (1967) [423 P. 24 800) (murder of civilian prison employee by prisoner serving life sentence); People v. Eli, 66 Cal. 24 63 (1967) [424 P. 2d 356] (rape); People v. Lookadoo, 66 Cal. 2d 307 (1967) [425 P. 24 208) (robbery and excep- tional heinousness—setting live victim on fire with burning gasoline, court trial; commuted by Governor in 1966); People v. Hines, 66 Cal. 24 348 (1967) [425 P. 2d 557} (robbery); People v. Hill & Saunders, 66 Cal. 2d 536 (1967) (426 P. 24 908] (robbery, second murder attempted, two capital defendants); People v. Modesto, 66 Cal. 24 695 (1967) [427 P. 24 788} (double murder, exceptional B. Direct Appeals Reversed as to Death Penalty, Con- viction, or Both People v. Anderson, 63 Cal. 24 351 (1965) [406 P. 24 43] (premeditation, sexual acts upon ten-year old female victim); People vy. Price, 63 Cal. 24 370 (1965) [406 P. 24 55} (robbery, double murder, both my” ee victims police officers); People v. Polk & Fe Cal. 2d 443 (1965) [406 P. 2d 641] (robbery, hein ous mutilation of victim, and evidence of [ Luker, 63 Cal. 24 464 (1965) [407 P. 2d bery); People v. Stockman, 63 Cal. 24 494 [407 . Arguelio, 277) (robbery); People v 661) e Rw S8 E ES S ( : : i capital defendants); People v. Treloar, 64 Cal. 24 Ai (1966) [410 P. 2d 620] (robbery); People v. Ford, 65 Cal. 2d 41 (1966) [416 P. 2d 132] (robbery, premeditation, victim police officer); People v. Butler, 65 Cal. 24d 569 (1967) [421 P. 24 703] (robbery); People v. Goedecke, 65 Cal. 24 850 (1967) [42 P. 24 777] (premeditation, quadruple murder); Peo ple v. Nicolaus, 65 Cal. 2d 866 (1967) [423 P. 2% 787} (premeditation, triple murder); People v. Spe» cer, 66 Cal. 24 158 (1967) [424 P. 24 715] (rb bery, second murder attempted); People v. Griffin, @ Cal. 2d 459 (1967) [426 P. 2d 507] (rape); People v. Gonzales, 66 Cal. 2d 482 (1967) [426 P. 2d 929) (robbery, second murder attempted); People v. Pa nington, 66 Cal. 24 508 (1967) [426 P. 2d 942] (double murder and sexual acts upon a female murder victim under the age of fourteen); People v. Bandhaua, 66 Cal. 24 524 (1967) (426 P. 2d 900] (robbery); People v. Wilson, 66 Cal. 24 749 (1967) [427 P. 2% 820] (premeditation, double murder); People v. Va- num, 66 Cal. 2d 808 (1967) [427 P. 2d 772] (mb LL ‘Vee sa —_ hy pas ie . Writs Granted Setting Aside Death Penalty, Conviction, or Both In re Spencer, 63 Cal. 24 400 (1965) [406 P. 24 33] (robbery); In re Varnum, 63 Cal. 24 629 (1965) [408 P. 2d 97] (robbery); In re Pike, 66 Cal. 24 170 (1967) [424 P.2d 724] (robbery, victim police of. ficer); In re Shipp, 66 Cal. 24 721 [427 P. 2d 761} (robbery, victim killed for 10¢). A. Direct Appeals Affirmed in Entirety People v. Lara, 67 Cal. 22) (robbery); People y, (1968) [447 —4— Bf People v. Varnum, 70 Cal. 2d 480 (1969) [450 P24 553] (robbery); People v. Hill, 70 Cal. 2d 678 (1969) [452 P.2d 329] (robbery, rape, and sodomy upon preg nant victim); People v. McGuatha, 70 Cal. 2d 710 (1969) [452 P.2d 650] (robbery, prior murder); People v. Tolbert, 70 Cal. 24 790 (1969) [452 P. 2d 661} (rape and sodomy); People v. Coogler, 71 Cal. 2d 153 (1969) [454 P.2d 686] (robberies, double murders); People v. Nye, 71 Cal. 2d 356 (1969) [455 P.2d 395} (robbery and rape, exceptional heinousness—victim stabbed 37 times); People v. Mabry, 71 Cal. 2d 430 (1969) [455 P.2d 759] (burglary, victim police of ficer, several prior felony convictions including prison escape); People v. Miller, 71 Cal. 2d 459 (1969) [455 P.2d 377] (commission of sexual acts upon cight year-old victim); People v. Pike, 71 Cal. 2d 59% (1969) [455 P.2d 776] (robbery, victim police of ficer); People v. Robles, 71 Cal. 2d 924 (1969) [458 P.2d 67] (robbery and premeditation); People ¥. Floyd & Milton, 1 Cal. 34 694 (1970) [464 P.2d 64] (robbery of municipal bus driver, two capital defend ants); People v. King, 1 Cal. 3d 791 [463 P.2d 753] (robbery); People v. Terry, 2 Cal. 3d 362 (1970) [466 P.2d 961] (robbery and exceptional heinousnes —pharmacist stabbed 17 times with scissors and shot four times); People v. Archerd, 3 Cal. 3d 615 (1970) [477 P.2d 421] (murder of six persons by insulin i» jections. ) B. Direct Appeals Reversed as to Death Penalty, Conviction, or Both Peope v. Bassett, 69 Cal. 24 122 (1968) [443 P.2d 777] (premeditation, double murder); People ¥. McDowell, 69 Cal. 2d 737 (1968) [447 P.2d 97] —J— (robbery); People v. White, 69 Cal. 24 751 (1968) [446 P. 2d 993] (robbery and rape); People vy. Chacon & Noah, 69 Cal, 2d 765 (1968) [447 P.2d 106} (near-fatal assault by prisoners a 0 Cal. 2d 1 (1968) [447 P.2d 942] (premeditation, sexual acts upon ten-year-old female victim); People v. Risenhoov- a, 10 Cal. 2d 39 (1968) and premeditation); ital defendants); ’ 70 Cal. 2d 824 (1969) [452 P.2d 637] (rape and sodomy, committed after victim’s death, 107 stab wounds); People y. Graham & Shepard, 71 Cal. 2d 303 (1969) [455 P.2d 153] [Shephard only capital defendant] (rob- tery); People v. O’Brien, 71 Cal. 24 394 (1969) [456 P.2d 969] (robbery, victim police officer People v. Vaughn, 71 Cal. 2d 406 (1969) [455 Pz 122] (assault on prison guard by prisoner serving i sentence, defendant having previously killed three f low prisoners); People v. Quicke, 71 Cal 2d x (1969) [455 P.2d 787] (premeditation and exce tional heinousness—subsequent sexual intercourse wi victim’s corpse); People v. Williams, 71 Cal 2d 6} (1969) [456 P.2d 633] (robbery, strangulation People v. Ketchel, 71 Cal. 2d 635 (1969) [456 P2 660] (robbery, victim police officer); People | Schader, 71 Cal. 2d 761 (1969) [457 P.2d 841] (rol bery, victim police officer); People v. McClellan, 7 Cal. 2d 793 (1969) [457 P.2d 871] (robbery, doubl murder); People v. Stanworth, 71 Cal. 2d 820 (1969 [457 P.2d 889] (rape, double murder of 14 and 14 year-old girls, with numerous other prior and subs quent acts of rape, sexual perversion, and robbery) People v. Gardner, 71 Cal. 2d 843 (1969) [457 P2 575} (robbery); People v. Washington, 71 Cal. 2 1061 (1969) [458 P.2d 479] (arson, three othe murders attempted, exceptional heinousness — defend ant poured gasoline into children’s bedroom and lit it 17 month-old victim dying two weeks later); Peopl v. Daniels & Simmons, 71 Cal. 2d 1119 (1969) [45! P.2d 225] (three counts against two capital defendant of kidnaping for gain with bodily harm, each in th vicinity of a university campus and involving rape, an one involving sexual perversion; prior rapes and prio kidnaping); People v. Coleman, 71 Cal. 2d 1156 (1969) [459 P.2d 248] (robbery); People v. Wash ington, 71 Cal. 2d 1170 (1969) [459 P.2d 259} (robbery); People v. Brawley & Baker, 1 Cal. 3 277 (1969) [461 P.2d 361] (robbery, two capital a ae defendants); People v. Mosher, 1 Cal. 3d 379 (1969) [461 P.2d 659] (robbery and rape); People v. Wilson 1 Cal. 3d 431 (1969) [462 P.24 22] (premeditation, double murder); People v. St. Martin, 1 Cal. 34 524 (1970) [463 P.2d 390] (fatal assault on prisoner by another prisoner serving a life term for a previous murder and robbery); People y. Bandhauer, 1 Cal 3d 609 (1970) [463 P.2d 408] (robbery); People y. MacPherson, 2 Cal. 3d 109 (1970) [465 P.2d 17] (robbery); People v. Robles, 2 robbery, triple murder); People v. Tidwell (Robert), 3 Cal. 3d 82 (1970) [473 P.2d 762] (robbery, triple murder). C. Writs Denied After Issuance of Order to Show Cause None. D. Writs Granted Setting Aside Death Penalty, Conviction, or Both In re Anderson & Saterfield, 69 Cal. 2d 613 (1968) (447 P.2d 117] (as to Anderson: robbery, and at- tempt to kill two police officers and a fourth victim; as to Saterfield: premeditation, double murder, prior murder conviction); In re Mathis, 70 Cal. 2d 467 (1969) [450 P.2d 290] (robbery); In re Morse, 70 Cal. 2d 702 (1969) [452 P.24 601] (premeditation, double murder); In re Arguello, 71 Cal. 2d 13 (1969) [452 P.2d 921] ( robbery, exceptional heinousness— 82-year-old victim beaten to death with brick and hammer); In re Eli, 71 Cal. 2d 214 (1969) [454 P.24 337] (rape); In re Seiterle, 71 Cal. 2d 698 (1969) [456 P.2d 129] (robbery, double murder); In re Hillery, 71 Cal. 2d 857 (1969) [457 P.2d 565] (rape of 15-year-old victim); In re Hill & Saunders, 71 Cai, 2d 997 (1969) [458 P.2d 449] (robbery, second murder attempted, two capital defendants); In re Tah 1 Cal. 3d 122 (1969) [460 P.2d 449] (robbery, double murder, subsequent murder, subsequent attempt to kill fourth person, and statement of intention to kill fifth person); In re Kemp, 1 Cal. 3d 190 (1969) [460 P.2d 481] (rape, with rapes of two other victims): In re Lara, 1 Cal. 3d 486 (1969) [462 P.2d 380) (robbery); In re Roberts, 2 Cal. 3d 892 (1970) [471 P.2d 481] (robbery); In re Saunders, 2 Cal. 3d 1033 (1970) [472 P.2d 921] (robbery, second murder attempted). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1529%3A10. Public record. Not legal advice.