Petitioners Reply Brief — Coker v. Georgia

} MICHAEL NODAK, JR. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 75-5444

EHRLICH ANTHONY COKER,

Petitioner,

-V.-

STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

REPLY BRIEF FOR PETITIONER

E. KONTZ BENNETT, JR. JACK GREENBERG

DENNIS J. STRICKLAND, SR. JAMES M. NABRIT, III

Office of the Public LYNN WALKER

Defender PEGGY C. DAVIS

Ware County Courthouse . DAVID E. KENDALL

Waycross, Georgia 31501 LINDA GREENE

Suite 2030

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University

Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 75-5444

EHRLICH ANTHONY COKER,

Petitioner,

__

STATE OF GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

REPLY BRIEF OF PETITIONER

The sole purpose of this Reply Brief is to update

three factual representations contained in the Brief for

Petitioner:

(1) Pages 38-42 note that six States had enacted

statutes in the wake of Furman v. Georgia, 408 U.S. 238

(1972), authorizing capital punishment for any rape-like

offense, and that two of these statutes (North Carolina's

and Louisiana's) had been effectively invalidated by this

Court's decisions in Woodson v. North eadesinn, 49 L.Ed.2d

944 (1976), and Roberts v. Louisiana, 49 L.Ed.2d 974 (1976).

The Tennessee statute has since been invalidated under

Woodson and Roberts, see Collins v. State, Tenn. Sup. Ct.,

No. 63 (Hamblen Crim.) (Jan. 24, 1977), with the result that

only three American jurisdictions now provide the death

. penalty for any sex offense not resulting in the death of

the victim: Georgia, for rape; and Mississippi and Florida,

for certain rapes of young children. Not one of the new

capital punishment statutes enacted since July 2, 1976, has

Y/

authorized the death penalty for any kind of rape.

1/ 1976 Okla. Sess. Laws, c. 1, p. 627 (First Extraord.

Sess.) (July 23, 1976); La. Acts 1976, No. 316 (Aug. 1, 1976),

La. Acts 1976 No. 694 (Aug. 2, 1976); 1976 Ky. Acts, c. 15

(Extraord. Sess.) (Dec. 22, 1976); 1977 Wyo. Sess. Laws, c.

122 (Feb. 28, 1977). In three other States, death penalty

legislation has passed both Houses of the Legislature and

awaits gubernatorial action; in none of these bills has the

death penalty been authorized for any kind of sex offense

not resulting in the death of the victim: N.J. S.B. 639

(passed Senate, Jan. 11, 1977; passed Assembly, Jan. 3l,

1977) (1977 Sess.); Va. H.B. 1329 (passed House of Delegates,

Feb. 10, 1977; passed Senate, Mar. 3, 1977) (1977 Assembly

Sess.); Md. S.B. 106 (passed Senate, Feb. 25, 1977), Md. H.B.

785 (favorable report, House of Delegates, Mar. ll, 1977)

(1977 Sess.).

(2) Page 43 and n.41 state that there are presently

five persons in the United States on death row for rape-like

offenses. The Supreme Court of Florida has since set aside

the sentences of two persons condemned in that State for

sexual battery of a child. See Purdy v. State, Fla. Sup. Ct.

No. 47074 (Feb. 3, 1977); Huckaby v. State, Fla. Sup. Ct. No.

47736 (Feb. 17, 1977). Three other death sentences for rape-

like offenses have come to our attention: State of Georgia v.

Donald Boyer, Chatham County (Ga.) Super. Ct. No. 23816 (death sentence

for rape imposed Dec. 18, 1975); State of Georgia v. Willie James

Hughes, Burke County (Ga.) Super.Ct. No. 1330 (death sentence for

rape imposed Dec. 1, 1976); State of Florida v. William Horace

Shue, Jr., Circuit Ct. for the Fifth Jud. Dist. in and for

Marion County (Fla.) No. 75-508 (death sentence for sexual

battery imposed Feb. 7, 1977; jury's advisory verdict had

recommended life imprisonment). Petitioner therefore now appears

to be one of six persons in this country now under sentence

2/

of death for such an offense.

2/ This group consists of petitioner, Messrs. Boyer, Hughes,

and Shue, supra; John Wallace Eberheart, No. 74-5174 (pending

in this Court on petition for certiorari); and John Wesley

Hooks, No. 74-5954 (pending in this Court on petition for

certiorari). See Brief for Petitioner at 43 n.4l, Brief for

Respondent at 20.

(3) Appendix B, at lb-3b, states that forty-two

reported rape cases arising under the 1973 capital punishment

statute have been reviewed by the Ceorgia Supreme Court. Since

the filing of the Brief for Petitioner, twenty-one more such

cases have been reported, none involving the imposition of the

3/

death penalty.

3/ Long v. State, 237 Ga. 110, 227 S.E.2d 22 (1976); Marks,

Head, Wright & Kemp v. State, 237 Ga. 277, 227 S.E.2d 334 (1976);

Hinton & Newman v. State, 237 Ga. 376, 228 S.E.2d 790 (1976);

Williams v. State, 237 Ga. 399, 228 S.E.2d 806 (1976); Williams

v. State, 237 Ga. 425, 228 S.E.2d 822 (1976); Young v. State,

237 Ga. 470, 228 S.E.2d 856 (1976); Harris v. State, 237 Ga. 522,

228 S.E.2d 897 (1976) (an unnamed codefendant was also convicted

but did not appea); Wilson v. State, 237 Ga. 657, 229 S.E.2d

424 (1976); Thomas v. State, 237 Ga. 690, 229 S.E.2d 458 (1976);

Byrd v. State, 237 Ga. 781, 229 S.E.2d 631 (1976); Miller v.

State, 237 Ga. 823, 229 S.E.2d 648 (1976); Dorris v. State,

237 Ga. 837, 229 S.E.2d 638 (1976); Glover v. State, _Ga.__,

230 S.E.2d 293 (1976); Bailey v. State, _Ga.__, 230 S.E.2d 31l

(1976); Scott & Light v. State, _Ga.__, 230 S.E.2d 857 (1976);

Tiller v. State, _Ga.__, 230 S.E.2d 874 (1976). Welch, Swain

& Harris v. State (see Brief for Petitioner at 45, 2b n.4b) has

been reported and appears at 237 Ga. 665, 229 S.E.2d 390 (1976).

Imposition of the death penalty for rape is

unconstitutionally excessive and therefore violates

the Eighth Amendment.

Respectfully submitted,

E. KONTZ BENNETT, JR.

DENNIS J. STRICKLAND, SR.

Office of the Public Defender

Ware County Courthouse

Waycross, Georgia 31501

JACK GREENBERG

JAMES M. NABRIT, III

LYNN WALKER

PEGGY C. DAVIS

DAVID E. KENDALL

LINDA GREENE

Suite 2030

10 Columbus Circle

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER