Petition — BAYLESS v. OHIO (No. 76-6784)

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

| RECEIVED |

MAY 20 1977

IN THE OFFICE OF THE

SUPREME COURT, U

SUPREME COURT GF THE UNITED STATES

October Texm, 1976

~“*- 76-6784

CARL LAMONT BAYLESS,

Petitioner,

Respondent .

FOR WRIT

CERTIORARI TO

COURT GF

William R. Holland

912 Centran Building

Akron, Ohio 44308

ATTORNEY FOR PETITIONER

The N.A.A.C.P. Legal Defense

and Baucational Fund, Inc.

By:

Jack

Janes M. Nabrit, III

Petgy C. Davis

David F. Kendall

Joel Berger

10 Columbus Circle

New York, New York 10019

Anthony G. Ansterdan

Stanford University

School of Law

Stanford, California 94305

INDEX

Pege

Citation to Opinions eee 1

Se l

Questions PU enceceeeeeeeeeoce eee eee eee seueeeeeedeeeeeesneee 1

Constitutional and Statutory Provisions Involved........cccccsceeeeee 2

PE pn Sheeeeneheseeeeesesese Seeeeeeereneeenbenseeeeeeeeseseennnne 6

How the Pederal Questions Were Raised and Decided errr ll

Reasons for Granting the Writ

I. This Court Should Grant Certiorari to

Review the Constitutional Validity of

Petitioner's Sentence of Death. ......cccccccccceceeeeeeeees 12

A. PUREE coc heeeeneeeeeeceeeecececeeeeceeeéeceeesee 12

B. The Ohio Death Penalty Statutes Place

Unconstitutional Limitations Upon the

Consideration of Mitigating Ciroumstances.............. 12

c. Ohio Death Penalty Statutes Violate

‘if

all

eseeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 19

Dd.

Trial DUTY co ccccccccscccccscccscccsccese 31

Facts which Distinguish Those Who

May Live and Those Who Must Die... .. 6... c cece ccccceueees 31

II. Petitioner Should Not Be Put to Death

Without the Vote of the People Of Ohio. .... 6. ccc ccceeeeenes 34

III. ‘The Court Should Grant Certiorari to Consider

Grounds of udicial Pre-Trial PUBLICA ty... ccc cece eeeenes 35

IV. The Court Should Grant Certiorari to Consider

Whether the Exclusion for Cause of Eight

Veniremen on the Grounds of Their

Expressed Attitudes Toward the Death

Penalty Violated Petitioner's Rights

Under the Sixth or Pourteenth Amendment

to the Constitution of the United BeRASBc cccccecececseeeeces 44

Cane lusion Zt0=»tCUCtRHRRt RR A Raa aaa aa eee ee eee eee eee eee eee ee ee ee eee Pee eee eee ee 53

Adame v. United States ex rel McCann, 317

U.S. 269 (1942) wccccccccccccccccccccescceeececeseceseseeeceeees

Adams v. Washington, 403 U.S. 947 CLG7L) cccccccccccccccccecccecese

Aiken v. Washington, 403 U.S. 946 (UGTA) ccccccccccccccccccccececes

Anderson v. United States, 326 A. 2d 807

(C.A.D.C., 1974) a ccccccccccccccccccccceccceccccceceeeecoececees

Atkinson v. North Carolina, 403 U.S. 948 (1971)...ccceceeceeeeeees

Beck v. Washington, 369 U.S. 541 (1963).. ..ccccccsecceeseeeeeeeees

Bloom v. Tllinote, 99) U.S, 194 (19GB)... ccc cece wee w ween weneenee

Boulden v. Holman, 394 U.S. 478 (1968). ...cccccccceeeceeceeeeeeees

Boulden v. Holman, 394 U.S. 478 (1969). ..cccccccccccceeeeeeeeeeees

Chambers v. Florida, 309 U.S. 277 (1940)...sccccccsccccececceeeees

Childs v. North Carolina, 403 U.S. 948 (1971).....cccceeeceeeeeees

Davis v. Georgia, 97 S. Ct. 399 (1976)..ccccccccccceececeeeeeeeees

Duncan v. Louisiana, 391 U.S. 145 (1968). ...ccccccccceeeeeeeeeeees

Eotes v. Tens, 361 U.S. 532 (1965)..ccccccccccccccccscccccecseces

Vv. State, 12 Ohio Misc. 99, 41 Otiio Ops. Jf

2a 104 (c.P. Allen Cty., sot temcmetinaian Veta clabede ats

Funicello v. New Jersey, 403 U.S. 948 (1911) RE eg nee eer

Funicello v. New Jersey, 403 U.S. 948 CLGTL) wccccccccccccccccccces

Furman v. Georgia, 408 U.S. 238 (C1972) a ccccccccccccccccccccccccces

Gregg v. Georgia, 96 S. ct. 2909 (197GE) a cccccccccccccccccccccccese

21, 25n.

Groppi v. Wisconsin, 400 U.S. 505 (1971) cccccccccccccccccccccccess

Harris Vv. Texas, 403 U.S. 947 (1971). wccccccccccccccesccesccescces

In Re Hillery, 79 Cal. Rptr. 773, 457 P.2d 656

(Sup. Cct., 1969) cc ccccccsesecceseeeeeeseeeeeeeeeeeeeeseeeeeeeess

Irvin v. Dowd, 366 U.S. 717 (19G)) ccccccccceceeeneeeneneeennnnnnne

Jackson v. United States, 221 F. 2d 883 (C.A.D.A., 1955) ...eeeeees

Jaggers v. Kentucky, 403 U.S. 946 (L971) .ccccceseeeeeeeeeeeeeeeens

Ladetto v. Massachusetts, 403 U.S. 947 (L971). cccccesseeeenseeeees

Marion v. Beto, 434 F. 24 29 (C.A. 5, L970) ccccceccnceneneeeneeees

Table of Cases (Continued)

Maxwell] Vv. Biship. 398 U.s. 262 (1969) ..cccccccccess

McElroy v. United States, 361 U.S. 249 (1960) . ccccccccccccccecsecccs

MoGautha Vv. California, 402 U.S. 183 (LOT L) .ccccccccccccssececsececs

Page

19n.15,

19,20,

2in. 23, 22

Mal laney Vv. Wilbur, 421 U.Ss. 684 (1978) cccccccccccccccccccccccecece

Proffitt v. Florida, 96 GS. Ct. 2960 (1976) ..cccccceccecseeeeennens

Quintrana v. Texas, 403 U.S. 947 (L971) cccccccccecneens

Rainsburger v. Foglaine, 360 F. 2d 783 (C.A. 9, 1967).....

Roberts v. Louisiana, 428 U.S. 325 (1976). cccccccccceeeeeeenneeeees

Segura Vv. Patterson, 403 U.S. 945 (1971) cc cccccccccccceees

Segura v. Patterson, 403 U.S. 946 (1971)....66..

Sheppard v. Maxwell, 384 U.S. 333 (1966) e*eeeeeeeeeeeeeeeeeeeeeeeee

Snyder v. Massachusetts, 291 U.S. 97 (1934). ..cccccceeceseeneeeeees

Speck v. Tllionoig, 403 U.S. 946 (L9O7L)..ccccceeeees

Speiser v. Randall, 357 U.S. 513 (1958).........

State v. Bayless, 48 Ohio St. 24 73 (1976)... cccccccceeeeeeeeeenees

State v. Bell, 48 Ohio St. 2d 270 (1977). cccccccccecneeeeneeenneee

State v. Bdowards, 49 Ohio St. 2a 270 (1976) .ccccccccccccccccccccese

State Vv. Fairbanks, 32 Ohio St. 24 64 (1972) a cccccccccccccccccccese

State v. Hines, Ct. of Appeals, Fifth Ohio App.

Dist., Case Nos. CA-634-639. cccccccccccccccesesecsccseseeseseeee

State v. Laskey, 113 Ohio App. ad 91, aff'd.,

21 Ohio St. 2a 187 RRNA <9 RR OTERO ET

State v. Pruett, 403 U.S. 946 (L971) cccccccccccnsceeeeeenenneeneees

State v. Royster, 48 Ohio St. 2d 381 (1976). .cccccccccweeeneeneunne

State v. , 165 Ohio St. 293 (1956),

FeV'd., 384 U.S. 333 (1966) cc csceececcccccceeereneeeeeeensenees

State v. Watson, 28 Ohio St. 24 15 (LO7L) .ccccccccecceeeeneeeneeees

State v. Wigglesworth, 403 U.S. 947 (LO7L) .cccccccceceeeneeeenennee

12, 28,

29, 32

21, 22

Table of Cases (Continued)

Turner Vv. Texas, 403 U.S. 947 (1971) cccccccccccecceseeeeeeeeeeeeees

United States ex rel Bloeth v. Denno,

313 F. 2a 364 (C.A.2, 1963) cccccccccecceceeeeseeeseeeeeeeeeeeees

United States v. Bolden, 514 F. 24 1301 (C.A.D.C., L974) sceeeeeeees

United States v. DeVall, 462 F. 24 137 (C.A.5, 1972) .ecseseeeeeeene

United States v. Jackson, 390 U.G. S70. cccccccccceeeeeneeeeeeeeenee

United States v. Kramer, 289 F. 2d 909

(C.A. 2, BOGS « coccccccccccecccccccccccccceccecccceeUteccccccce

Wansley v. Slayton, 487 F. 24 90 (C.A. 4, L973) cccccccecceeeeeeeees

Williams v. New York, 337 U.S. 241 (1949) .cccccccceccseeeeeewnweens

Wilson v. Florida, 403 U.S. 947 (1971) .cccccccccceeeeeeneeeneeneene

Witherspoon v. Tllinois, 391 U.S. 510 (1968) ..cccccecceeeeeeeeenene

Woodson v. North Carolina, 428 U.S. 280 (1976) ...ccccccceeeeeeeeees

Woodwards v. Maxwell, 303 F. Supp. 690 (S.D. Ohio,

(1969) ccc cc cece cece ee eee eee eee eee OEE E EEE HEHEHE HEHEHE HEHEHE ES

25n. 28

ALA. H.B.

212 §7 (q).. **eeteeeeeeeeeeeeeeaeee eeeeeeeeeeeeeneeeeeee eee ee eeee

ALA. HB.

212 §§ (6) (a) and (D) cccccccc cece eeee sees eeeeeseseseseeeeees

AIA. H.B.

212 §7 (b) eeeeeee POPP URE P OREO OOOO OER E PEEP ER ESE SEE EES EEE EEE ESS,

ALA. H.B.

At a PERE EEEEELERETLETE EEE TELE

ARIZ. REV. STAT.

G19—454 (D) . cc ce ccues *eeeee eee eee eee ee ee eeeeeeeee

ARIZ. REV. STAT.

$$13-454(1) and (2) ccccccccceseseceeseseeeseseeeeseesesesess

ARIZ. REV. STAT.

§13-454 (PF) (L) ccccccccccccccccccceeseseseeeeseeseeseesessese

ARK. CODE

yh ees.) errr eee err rrr rr rrr rrr rrr rrr rrr rrr rrr rrr rrr

ARK. CODE

§§41-4711 (a) and (b).. eee eee eee eee eee eee eee eee eee eee eres

ARK. CODE

pe eral ) peer errr errr errr rrr rr rrr rr rrr rrr rrr reir

CAL. PENAL CODE

0) rrr rrr rr rrr rrr rire rr rrr ee ee

CONN. GEN. STAT.

G53 45 (4) (£) ccc cece cere eee eee eee eee eee eee EEE eee

CONN. GEN. STAT.

§53a~45 (4) (g) (1) arr (2) ccccccccccseeesessssseeseseseseesess

CONN GEN. STAT.

§53a~-45(f) (2) ccccccecccce eee ee sees sees esses ee seseeeseeeseses

ll DEL. CODE

§§636, BQO9 (1) ccc ccc cece eee eee eee eee eee EEE EEE Eee

FLA. STAT. ANN.

SIZL. LAL CT OD) oc cc ce eee eee Eee eee

FIA. STAT. ANN.

$921.141(7) +2 rrr rrr rrr rrrrrrrrrrrrrr rr rrr ras

GA. CODE

Yee ee) Oe S|.) Peeeeerrrrrrrrrrrrrrrrrrrrrrrrrrrrr rere eee

CA. CODE

§27-2534.1(b) ;o Prrrerrrrrrrrrrerrrerrrrrrrrrrrrrrr re eee,

TDAHO CODE

§$18-4003 and GOOG. cece cece cece eee esse ees eeeseeseeseseseeese

13n.1

Statutes Continued

ILL. REV. STAT.

ch. 38, §1005-8-1A........6- ee ee ee eee ee eee ee eee eeeeee een eeaeeeee

N.M. STAT. ANN.

a EE AG ge a aa e

N.Y. PENAL LAW

DEE eeeeevoucececceces eeneeeee 2 En Rea ae eeeeeeeneene .

OHIO REV. CODE

§§2929.04(A) (4) and (5)........... oe ccccccccccccs seccceces evece

OHIO REV. CODE

$2929.06 (B) (3) ccccccccccccccccccccccccese eeccccccccs erccccces °

OHIO REV. CODE

§2929.04(B)........-+.- eeccccece ececcccccccces eececccsces eocecce

OHTO REV. CODE

§2929.03(E)....... eececcccccces TrTTriTy eeccece rrrrrrrrr rrr oe

OHIO REV. CODE

SASSO GED) ccccccccccccccccccccccccccccccccceces ee cccccccccecs

OHIO REV. CODE

i (tiie tthe Cee esedesabecedooeseeosesceooseneiéa

OHIO REV. CODE

Di sche éeeSeSeseeseeceocesecoseoccececes eeeeeeee eeeeee

OHIO REV. CODE

§2903.03 eeeereee CTH HET HHH HEHEHE EEE HEHEHE EEE EEE EEE EEEE eee

OKLA. STAT. TIT.

2l, *} esenereeeeeee eee ee eee eeeee eer er ee ee eee eeeeeeeneeeee

R.I. GEN. LAWS ANN.

SEC. (5) (a), Col. S.B. No. 46(1974 SOSS.) see eeeeeeeeccecccccencces

SHC. 4(6) (a), Col. S.B. NO. 46. .ccccccccccccccccccccscccccccs ecccces

SEC. 4(4) (b), Col. S.B. No. 16............ TRITECTTTITT TTT TTT TTT Te

S.C. CODE

Ld - EPrrTTTTTrTrTrTrrrrrrrre ere ee ee eeee ee ee ee ee |

TENN. CODE ANN.

§§39-3702 and 39-2402..........205- TETTTITILIT ITE TT

49. U.S.C.

1473 (c) (6) (A).....- ee eccccccccce ee rcccccescccccccces eccccccccs

ILL. REV. STAT.

ch. 38, §1005-8-1A(3)..... eeeeee Seeeeeeeeeseses eCoecccccccccecce

IND. ANN. STAT.

§10-3041 (b)...... 22. eeeeee Co ee eer erecccsescccccceccoecs eeececes .

KY. CRIM. CODE

§§5.76(2) and 61(2)...........000.. eeccccccces eeccccccccccccecs

passim

13n.1

14n.3

13n.1

Statutes Continued

LA. REV. STAT. ANN

GB24230, WEsbl3d and W246. 2. ccccccccccccccccccccececcccce eee

MD. CODE ANN. ART.

27§413..... Corre ccc cccccccceccccccccescescccceeecccceees coe

MISS. CODE

§$97-3-65, 97—3—21 amd 97-39-19 (2) . .cccccccccccccccccece ccoce

MODEL PENAL CODE

§201.6 (Proposed Official Draft, 1962).......ccccccccees ocee

MONT. REV. CODES ANN.

$945 10S (1) .cccccccccccccccccccccccccccsccccccccccccccees oe

MONT. REV. CODES ANN.

G94—-5-105 (1) () oc cccccccccccccccccccccccccccccccccccecess eee

NASH REV. CODE

9.49.030, Initiative Measure No. 316.........cceeecececcees °

NEB. REV. STAT.

ees Ci) Cee. un ecceuneiennaeedaenddes

NEB. REV. STAT.

§§92-2523(2) (b) and (c)..........2.6- eecccccccccs coccccces oe

NEB. REV. STAT.

§29-2523(2) (g).....-+--- POISE TORE OTR Vor ae Fee ee Ae Ss ;

NEB. REV. STAT.

§29=2523 (2) wccccccccccccccccccccccccrece cccccccce eccccccccce

N.C. GEN. STAT.

§§14-17 and 14-21.............. cccccccccccccccccs

N.H. REV. STAT. ANN.

dS Co ccccccccccccccces ccccee ccccccccccces

N.M. STAT. ANN. .

§40A-2-1, 40A-20-2 eee ee eee eee ee eeee eeceeeee eeeeee

49 U.S.C.

§1473 (c) (7) (B) (i) and (ii).............. occccccccce eccccccce

49 U.S.C.

$1473 (C) (6) (B) oc cccccccccccccccccccccccccccccccccscecccccece

UTAH CODE ANN.

SE UO soc sdcnisitadhinitcadale anes Dae aed _

UTAH CODE ANN.

§76-3-207 (1) (€)....-.---eee coe ccccccccccccece cece

UTAH CODE ANN.

§76-5-201(1) (a) and (g) and §76-3-207(1) (a)..... ce cccccccece

VERNON'S MO. STAT. ANN

§§559.009(3) and 559.05............ ee ceeccccccces

13n.1

14n.3

13n.1

14n.3

14n.'3

13n.1

14n.3

13n.1

Statutes Continued

Page

VERNON'S TEX. CODE OF CRIM. PROC.,

Art. 37.071 e*eneee eenreeeeneeeeeneeeeeeeene eeneeneeeeeee eee eS Tee

VA. CODE

§18.2-31 COSHH ERE HEHEHE EEE EEE EEE EEE EE HEHEHE EEE EET 2Hee eeeeee 13n.1

Other Authorities

Page

BOWERS, EXECUTIONS IN AMERICA

B (1974)... eeeeee evccece cecccccee ebececocccocoeecesooese secescce Saber

HOGARTH, SENTENCING AS A HUMAN PROCESS

(1971) . cccccccceccs pdbesseRddeddEeeccedeoeenedeceneeeoenencsoeaess 22n.24

JURY INSTRUCTIONS IN FEDERAL CRIMINAL CASES

$20.04. cccccccccccccccccce SObds Seceecoccepeeoosetsceneesoonesese . 27n.34

KALVEN & ZEISEL, THE AMERICAN JURY

437-44 (1966)......-02000- ecbcccccecoceseesoncesecooescooescosse - 22n.24

KOESTLER, REFLECTIONS ON HANGING

(Amer. ed. 1957) at 21-40.............- PPTTTT TIT TTT TT TTT TTT TT 24

Lehman and Norris, Same legislative History and Comments

on Ohio's New Criminal Code

23 CLEVE. ST. Le 8, 10 (1974) ccccccccccccccccccccccccccceccccess passim

Michael & Wechsler, A Rationale of the Law of Homicide

II,

37 COLLM. L. REV. 1261, 1965 (1937)..... PTTTTTT TTT TT TTT o &

Powell, Jury Trial of Crimes

WASH. & LEE L. REV. 1,5.......--6-- secccccce WeTTTTiTt coccee o =

UNITED NATIONS, DEPARIMENT OF ECONOMIC AND SOCIAL

AFFAIRS, CAPITAL PUNISHMENT

(ST/SOA/SD/9-10) (1968) at 64......... PTTTTTITITITIT TTT TT TT 24

Zumwatt, The Anarchy of Sentencing in the Federal

Courts

(57 J.AM. JUD. SOC. 96 (1973)... cc eee cccc ccc reeeseneeceeseseses 22n.24

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76 -

CARL LAMONT BAYLESS,

Petitioner,

Vv.

THE STATE OF OHIO,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE

SUPREME COURT OF OHIO

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of the State of Ohio entered November 24,

1976, rehearing denied December 22, 1976.

CITATIONS TO OPINIONS BELOW

The opinions of the Ohio Supreme Court are reported at 48 Ohio

St. 2d 73 (1976) and are attached as Appendix A.

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. §1257(3),

petitioner having asserted below and asserting here deprivation of rights

secured by the Constitution of the United States.

QUESTIONS PRESENTED

1. Does the imposition of petitioner's death sentence violate

the Sixth, Eighth, Tenth or Fourteenth amendment to the Constitution of the

United States?

2. Were petitioner's Sixth and Fourteenth Amendment Rights

denied by the empanelling of people who were unable, as a result of extensive

pretrial publicity, to function as impartial jurors?

3. Were petitioner's Sixth and Fourteenth Amendment Rights

denied by the exclusion of prospective jurors with conscientious scruples

against capital punishment?

-_-

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Sixth, Eighth, Tenth and Fourteenth

Amendments to the Constitution of the United States.

2. This case also involves the following provisions of

Ohio Law:

Ohio Rev. Code Ann. §2903.1 (1974). Aggravated murder.

(A) No person shall purposely, and with

prior calculation and design, cause the death

of another.

(B) No person shall purposely cause the

death of another while committing or attempting

to commit, or while fleeing immediately after

committing or attempting to commit kidnapping,

rape, aggravated arson or arson, aggravated

robbery or robbery, aggravated burglary or

burglary, or escape.

guilty of aggravated murder, and shall be

punished as provided in section 2929.02 of

Ohio Rev. Code Ann. §2929.02 (1974). Penalties

for murder.

(A) Whoever is convicted of aggravated :

murder in violation of section 2903.01 of

the Revised Code shall suffer death or be

imprisoned for life, as determined pursuant

to sections 2929.03 and 2929.04 of the

Revised Code. In addition, the offender

may be fined an amount fixed by the court, but

not more than twenty-five thousand dollars.

Ohio Rev. Code Ann. §2929.03 (1974). Imposing sentence

for a capital offense.

{A) If the indictment or count in the

indictment charging aggravating murder

contains no specification of an aggravating

circumstance listed in division (A) of

section 2929.04 of the Revised Code, then,

following a verdict of guilty of the charge,

the trial court shall impose sentence of

life imprisonment on the offender.

(B) If the indictment or count in the

indictment charging aggravated murder contains

one or more specifications of aggrava

circumstances listed in division (A) of

section 2929.04 of the Revised Code, the

verdict shall separately state whether the

accused is found guilty or not guilty of

the principal charge, whether the offender

is guilty of the principal charge and, if

guilty of the principal charge, whether

the offender is guilty or not guilty of each

specification. The jury shall be instructed

on its duties in this regard, which shall

include an instruction that a specification

mast be proved beyond a reasonable doubt in

order to support a guilty verdict on such

specification, but such instruction shall

j not mention the penalty which may be the

consequence of a guilty or not guilty

verdict on any charge or specification.

indictment charging aggravated murder contains

one or more specifications of aggravating

circumstances listed in division (A) of

s“=cion 2929.04 of the Revised Code, then,

following a verdit of guilty of the charge

put not guilty of each of the specifications,

the * \al court shall impose sentence of life

impris: ment on the offender. If the

indictiznt contains one or more specifications

listed in division (A) of such section, then,

following a verdict of guilty of both the

charge and one or more of the specifications,

the penalty to be imposed on the offender

shall be determined.

(D) When death may be imposed as a penalty

for aggravated murder, the court shall require

@ pre-sentence investigation and a psychiatric .

(=) Upon consideration of the reports,

testimony, other evidence, statement of the

offender, and arguments of counsel submitted

to the court pursuant to division (D) of

this section, if the court finds, or if the

panel of three judges unanimously fin'is that

none of the mitigating circumstances listed

in division (B) of section 2929.04 of the

Revised Code is established by a preponderance

of the evidence, it shall impose sentence

of death on the offender. Otherwise, it

shall impose sentence of life imprisonment

on the offender.

QGhio Rev. Code Ann. §2929.04 (1974). Criteria for

imposing death or imprisonment for a capital offense.

(A) Imposition of the death penalty for

aggravated murder is precluded, unless one or

mare of the following is specified in the

indictment or count in the indictment pursuant

to section 2941.14 of the Revised Code, and

is proved beyond a reasonable doubt:

(1) The offense was assassination

of the president of the United States

or person in line of succession to the

elect of the United States, or the

or lieutenant governor-

elect of this state, or of a candidate

for any of the foregoing offices. For

purposes of this division, a person is

a candidate if he has been nominated

for electicn according to law, or if he

has filed a petition or petitions

according to law to have his name placed

on the ballot in a primary or general

election, or if he campaigns as

a write-in candidate in a primary or

general election.

(2) The offense was committed for hire.

(3) The offense was committed for

for

another offense committed by the offender.

(4) The offense was committed while

the offender was a prisoner in a detention

facility as defined in section 2921.01 of

the Revised Code.

(5) The offender has previously been

convicted of an offense of which the gist

was the purposeful kill of or attenpt

to kill another, conmit prior to the

offense at bar, or the offense at bar

was part of the course of conduct

involving the purposeful killing of or

attempt to kill two or more persons by

the offender.

(7) The offense was committed while

the offender was camitting, attempting

; z

preponderance) of the evidence:

(1) The victim of the offense

induced or facilitated it.

(2) It is unlikely that the

offense would have been canmmitted,

but for the fact that the offender

was under stress, coercion, or strong

provocation.

(3) The offense was primarily the

product of the offerder's psychosis

or mental deficiency, though such

condition is insufficient to establish

the defense of insanity.

STATEMENT OF THE FACTS

On February 26, 1974, between 8:00 and 10:00 P.M., Mr. and

Mrs. Peal Anthory were eh@ucted at gupoint fram the parking lot of te

K-Mart Shopping Center at Wooster Road and South Hawkins Avenue in Akron,

Summit County, Ghio. (Tr. X at 2253-29). ‘The abductor took the Anthonys

to Perkins Park in their late model Cadillac, shot them, and took their car

and their personal valuables. (Tr. VIII at 1780-2014 and 2037-62; Tr. X

at 2260-63). |

At about 2:00 A.M. on February 27, petitioner Carl L. Bayless

committed an armed robbery at Church's Chicken, an Akron carry-out

restaurant, on Copley Road. At this time, Bayless and his accomplice, Coley

Smith, Jr., were driving the Anthonys’ autamobile. (Tr. X at 2265).

About 4:30 A.M. that same day, the Akron Police Department

discovered the Anthonys’ bodies in the park. The police had been led to the

scene by an informant, Samwel Howze, Jr. (Tr. VIII at 1778-1817 and Tr. VII at

1607-1610).

The same day, at approximately 8:00 A.M., Akron police officers

arrived at the home of Mrs. Ada Bayless. The police arrested Car] Bayless,

having received information allegedly linking him to these murders.

(Tr. IX at 2068-2071). |

Thereafter, petitioner was indicted on four (4) counts of

aggravated murder and three (3) counts of aggravated robbery.

Extensive newspaper, radio and television began at this time

and continued throughout petitioner’strial. The “Bayless case” became a

focal point for criticiem of the police, the courts and juvenile custodial

procedures in this State. The prior juvenile record of the petitioner and

the nature of the crimes allegedly a him received widespread

publicity.

Two special venires were summoned, comprising about one hundred

and fifty people. A jury was selected, and petitioner's trial commenced.

At trial, there was a conflict of evidence as to who had

committed the murders. Compare, Tr. VII at 1595-98 and Tr. IX at 2125-26

with Tr. X at 2253-59.

The informant Howze and the robbery accomplice Gnith turned

State's evidence. They claimed that Bayless had admitted committing the

murders. Howze and Smith both denied participating in the Anthonys’

abduction and murder.

A prosecution witness did not approach the police until several

days after Bayless’ widely publicized arrest. Joseph Thoms then contended

that petitioner admitted he “killed samebody." (After this alleged admission,

Thamas nevertheless received fram Bayless stolen property of the Anthonys.)

(Tr. IX at 2125-26).

Petitioner testified that Howze had abducted the Anthonys.

Petitioner had attempted to follow Howze in another car, but was unable to

join him until Howze alone came from the park in the Anthonys’ Cadillac.

(Tr. X at 2253-59)

™ According to Bayless, Howze did not say what he had done with

the Anthonys. Howze simply indicated that he had left them in the park.

Bayless and Howze then divided the Anthonys' valuables and, later on, after

Howze and Bayless hai abandoned their search for a place to rob, Howze gave

the Cadillac to petitioner. Bayless later told of using that car in the

restaurant robbery with Smith.

During the trial, and at the sentencing hearing, there were

conflicts in expert testimony. Dr. Kinsley, petitioner's psychologist,

testified that in his opinion Bayless was mentally deficient and criminally

insane at the time Of the commission of the crime. (Tr. IX at 2212-13,

2214-15 and 2243). Court-appointed psychiatrists disagreed with this opinion

during trial and at the sentencing hearing. (Tr. X at 2387-2398 and Tr. XI

at 2559-2607).

The petitioner plead not guilty and not guilty by reason of

insanity to the Anthonys’ murders. He also plead not guilty by reason of

insanity to the armed rohberyof the carry-out restaurant.

Qn March 19, Dr. German was appointed in the place of Dr. Kern.

These psychiatric examinations were conducted, and the reports thereof filed

in the record of this case.

On March 21, 1974, the State filed a "Motion to Reconsider

Deposition"; a "Motion for Joinder of Offenses"; a “Request for Discovery”

and a “Motion to Amend Count V of the Indictment.”

On April 1, 1974, the State filed a "Motion for Additional

Special Venire,” which was granted and names of seventy-five (75) additional

veniremen were selected.

Petitioner's counsel filed a “Motion fur Discovery” on April 1,

and a "Motion to Suppress Certain Evidence” on April 8.

Petitioner next filed a "Motion for Extension of Time for

Trial" on April 15, and on April 16, entered pleas of not guilty and not

guilty by reason of insanity. On that date, the trial court ordered a journal

entry filed nunc pro tunc, and dated March 18. The entry took petitioner's

motion for a change of venue under advisement and overruled petitioner's

motions to dismiss the indictment to inspect the grand jury minutes, and to

strike the indictment's aggravated specifications.

Qn April 16, the trial court overruled the State's motion to

reconsider the deposition of a witness and ordered that deposition set for

April 17. At this time, the State's motion to amend in part Count V of the

indictment was granted, the petitioner's motion for continuance of the trial

was overruled, a hearing on the motion to suppress was set for April 18, and a

sanity hearing was set for April 19.

On April 17, the trial court ordered that Counts I and III be

severed for the purposes of trial and Counts II, IV, V, VI and VII proceed

as scheduled. The State's motion to amend Counts II and IV by addition of

4 word, was granted.

Petitioner's motion to suppress evidence was heard and decided

on April 18. The trial court ordered that certain evidence seized he

suppressed. All remaining branches of that motion were then overruled. The

next day, after the sanity hearing, the court found petitioner presently sane,

capable of understanding the nature of charges against him and able to counsel

in his own defense.

Qn April 22, an amended bill of indictment was filed charging

defendant with two counts of aggravated murder and one count of aggravated

robbery.

On April 22, the preliminary voir dire of jurors began and

continued through April 30. Of the 150 veniremen called, twenty-six (26) were

excused by agreement of counsel for sickness, hardship, etc. Fifty-nine (59)

were examined individually, six of whom were excused over the objection of

counsel for the petitioner on the grounds of alleged opposition to the death

penalty, eighteen of wham were challenged for cause by the State and/or

defense counsel, and eleven of whom were excused by the Court on the grounds

of prejudicial opinions as to guilt.

The trial of the case began on May 1, 1974. Petitioner filed

a “Motion for Certain Instructions to the Jury” on May 8 and the next day

filed a “Second Motion for Certain Instructions to the Jury" and a "Motion

to Reconsider Other Certain Requested Instructions."

The State filed its "Motion for Certain Instructions to the

Jury” on May 9, 1974,

Petitioner was found guilty of two counts of aggravated

murder, two specifications thereon and one count of aggravated robbery. The

jury made no finding as to one charged specification.

Qn May 15 the trial court ordered its court-appointed

Drs. German and Villalba to examine defendant in accordance with the

mitigation provisions of Ohio Revised Code, Section 2929.04 (B) (3).

An application for attorneys fees for Lawrence R. Smith, Esq.,

court appointed counsel for Samuel Howze, Jr., was filed on May 16.

Letters from Judge Barbuto to Dr. Villalba and Dr. German were

filed on May 17.

While the transcript of docket and journal entries to be filed

with this Court indicates that the “Prosecutor Filed R.C. Section as to

Mental Deficiency as Relates to Mitigation” on May 17, this unsigned

memorandum was prepared at the request of the trial court by its law clerk.

On May 22, petitioner filed a motion for a new trial, which

motion was overruled on May 29. Petitioner was sentenced to death in the

electric chair.

Petitioner was advised of his right to appeal; and the trial

court stayed execution of sentence pending disposition of all appeals, while

appointing trial counsel to prepare the appeal.

Petitioner's death sentence was finally affirmed by the

Ohio Supreme Court.

In general, the petitioner was indicted, tried, convicted

ard sentenced to death, and such judgment and sentence “re finally affirmed

by the Ohio Supreme Court, in violation of his rights under the Sixth,

Eighth, Tenth and Fourteenth Amendments to the United States Constitution.

These federal questions were raised, at the earliest possible time, at trial

in the Court of Camron Pleas of Summit County, Ohio by pleadings (motions to

dismiss and strike directed to the indictment, etc.), by objections and

exceptions to the evidence (during voir dire and trial), by requests to

charge (especially as to lesser included offenses), and abjections and

excertions thereto, and by motions, objection and exceptions to the

substantive and procedural constitutionality of the mitigation hearings and

evidence. These claims as to the federal questions were also raised and

pressed consistently in the assignments of errors to the Court of Appeals

for Summit County, Ohio and in the propositions: of law proposed to the

Ohio Supreme Court.

-ll-

The manner in which the state courts below passed upon the

federal questions is reflected in the attached opinions.

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI TO REVIEW THE

CONSTITUTIONAL VALIDITY OF PETITIONER'S SENTENCE OF DEATH.

Introduction

This capital case, involving heinous crimes for which a

culturally and emtionaly deprived youth was convicted, should be reversed,

because he was unconstitutionally charged, tried and convicted.

Ohio's scheme of imposition of capital punishment simply

cannot stand scrutiny.

The Ohio laws plainly dictate that a convicted murderer be

executed unless he proves one of three mitigating circumstances. Cf.,

Mullaney v. Wilbur, 421 U.S. 684 (1975).

This is not fair, just or constitutional. Id.

The Ohio laws cannot be upheld where (as here) they are

susceptible to arbitrary, capricious and freakish application. , Gregg v. lies

Georgia, 96 S. Ct. 2909; Furman v. Georgia, 408 U.S. 238 (1972). The gravemen of /

case is whether a human being should be put to death on the basis of his

Intelligence Quotient ("I.Q.").

A cursory reading of the preceding Ohio Statutes readily

discloses that the only realistic exculpation from the ultimate penalty is

being an embicile, psychotic or a moron.

In short, the Ohio death penalty escapes are illusory.

The Ohio Death Penalty Statutes

Place Unconstitutional Limitations

i= the Consideration of Mitigating

ircumstances.

Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v.

Louisiana, 428 U.S. 325 (1976), hold that contemporary standards of decency,

incorporated in the Eighth Amendment, require “particularized consideration

of relevant aspects of the character and record of each convicted defendant

before the imposition upon him of a sentence of death" and forbid “treat [ing]

all persons convicted of a designated offense not as uniquely individual

human beings, but as members of a faceless, undifferentiated mass to be

subjected to the blind infliction of the penalty of death," Woodson v.

North Carolina, supra, 44 U.S.L.W. at 5274. Moreover, they acknowledge that

post-Furman legislative enactments of statutes allowing automatic application

of the death penalty reflect “attempts by the States to retain the death

penalty in a form consistent with the Constitution,” rather than "a renewed

societal acceptance" of Draconian infliction of capital punishment. Id. at

5273.

Examination of the Ohio death penalty statutes and the history

of their enactment establishes that they, like the statutes invalidated in

‘Woodson and Roberts, ar. more rigid than contemporary standards of decency can

condone, and reflective, not of the will of the people of the State of Ohio as

expressed through its legislature, but of a compromise between humane policy

concerns and the supposed requirements of Furman.

In the wake of Furman, 21 of the 35 states that enacted new

death sentencing provisions made death the mandatory consequence of a finding

that a defendant was guilty of certain criminal contact. © These states

responded to the judgment of respected legal scholars that only the removal

of all sentencing discretion would satisfy the Furman requirement that death

sentences not be arbitrarily imposed. However, the federal government and

ll states enacted statutes following the example of the Modei Penal Code

Proposed Official Draft of 1962 in that they directed consideration of

aggravating and mitigating circumstances in the process of determining

1/ 11 Del. Code §§636, 4209(1); Idaho Code §§18-4003 and 4004; Ind. Ann

Stat. §10-3041(b); Ky. Criin. Code, Sec. 5 76(2) and 61 (2); La. Rev. Stat.

Ann. §§14:30, 14:113 and 14:44; Md. Code Ann. Art. 27, §413; Miss. Code

§§97-3-65, 97-3-21 and 97-3-19(2); Vernon's Mo. Stat. Ann. §§559.009(3) and

559.05; Nev. Rev. Stat. §200-030 (5); N.H. Rev. Stat. Ann. §¢30:1; N.M. Stat.

Ann. §40A-2-1, 40A-20-2; N.C. Gen. Stat. §§14-17 and 14-21; Okla. Stat. Tit.

21, §701.3; R.I. Gen. Laws Ann. §11-23-2; S.C. Code §16-52; Tenn. Code Ann.

§§39-3702 and 39-2402; Va. Code §18.2-31; Wash. Rev. Code 9.48.030, Initiative

Measure No. 316

sentence in a capital ane These twelve jurisdictions, finding the

mandatory scheme too harsh, and anticipating that the United States Supreme

Court would approve capital sentencing discreticn if that discretion were

guided by standards, chose to focus sentencing deliberations upon a broad

range of mitigating Qestene.

2/ See, Model Penal Code §201.6 (Proposed Offical Draft, 1962).

} In Arizona, Georgia, Illinois, Montana and Utah, factor deemed

mitigating by the sentencing authority could be cunstlien , and could preclude

imposition of a capital sentence. Ariz. Rev. Stat. §13-454(D); Ga. Code

§27-2531.1(b); Ill. Rev. Stat. ch. 38, §1005-8-1A (subsequently invalidated) ;

Mont. Rev. Codes Ann. §94-5-105(1); Utah Code Ann. §76-5-202(1)(g). And the

mitigating factors considered in the sentencing process in these twelve

jursidictions invariably include, as they must, in light of the Woodson and

Roberts holdings, factors having to do with "the character and record” of

the defendant whose life is at stake. Woodson v. North carokne, Sura,

44 U.S.L.W. at 5274. ‘Thus, in Alabama, Arkansas, Colorado, cut,

Florida, Nebraska, Utah and in Federal jurisdictions, the age of the defendant

must be considered, and in Colorado and Connecticut and under Federal law a

finding that the defendant was under eighteen is an absolute bar to imposition

of a death sentence. Ala. H.B. 212 §7(g); Ark. Code §41-4712(d); Sec. (5) (a),

Col. S.B. No. 46 (1974 sess.); Conn. Gen. Stat. §53a-45(4) (f£); Fla. Stat.

Ann. §921.141(7); Neb. Rev. Stat. §29-2523(2); Utah Code Ann. §76-3-207 (1) (e)

49 U.S.C. 1473(c) (6) (A). See also Cal. Penal §190.3; N.M. Stat. Ann.

§40a-20-2; NY Penal Taw §125.27. In all twelve jurisdictions, the prior

criminal record of the defendant must be considered. Ala. H.B. 212 §§(6)

(a) and (b); Ariz. Rev. Stat. §§13-454 (1) and (2); Ark. §§41-4711 (a) and

(b); Sec. 4 (6) (a), Col. S.B. No. 46; Conn. Gen. Stat. §§53a-45(g) (1) and

(2); Fla. Stat. Ann. §§921.141(6) (a) and (b) and (7) and (a); Ga. Code

§27-2534.1(b) (1); Ill. Rev. Stat. ch. 38, 1005-8-1A(3); Mont. Rev. Codes

Ann. §94-5-105(1) (b); Neb. Rev. Stat. §§29-2523(1) (a) and (2) (a);

Utah Code Ann. §76-5-201(1) (a) and (g) and §76-3-207 (1) (a); 49 U.S.c.

§1473 (c) (7) (B) (i) and (ii). In Alabama, Arkansas, Florida and Nebraska,

a broad range of mental and emotional disturbance may be considered

mitigating. Ala. H.B. 212 §7(b); Ark. Code §41-4712(a); Fla. Stat. Ann.

§921.141 (7) (b); Neb. Rev. Stat. §§92-2523 (2) (b) and (c). And limitations

im the capacity of the defendant to regulate or appreciate the wrongfulness

of his conduct are mitigating in Alabama, Arizona, Arkansas, Connecticut,

Florida and Nebraska and in Federal jurisdictions and preclude imposition of

a death sentence in Colorado. Ala. H.B. 212 §7(f); Ariz. Rev. Stat.

§13-454(F) (1); Ark. Code §41-4712(c); Sec. 4 (4) (b), Col. S.B. No. 46;

Conn. Gen. Stat. §53a-45(f) (2); Fla. Stat. Ann §921. 141 (7) (f£); Neb.

Rev. Stat. §29-2523(2) (g); 49 U.S.C. §1473 (c) (6) (B).

-14-

——

At the time of the Furman decision, a statute containing

mitigating circumstances of the kind contained in the Model Penal Code had

passed the Ohio House of Representatives and was pending before the Senate

Judiciary Committee. / In light of Furman, the Senate Committee felt it

necessary to "[rjefine the House position by retaining the death penalty, but

remov [ing] from the judge and jury as much discretion as possible in the

punishment determination procedure." 2/ Sentencing determinations in

capital cases were therefore taken fram the jury and all mitigating factors

having to do with the character and background of the offender were

eliminated, save one:

"The offense was primarily the product of the

offender's psychosis or mental deficiency... ."

Ohio Rev. Code §2929.04(B) (3). ©/ In view of the extreme improbability

that a psychotic offender would be found criminally responsible, the utility

of this circumstance as a means to open the door to consideration of the life

4/ Lehman and Norris, Some islative History and Comments on Ohio's New

Criminal Code. 23 CLEV. ST. L. REV. 8, 18 (1974).

/ 14. at 20.

6 / The statute provides that the trial judge, or if trial is without a jury,

a panel of judges, Ohio Rev. Code §2929.03 (c), must impose a death penalty

unless the defendant convicted of aggravated murder with specifications proves

one of the following factors by a preponderance of evidence:

"(1) The victim of the offense induced or

facilitated it.

(2) It is unlikely that the offense would have

been canmitted, but for the fact that the offender

was under stress, coercion, of strong provocation.

(3) The offense was primarily the product of the

offender's psychosis or mental deficiency, though

such condition is insufficient to establish the

defense of insanity."

Ohio Rev. Code §2929.04(B).

so ae

T6787

These pleas were submitted, and the jury returned guilty

verdicts on two charges of aggravated murder and on two of three specifica-

tions. The jury also returned a guilty verdict on the armed robbery charge.

Under narrowly defined bowidsot "mental deficiency" the trial

court found no mitigating circumstances.

Bayless was sentenced to death in the electric chair.

STATEMENT OF Trii CASE

A bill of indictment was filed on March 6, 1974, charging the

petitioner with four counts of aggravated murder and three counts of

aggravated robbery.

Angelo Fanelly and "Jilliam R. Holland were appointed counsel

for petitioner. Petitioner was first arraigned on March 11 and plead not

guilty. At that time, the Court granted petitioner permission to file any

necessary pleadings available to him prior to his plea. On this date,

petitioner requested permission to take a polygraph examination, which the

trial court granted. The prosecuting attorney then filed an application to

reconsider the motion to take a polygrach.

On March 11, the trial court also ordered that trial be set for

April 22 and that a special venire of seventy-five (75) names be drawn.

Again on March 11, appointed defense counsel Fanelly withdrew

from this case for personal reasons, and Norman Purnell, Esq. was appointed.

After more consultation with attorneys Purnell and Holland, petitioner

withdrew his request for a polygraph examination.

On March 18, 1974, petitioner filed a "Motion to Dismiss the

Indictment and/or Grant Appropriate Relief"; a "Motion for Change of Venue

or Change of Venire" and an "Application to Take Depositions." The Court

then ordered the appointment of three psychiatrists, Drs. Kern, Barton and

Villalba, to examine defendant's mental condition as to his competency to

stand trial. |

and character of the accused turns, in practice, upon the scope of the term

“mental deficiency." This term is, as a matter of general and psychiatric

usage, synonomous with mental retardation, and the Supreme Court of Ohio has

held that its meaning is not significantly broader in the context of

§2929.04. State v. Bayless 48 Ohio St. 2d 73, 94-96, (1976) .—/

Thus -- under a sentencing scheme designed "to remove ... as much discretion

as possible in the punishment determinatim procedure, Sf -- virtually

every person who is not mentally retarded and who is convicted of a capital

crime becomes part of "a faceless, undifferentiated mass to be subjected to

the blind infliction of the penalty of death" —2/ solely on the basis of the

circumstances of a single criminal act and without independent consideration

of any mitigating aspect of his life and character.

7/ ‘That Court noted that:

"[m)erfal deficiency is consistently defined

to mean a low or defective state of

intelligence,"

id. and deemed ftself:

"...unable to find that the decision of the

General Assembly to allow mitigation of

sentence for those who are mentally deficient,

but not of other mental disorders not

constituting psychosis or amounting to

insanity, falls outside the proper scope of

its authority to assign responsibility and

punishment for criminal offenses,"

id. Surprisingly, it has said that age is a “primary” factor going to mental

deficiency, State. v. Bell, 48 Ohio St. 2d 270 (1977). But it has invariably

upheld death sentences imposed against minors. State v. Bell, supra.

(defendant 17 at tine of arrest).

In State v. , 48 Ohio St. 2d 381 (1976), it upheld, against

a claim that the required a finding of mental deficiency, a death

sentence imposed upon a defendant who “had an I.Q. of 75 in 1962; 61 in 1966;

and 54 in 1968," id. at 389.

8 / Lehman and Norris, Some legislative History and Comments on Ohio's

New Criminal Code, 23 CLEV. ST. L. REV. 8, 20-21 (1974).

9 / Woodson v. North Carolina, supra.

This Court's recognition that, under contemporary standards of.

morality, not " ' every offense in a like legal category calls for an ek

identical punishment without regard to the past life and habits of a

particular offender,'" and that’ "' individual culpability is not always

measured by the category of crime committed’ 19 is confirmed by the

record of capital legislation enacted since its pronouncement that focused,

discretionary capital sentencing processes are not in necessary conflict with

Eighth Amendment prohobitions. For, legislatures free of misconceptions

engendered by the Furman opinions have sometimes allowed consideration of

any circumstance deemed mitigating by the sentencer, and have in no case

defined mitigating factors as restrictively as did the Ohio legislature.

By contrast, the Ohio legislation not only precludes, for the

non-retarded, consideration of any mitigating factor not inhering in the fac

of the crime, but precludes consideration of most mitigating aspects of the

crime itself, allowing mercy only in the rare cases in which duress or victim

inducement is present but does not constitute a defense.

10 / Roberts v. Louisiana, supra.

Ohio's appellate review systen J cries for evaluation

by this court in light of the “fundamental respect for humanity underlying

the Eighth Amendment ... that requires consideration of the character and

record of the individual offender and the circumstances of the particular

offense as a constitutionally indispensable part of the process of inflicting

the penalty of death," Woodson v. North Carolina, supra, 428 U.S. 280 (1976).

provisions must “be liberally construed in favor

Bell, 48 Ohio St. 2d 270, 281 (1976), it has also held that it “will not retry

issues of fact" going to sentence determination, but will only determine

“whether there is sufficient substantial evidence to support the verdict;*

State v. Edwards, 49 Ohio St. 2d 31, 47 (1976) and has upheld a finding

of an absence of duress or mental defiency, and the resultant death sentence,

in the case of a sixteen year old accomplice of an adult triggerman where

"[t]here was evidence in the psychiatric reports that... [he] was perhaps

easily led by... [the triggerman])" and evidence of “an unsatisfactory hame,

absence of family or other supervision, drug involvement, and an inability to

cope with school demands,” State v. Bell, supra, 48 Ohio St. 2d at 282.

The Ohio Supreme Court has reviewed about 20 post-Furman death

sentences. It has reduced none.

An intermediate Ohio Appellate court has vacated the death sentences

of two co-defendants after finding:

“that the undisputed evidence demonstrates that

the victim's willingness to buy a large sum of

marijuana ‘facilitated’ the robbery... [and that]

the victim's decision to participate in such

unlawful while [conspicuously] armed ... ‘induced’

(i.e. persuaded) the offenders ... in the use of

firearms that resulted in the victim's death."

State v. Hines, Ct. of Appeals, Fifth App. Dist., Case Nos. CA-634-639.

Before vacating the sentence, the court deemed it necessary to find, in

addition, that

"no basis exists (considering the nature and

circumstances of the offense and the history,

character and condition of ... [the offenders] )

to negate the existence ... of mitigating ...."

Id. at 57.

Cc.

The Ohio Death Penalt Statutes Violate

Sixth, Bich 7 Fourteenth Amend

Circumstances,

of the Penalty o

In view of the “awesome finality of a capital case, Y

American jurisdictions had, prior to the decision of the United States

Supreme Court in Purman v. Georgia, 408 U.S. 238 (1972), determined with near

unanimity that “infliction of the death penalty” be put in the hands of the

jury, rather than the judge." LF, Indeed, "[e)xcept for four States

that entirely abolished capital punishment in the middle of the last century,

every American jurisdiction had at ous tien authorized jury sentencing in

capital cases." McGautha v. California, supra, 402 U.S. at 200, n. 1l.

"The inadequacy of distinguishing between

murderers solely on the basis of legislative

criteria narrowing the definition of the capital

offense led the States to grant juries sentencing

discretion in capital cases. Tennessee in 1838,

followed by Alabama in 1841, and Louisiana in 1846,

were the first states to abandon mandatory death

sentences in favor of discretionary death penalty

statutes. This flexibility remedied the harshness

of mandatory statutes by permitting the jury to

resond to mitigating factors by withholding the

death penalty. By the turn of the century, 23

states and the Federal Government had made death

sentences discretionary for first-degree murder

and other capital offenses. During the next two

decades 14 additional states replaced their

mandatory death penalty statutes. Thus, by the

end of World War I, all but eight states, Hawaii,

and the District of Columbia either had adopted

discretionary death penalty schemes or abolished

the death penalty altogether. By 1973, all of

15 / McElroy v. United States, 361 U.S. 249, 255 (1960) (dissenting and

concurring opinion of Mr. Justice Harlan).

16 / Ibid.

these remaining jurisdictions had replaced

their autamatic death penalty statutes with

discretionary jury 17/ sentencing." 18, ;

In Ohio, the shift to jury discretion in capital sentencing

came in 1898, 1 and the system prevailed without interruption until the

death penalty statutes of that state were invalidated in 1972. There is a)

doubt that the subsequent determination to strip the jury of tes cuntset

over the use of the death penalty reflects the desire of the Legislature to

“retain the death penalty in a form consistent with the [Federal]

constitution" 2y rather than a willino abandorment of the gutentehe tan

the momentus decision to take or spare the life of a criminal defendant can

only be made by a jury of his peers. ts ewan

drafted before the decision of this Court in Furman v. Georgia om"

prwided for jury sentencing in capital cases. 21/ put, faced with the

Furman ruling that unbridled jury discretion to impose a death euntenas Gas

constitutionally prohibited and the opinion expressed in McGautha that the |

sente{

pice

aL In 1965, the State of Colorado placed discretionary authority to

etermine sentence in capital murder sentences solely in the hands of ti:

trial judge. It was the only jurisdiction to do so after the national

shift to jury discretion or abolition and before Furman. BOWERS,

IN AMERICA 8 (1974).

18 / Woodson v. North Carolina, supra.

19 / BOWERS EXECUTIONS IN AMERICA 8 (1974).

20 / Woodson v. North Carolina, supra.

Lehman & Norris, Some Legislative History and Comments on Ohio's,

‘act

BEST COPY AVAILABLE

formulation of standards to guide juries in the capital sentencing process

was impossible, the Ohio legislature undoubtedly thought it necessary to make

capital sentencing a matter for judicial determination. _/

It is now conceded that “McGautha's assumption that it is

not possible to devise standards to guide and regularize jury sentencing in

capital cases has been undermined by subsequent experience,” Gregg v. Georgia,

supra. This court has reaffirmed —’ the desirability of jury input in the

capital sentencing process, Id. Proffitt v. Florida, supra, and struck down

the death penalty laws of three states for their failure to provide a

"meaningful opportunity for consideration of mitigating factors presented

by the circumstances of the particular crime or by the attributes of the

individual offender." Roberts v. Louisiana, supra. And, while this Court

has “never suggested that jury sentencing is constitutionally required,"

"Proffitt v. Florida, supra, it has neither considered or approved a post-

Furman death penalty statute which excluded the jury from the process of

24 /

determining sentence. Indeed, in upholding the Florida, post-Furman

22 / Id. at 20.

23} See, Witherspoon v. Illinois, 391 U.S. 510, 390, 391 n. 15, McGautha

v. California, supra, at 200 n. Il, 211.

24 / The Court's speculation that "judicial sentencing would lead, if

anything, to even greater consistency in the imposition at the trial court

level of capital punishment, since a trial judge is more experienced in

of a systen in which an advisory jury sentence may be mitigated at the

discretion of the trial judge and may only be increased where a life sentence

would be clearly unreasonable. Even so, it seams to ignore the well

documented fact that sentencing attitudes and practices differ widely among

=2e-

death penalty statute, this Court has approved only the most limited

encroachment upon the tradition that only a jury may impose a sentence of

death.

“The jury's (sentencing) verdict is determined

by majority vote. It is only advisory; the

actual sentence is determined by the trial judge.

The Florida Supreme Court has stated, however,

that '[i)]n order to sustain a sentence of

death following a jury recommendation of life,

the facts suggesting a sentence of death should

be so clear and convircing that virtually no

reasonable person could differ.'"

Proffitt'v. Florida, supra.

Although it may be permissible — and desirable -- to permit

trial judges to reduce death sentences imposed uner the influence of passion

or prejudice or against the weight of aggravating and mitigating evidence,

the imposition of a death penalty under a procedure which affords no

opportunity for meaningful jury input -- a practice introduced to contemporary;

jurisprudence as a result of confusion engendered by Furman and McGautha —

encroaches three independent constitutional principles, and, therefore merits

24 / Continued

judges, see, e.g. Zumwatt, The Anarc

57 J. AM. JUD. SOC. 96 (197 ; AR :

cas commtahuaionms of tanlan sie ae dik Gaga cues Ge Seen ot Ge

judge by wham a particular case is decided is manifest. Moreover, detailed,

scientific review has revealed no greater consistency in judicial, capital

sentencing, although juries were found to be slightly more lenient. KALVEN &

ZEISEL, THE AMERICAN JURY, 437-44 (1966).

of Soeee g in the Federal Courts,

~23~

“The magnitude of a decisian to take a human life is probably

unparalleled in the human experience of a member of civilized society.”

Marion v. Beto, 434 F. 24 29, 32 (C.A. 5, 1970). We have traced a history

which .*rongly suggests that jury participation in such a decision represents

a “principle of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97,

104 ass). 2”

Although the legislative trend away from judicial imposition

of the death penalty was in part a response to the problem of jury mullificatifn,

it was mandated by the enormity of the issue in the context of contemporary

standards of morality, McElroy v. United States, supra, 361 U.S. at 255.

Legislators across the nation determined, as did Congress, to “take from the

judge the onus of inflicting capital punishment,” United States v. Jackson,

390 U.S. 570, 576, n. 12, because, in the matter of life and death, as in

matters of fact going to the question of guilt or innocerce,

“If the defendant preferred the canmon-sense

judgment of a jury to the more tutored but

perhaps less sympathetic reaction of the single

judge, he was to have it."

Duncan v. Louisiana, 391 U.S. 145, 156 (1968). The capital defendant was

thereby assured that his fate might be determined by a body representative

25 See, Bloom v. Illinois, 391 U.S. 194, 202-07 (1968) in which the Court

feted upon a camparable historic pattern to impose constitutional limita

upon "the power of judges to try contenpts," id. at 207.

of the full range of social strata and interests rather than by a judge

who is trained and bound to uphold the law and may well give less weight to

mitigating evidence out of a reluctance to deprive the citizenry of any

protection or retribution. Since Judges do impose the death penalty

“somewhat more often" than do juries, KALVEN AND ZEISEL, THE AMERICAN JURY

435 (1966), this right can be, in any given case, the right to life.

"[A)mong the leading authorities in penal

science, the supporters of abolition appreciably

outnumber those who favour the retention of

capital punishment. The specialists of the

social sciences, criminologists, sociologists.

The supporters of capital punishment, apart from

a number of political figures and persons holding

high public office, are generally jurists with

a traditional training and judges.”

UNITED NATIONS, DEPARIMENT OF ECONOMIC AND SOCIAL AFFAIRS, CAPITAL

PUNISHMENT (ST/SOA/SD/9-10) (1968) at 64. See also KOESTLER, REFLECTIONS

ON HANGING (Amer. ed. 1957) at 21-40.

Moreover, the policy of placing the decision to take or spare

life in the hands of the representatives of the people whom the law stands

to protect, and whose retributive sentiments the law serves to counsel,

serves "to maintain a link between contemporary community values and the penal

system -- a link without which the determination of punishment could hardly

reflect ‘the evolving standards of decency that mark the progress of a

maturing society.'" Witherspoon v. Illinois, supra, 391 U.S. 510, 520 n. 15.

When life is at stake, jury sentencing "'places the real direction of society

in the hands of the governed ... and not in ..,. the govermment,'” Powell,

Jury Trial of Crimes, 23 WASH. & LEE L. REV. 1, 5, citing 1 DE TOCHQUEVILLE,

DEMOCRACY IN AMERICA 282 (Reeve Transl. 1948) (1966).

Jury determinations are one of "the two crucial indicators

of evolving standards of decency respecting the imposition of punishment

in our society.” Woodson v. North Carolina, supra, —~ At a time when

society has rejected "the belief that ‘every offense in a like legal

category calls for an idential punishment without regard to the past life on

habits of a particular offender, 1» 27/ s+ is the only precise indicator

of those standards. For, while it is possible that over the years patterns

of jury nullification and legislative enactment may reveal popular revulsion

against imposition of the death penalty in subtle categories of cases, the

Eight Amendment surely forbids the execution of defendants wham juries might

have spared had the will of the people been made directly known through jury

sentencing. The unnecessary institutionalization of a sentencing system

which thwarts the merciful sentiments of the people while these subtle

distinctions are identified and acted upon by courts and legislatures can

only result in unnecessary and unpopular use of the most drastic sanction

which the government can impose upon its citizens.

"In our criminal courts the jury sits as the

representative of the cormunity; its voice

is that of the society against which the crime

was commited." —28/

That voice must be heard on the question whether life is to be taken in its

behalf.

26 "The jury ... is a significant and reliable objective index of

Contemporary values because it is so direct)y involved." Gregg v. Georgia,

27. / Roberts v. Louisiana, supra, 428 U.S. at °

28 Williams v. New York, 337 U.S. 241, 253 (1949) (dissenting opinion

of Justice Murphy) .

-25-

2. The Failure to Provide for Jury Input in the

Capital Sentencing Process will result in

Impermissably Arbitrary Imposition or the -

Penalty of Death.

Mandatory death penalty provisions, which “withdr [ew] all

sentencing discretion fram juries in capital cases," failed "to provide a

constitutionally tolerable response to Furman's rejection of unbridled jury

discretion in the imposition of capital sentences," Woodson v. North

Carolina, supra. This is because, in view of the fact “that American juries

have persistently refused to convict a significant portion of persons charged

with first-degree murder of that offense under mandatory death penalty

statutes ... it is only reasonble to assume that many juries under mandatory

statutes will continue to consider the grave consequences of a conviction

in reaching a verdict ...

Instead of rationalizing the sentencing process,

a mandatory scheme may well exacerbate the

problem identified in Furman by resting the

penalty determination on the particular jury's

willingness to act lawlessly."

Ibid. This argument is equally compelling where aggravating circumstances

are built into the definitions of capital crimes, Roberts v. Louisiana,

supra, SO long as the punishment determination is out of the hands of the

jury, it is no less compelling where a death sentence may be imposed upon a

judicial finding of the absence of mitigating factors. For,

"... there is a point at which the wide-spread

impu.ition of drastically severe penalties

arouses in ordinary men a sympathy for those \

accused of crime which leads them to refuse to }

particpate in their infliction, as complainants, - 6

as witnesses, as jurors, and even as officials.

When this result occurs, nullification ensues

and the effect of severity of threatened...

punishment is greatly to increase its actual .

uncertainty as well as to provide a general ‘

hatred of the law which must culminate

ultimately in its change."

Michael & Wechsler, A Rationale of the Law of Homicide II, 37 COLIM. L.

REV. 1261, 1265 (1937). And

“If the matter is consigned to the discretion of

some Other administrator, such as the judge, the

danger of nullification by the jury remains,

though it may be smaller than if an offensive

penalty is legislatively prescribed. Whether

or not that is so will depend upm the jury's

guess as to what the judge is likely to do in

the event of conviction."

Id. at 1267, n. 19. The addition of a new uncertainty in the processes of

trial, appeal and executive review of death sentences can not minimize the

incidence of mullification sufficiently to meet the concerns articulated in

Furman, Woodson and Roberts.

3. Findings Regarding the Presence or Absence

of Mitigating Circumstances are Findings

of Fact as to which a Defendant has a Sixth

Amendment Right to a Trial by Jury.

The determination made by judges pursuant to §2929.04(B), is a

substantially different determination than that typically made by judges in

the process of criminal sentencing. For, as we have pointed out above,

there can be no weighing of aggravating and mitigating circumstances, no

consideration of whether the defendant before the court may or may not be

29/

rehabilitated, no independent evaluation of "the character and record

of the individual offender,” Roberts v. Louisiana. The §2929.04(B)

proceeding consists of three factual determinations of the kind that juries

29 / Compare, Vernon's Tex. Code of Crim. Proc., Art. 37.071.

<~,™

were designed to make, have traditionally made, and mst, if the right to

trial by jury is to be safeguarded, be permitted to make. The determinations

whether "the victim of the offense induced or facilitated it,” and whether

"it is unlikely that the offense would have been committed, but for the fact

that the offender was under duress, coercion, or strong provocation” are

indistinguishable in kind from the determination that the defendant was

“under extreme emotional stress brought on by serious provocation reasonably

sufficient to incite him into using deadly force" and thus guilty of the

lesser offense of voluntary manslaughter. —Y And the determination

whether "the offense was primarily the product of the offender's psychosis or

mental deficiency, though such condition is insufficient to establish the

defense of insanity” is surely no different in kind than the determination

whether the defense of insanity was in fact established.

A factual determination which separates those who will live

and those who will die by the hand of the state is a determination so

significant that the prodecural safeguards surrounding its adjudication may

not depend upon the form in which the distinction is articulated, for "the

criminal law ... is concerned not only with guilt or innocence in the

abstract but also with the degree of criminal culpability," Mullaney v.

Wilbur, 321 U.S. 684 (1975). In drawing a distinction between "those who

kill in the heat of passion and those who kill in the absence of ... [that]

factor" without requiring that the prosecution prove the absence of

30 , Ohio Rev. Code Ann. §2903.03

—

‘ Pa

—_

overriding passion beyond a reasonable doubt, the State of Maine impermissably

denigrated the principle that criminal conviction may only be obtained by

proof beyond a reasonable doubt of every element of the alleged crime.” Id.

at 698. Since the State of Ohio has drawn a distinction between those who

kill under statutorily defined mitigating circumstances — two of which

bear remarkable similarity to the determination at issue in Mullaney — and

those who kill in the absence of such circumstances, and has determined that

the death penalty is only applicable in the latter category of cases, it

cannot constitutionally evade the equally important principle that the

criminal defendant is entitled to a judgment of his peers as to facts that

Significantly affect the degree of his culpability. This is not to say that

all factors affecting criminal sentencing determinations must be decided

by a jury, ~” put Mullaney stands for the proposition that where the

determination of certain factors is of crucial significance — where it "may

be of greater importance than the difference between guilt or innocence for

many lesser crimes" — the state may not lessen the standards by which those

factors must be proved by "characterizing them as factors that bear solely

on the extent of punishment." Ibid. Surely, the distinction between crimes

punishable by death and those punishable by life imprisonment is of crucial

Significance. For "the penalty of death is quilieatively different from a

sentence of imprisonment, however long. Death, it is finality, differs mre

from life imorisonment than a 100-year prison term differs fran one of only

a year or two." Woodson v. North Carolina, supra.

31 / See note 33, infra.

Judge Friendly held in United States v. Kramer, 289 F. 2d 909

(C.A. 2, 1961) that where an aggravating circumstance is not “an element of

the crime but rather a fact going only to the degree of punishment," ané

where the presence of the aggravating circumstance substantially increases

the severity of possible sentencing consequences, ae / it must be assumed

that "the Sixth Amendment entitles a defendant to have that fact determined

— 34/

by the jury rather than by the sentencing judge. Id. at 912.

This principle is no less valid in the case of mitigating factors of

identical import.

32_/ The aggravating circumstance involved in Kramer (the Fact that

embezzled commercial paper exceed $100 in value) increased the crime from a

misdemeanor to a felony. Id. at 920.

tein The District of Columbia Circuit has held to the contrary regarding

relatively straighforward question of whether the defendant has been

convicted triggers the operation of recidivist provisions. Jackson v.

United States, 221 F. 2d 883 (C.A.D.C., 1955); Anderson v. United States,

326 A. 20 807 (C.A.D.C., 1974); but see, United States v. Bolden, 514 F. 2d

1301 (C.A.D.C., 1975). We do not challenge the reasoning of these cases

insofar as they relate to the right to have a jury perform the essentially

ministerial function of determining whether a defendant has been convicted

of prior felonies. But the complex, judgmental questions articulated by

§2929.04(B) separate those who may live and those who may die. In sucha

determination the right to a jury may not be denied.

34 / The Kramer principle "is now well recognized." United States v. DeVall,

462 F. 24 137, 142 (C.A. 5, 1972). See, JURY INSTRUCTIONS IN FEDERAL

CRIMINAL CASES, §20.04, cited in United States v. Ditata, 469 F. 2d 1270,

1273, n. 3 (C.A. 7, 1973):°

"The Government must prove the value of the

property stolen because the law provides a

greater penalty if the value of the property

exceeds $100. ... The value of the property

stolen is a question of fact to be determined

by the jury."

-30-

Ohio Capital Sentenc Procedures

ey Exercise of

ight to Trial by Jury.

United States v. Jackson, 390 U.S..570 (1968) stands for the

proposition that the right to a jury trial is unconstitutionally diminished

when separate and more lenient sentencing standards are established for

cases in which the right is waived. See also, Funicello v. New Jersey,

403 U.S. 948 (1911) (per curiam); Atkinson v. North Carolina, 403 U.S. 948

(1971) (per curiam). This is so because such a scheme “needlessly encourages"

the waiver of the right to have one's guilt determined by a jury. Id. at 583.

Yet, under Ohio capital sentencing procedures the defendant who elects to be

tried by a jury mist forego the benefit of having his fate determined by a

panel of judges rather than by a single judge. This benefit is, of course,

considerable:

"A mailti-judee court offers an opportunity for

disagreement wholly lacking in a single judge.

With such an issue as the death penalty involved,

the possibility and availability of disagreement

are advantages that cannot be disregarded. The

fact that a single judge may be reluctant to

assume the awesome solitary choice between life

and death cannot weigh in the balance. Judges

are presumed to have the fortitude to carryout

their responsibilities."

Rainsburger v. Foglaine, 380 F. 2d 783, 785 (C.A. 9, 1967). And, since

there is no justification for conferring the benefit upon some, but not all

capital defendants, it can not legitimately serve as an inducement to forego

trial by a jury of one's peers,

Ohio Capital Sentencing Procedures

Impermissibly Shift to the Defendant

Convicted Aggravated Murder

with Spe Specific ications the e Burden of

Facts which Di ) Those

ly Live and Those Must Die.

The existence of mitigating factors, under Ohio Law, must be

established by the defendant and by a preponderance of the evidence. QGhio

=3i-

Rev. Code Ann. §2929.04(B) (1974). State v. Royster, supra, 48 Ohio St.

2d at 389.

As previously discussed, the nature of the inquiry conducted at

the mitigation phase of an Ohio capital trial and established that it is a

proceeding at which narrow factual determinations are made about the

psychological makeup of the defendant and the precise nature of his crime.

We have pointed out that it is upon the basis of these factual determinations

that defendants are categorized as being punishable by life imprisonment

or condemned to die at the hand of the State. If a distinction of this kind

is to be drawn, the State mst "require the prosecution to establish beyond

a reasonable doubt the fact[s] upon which it turns, "Mullaney v. Wilbur,

supra.

""([t}he penalty of death is qualitatively

different from a sentence of imprisonment,

however long. Death, in its finality,

differs more from life imprisonment than

a 100-year prison term differs from one of

only a year or two. Because of that quali-

tative difference, there is a corresponding

difference in the need for reliability in

the determination that death is the appro”

priate punishment in a specific case

Gardner v. Florida, citing Woodson v. North Carolina, supra, (concurring

opinion of Mr. Justice White) (Emphasis by Mr. Justice White). It follows

that Strict adherence to the Due Process requirements set forth in Mullaney

is compelled in the context of a mitigation hearing of the kind which the

State of Ohio has devised, for

"There is always in litigation a margin of

error in fact-finding, which both parties

has at stake an interest of transcending

value ... this margin of error is reduced

as to Arcee Merch mgr nen ting > geome yy

the other party the burden [of proof] ...

beyond a reasonable doubt.”

Speiser v. Randall, 357 U.S. 513, 525-526 (1958).

~32-

It can not be denied that the capital defendant "has at stake an

interest of transcending value." And it can not be contended that the

capital defendant is comparably protected by the concession that proof of

the facts that would spare his life need only be “established by a preponder-

ance of the evidence,” Ohio Rev. Code Ann. §2929.04(B) (1974). For, by that

standard he must die even if it is as likely as not that he is, by the

calculus of the statute, deserving of mercy.

In view of the gravity of the sentence, and in view of the

need of courts and legislatures across the nation to know more precisely

what the Eighth Amendment requires of "the procedure employed by the State

to select persons for the unique andirreversible penalty of death," —" i+

is incumbent upon this Court to consider the rigidity of Ghio capital

sentencing process, its isolation from "the quussiansn of the cumniia,™—!

its chilling effect upon the right to trial by jury; its allocation of the

burden of proving facts mandating execution and the combined prejudicial

effect of these factors upon the defendant accused of a capital crime. In

view of the obvious cruelty of the sentence, Furman v. Georgia, supra,

(concurring opinion of Mr. Justice White,) it is incumbent upon this Court to

consider whether it may be imposed upon one whose capability does not exceed

that of this petitioner.

35 / Gregg v. Georgia, supra,

36/ Ia.

II. PETITIONER SHOULD NOT BE PUT TO DEATH WITHOUT THE VOTE

QF THE PEOPLE OF OHIO.

The Eighth Amendment to the Constitution of the United States

forbids “cruel and unusual punishments."

The Tenth Amendment to the Constitution of the United States

guarantees that:

"The powers not delegated to the United States by the

Constitution, nor prohibited to it by the States, are reserved to the

States, or to the people.” (Emphasis supplied.)

The people should exercise the power as to whether petitioner

should die.

If not by plebescite, at least, a jury of the people should

decide his fate.

See, propositions I.C. through E., supra.

-34-

III. THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER

PETITIONER'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY GUARANTEED BY THE

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION WAS DENIED BY THE TRIAL COURT'S REFUSAL TO GRANT HIS CHANGE OF

VENUE MOTION MADE ON GROUNDS OF PREJUDICIAL PRE~TRIAL PUBLICITY.

The Ohio Supreme Court held that there was "no abuse of

discretion in the denial of thé defense's motion for a change of venue."

State v. Bayless, 48 Ohio St. 2d 73, 99 (1976).

Petitioner submits that the trial of his case, over objections

as to the propriety of the local forum, clearly violated and substantially

prejudiced his rights to a fair trial and due process of law. See, U.S.

CONST., amends. VI and XIV.

Petitioner contends that the trial court camitted prejudicial

error in denying the defense motion for a change of venue.

| It is an established constitutional right that where there is

a reasonable likelihood that prejudicial news prior to trial will prevent

a fair trial, the trial judge should either continue the case until that threat

abates, or transfer the case to another county not so permeated with pblicity.

-35-

Sheppard v. Maxwell, 384 U.S. 333, 35 Ohio Ops. 2d 431 (1966) and Groppi v.

Wisconsin, 400 U.S. 505 (1971). See also, State v. Fairbanks, 32 Ohio St.

2d 64, 61 Ohio Ops. 2d 241, 243-244 (1972).

Petitioner made numerous motions requesting a change of venue and,

alternatively, requested a continuance of the trial. See, Tr. I at 33-41 and

Tr. VI at 1397-1406. See also, Defendant's Motion for Change of Venue or

Change of Venire filed March 18, 1974, and Defendant's Motion for Extension

of Time for Trial filed April 15, 1974. The mandated protections of

Sheppard were not afforded this appellant.

A defendant is not required to establish any specifically

identifiable prejudice flowing from extensive pretrial publicity. Sheppard

v. Maxwell, supra and State v. Fairbanks, supra. Petitioner was required to

show, and carried “the burden of showing essential unfairness [of the local

forum] as a demonstrable reality." Adams v. United States ex rel McCann,

317 U.S. 269, 281 (1942). Petitioner demonstrated that "there has been

prejudicial publicity requiring action by the Court." Wansley v. Slayton,

487 F. 2d 90, 92 (C.A. 4 1973). After he made this showing, the trial court

was compelled by Sheppard and Fairbanks holdings to either change venue or

grant a continuance. Neither procedure was followed.

Petitioner recognizes that ordinarily a change of venue rests

largely with the sound discretion of the trial court. E.g., State v. Laskey,

113 Ohio App. 2d 91, 42 Ohio Ops. 2d 206, aff'd, 21 Ohio St. 2d 187, 50 Ohio

Ops. 2d 432 (1970). Such a motion is often properly denied; for example,

where a single newspaper article and several radio broadcasts, t= days

after defendant's arrest, are factual, noninfiamatory, and without distortion,

State v. Fairbanks, supra.

But the motion for change of venue was improperly denied in this

case, one in which numerous newspaper articles and television and radio

broadcasts permeated Summit County. The news coverage clearly created "a

reasonable likelihood that the defendant will not receive a fair and

impartial trial." Sheppard v. Maxwell, supra and State v. Fairbanks, supra.

A few examples from the record support the defendant's conclusion

that the accumulation of the publicity in this case "their very mass, their

repetition over the months of trial, ridiculed the guarantee this court mede

to him that he would receive a fair trial before an impartial jury ..."

Forsythe v. State, 12 Ohio Misc. 99, 41 Ohio Ops. 2d 104, 105 (C.P. Allen

Cty. 1967).

The Akron Beacon Journal, a newspaper having a total circulation

of approximately 173,097 daily and 210,191 Sunday, highly circulated in

Summit County, carried the following articles among others:

2/27/74 SUSPECT SEIZED IN SLAYINGS OF FUNERAL

DIRECTOR, WIFE

2/27/74 SISTER SLEPT THROUGH ARREST

2/27/74 FALLS WOMAN BELIEVES BAYLESS WAS HER ABDUCTOR

2/27/74 YOUTH GUILTY OF '70 KILLING

2/28/74 MEANS' WIDOW: ‘OH, MY GOD — THIS IS HORRIBLE’

2/28/74 HOW SUSPECT GOT BACK ON THE STREETS

2/28/74 ‘I HOPE TO BE DEAD TOMORROW' —- BAYLESS

2/28/74 GABALAC WILL PRESS 'CHAIR' FOR BAYLESS

3/1/74 A QUESTIONS TO HAUNT US: HOW COULD THIS HAPPEN?

3/1/74 BAYLESS WAS IN COURT WHILE STILL A FUGITIVE

3/1/74 GILLIGAN: THE SYSTEM DIDN'T FAIL

3/2/74 BAYLESS WAS 18 BEFORE SLAYINGS

3/2/74 PROSECUTOR: RESTRICT PRISONER INTERVIEWS

3/4/74 SYSTEM CODDLES CRIE

3/6/74 AKRON POLICE ASK CHANGE IN YOUTH WARRANTS

3/7/74 BAYLESS INDICTED IN ANTHONY DEATHS

3/8/74 ANTHONYS ‘LIVED THEIR CHRISTIANITY’

3/11/74 ANTHONY CHILDREN FUND REACHES $3,000

3/11/74 BAYLESS: ‘I'M NOT GUILTY'

~™

3/ll/74

3/12/74

3/18/74

3/19/74

3/21/74

3/27/74

3/28/74

4/1/74

4/3/74

4/5/74

4/11/74

4/15/74

4/17/74

4/18/74

4/19/74

4/20/74

4/22/74

4/23/74

4/24/74

BAYLESS BEING ARRAIGNED

BAYLESS PLEADS: ‘I'M NOT GUILTY'

(The trial court reportedly personally

called the Beacon Journal to inform it

it of case developments.)

LIE DETECTOR TEST FOR BAYLESS OUT?

BAYLESS BLAMES ANOTHER MAN

BAYLESS THREATENED FOR CUTS

HOWZE DENIES BAYLESS ACCUSATION IN SLAYINGS

INDICTED IN BURGLARLY (Howze)

TRIAL FIGURES WARNED AGAIN

THE JUDGE RATES A BOW

LET'S TIGHTEN THINGS UP

K-MART SECURITY BOLSTERED

CONFERENCE ON LOGAL POINTS SCHEDULED

IN BAYLESS CASE

HOWZE PLEADS INNOCENT TO BURGLARLY CHARGE

YOUTH COMMISSION DIRECTOR RESIGNS

BAYLESS LAWYERS GET 2ND COURT OK TO

QUIZ HOWZE

BAYLESS FILES CIVIL SUIT

DOUBT IS CAST ON CORRECTIONS STANDARDS

BAYLESS TO STAND TRIAL ON FELONY MURDER

COUNTS

CIVIL SUIT FILED IN BAYLESS CASE

MRS. BAYLESS: DIDN'T ASK TO LEAVE

BAYLESS JURY SELECTION BEGINS: REPORTER

QUESTIONED

(Wherein the trial court reportedly personally

informed the Beacon Journal, prior to

informing counsel, of the procedure to

be utilized on voir dire.)

5 JURORS SEATED IN BAYLESS CASE

8 MORE SELECTED FOR BAYLESS JURY

-38-

The record also reveals similar Cleveland Plain Dealer articles

and reports by other media.*

Additionally, it is a relevant constitutional consideration that

adverse publicity concerning a criminal defendant emanates from state

officials. United States ex rel Bloeth v. Denno, 313 F. 2d 364 (2nd Cir.

1963).

*See e.g., Cleveland Plain Dealer 4/23/74, MURDER TRIAL STARTS IN AKRON:

4724/74, JURY SELECTION FOR BAYLESS RESUMED; 4/30/74, JURORS PICKED IY

BAYLESS TRIAL; 5/1/74, JURY IS SELECTED IN AKRON FOR MURDER TRIAL OF BAYLESS;

5/2/74, BAYLESS DROVE SLAIN COUPLE'S CAR, WITNESS SAYS; 5/4/74, FATAL BULLETS

MATCHED TO GUN BAYLESS HAD, EXPERT TESTIFIES; 5/29/74, JUDGE WEIGHS LIFE OR

DEATH FOR BAYLESS; 5/30/74, BAYLESS SENTENCED TO DIE IN CHAIR; LAWYERS APPEAL;

and finally, 5/30/74, LUCASVILLE DELAYS ELECTRIC CHAIR HOOKUP. See also,

numerous cartons of tapes and scripts from television and radio stations.

-39-

As the testimony of an Akron Beacon Journal newspaper’ reporter

indicated, the trial judce himself called the media and created same of the

publicityin this case.

Let's goon. There's one March ll, Page A-l,

I do believe.

I have it.

In there, there is a statement indicating that

Judge Barbuto called the Beacon Journal. Do

you see that particular part of it?

I do.

And did you write the article in hand?

Yes.

I will ask Mr. Montague, is that article

accurately quoted?

Yes, it is.

You know of your own knowledge the Judge did

call the Beacon Journal, is that correct?

That's correct.

Would you go to the April 20th article?

(Nods head.) |

Did you write that article?

Yes, I did.

Would you read the portion of the article that

I pointed out to you?

It begins, "Barbuto tald the Beacon Journal

Friday he will order the Prosecution and

Defense to restrict initial ioni

of prospective jurors to the issues of capital

punishment and pre-trial publicity."

That is a correct statement by the Court?

It's paraphrase of what he told me, yes.

Do you recall specifically the exact words?

No, I don't. I'd have to refer to my notes.

(Tr. II at 278-282)

cuch conduct by the trial court was in sharp contravention of

that court's expressed concern of control over the attorneyS. See Tr. I at

6-7.

The prosecutor's public comments also generated publicity in

‘CHATR' FOR BAYLESS" and Tr. Vi at 1402-1403.

of the massive publicity and the manner of same of its creation.

the trial court chose to postpone ruling upon the defendant's

ction for a change of venue until after an attempt to impane! ® JW: This

procedure is not without same support. State v. Sheppard, 165 Ohio St. 293,

59 Onio Ops. 398 (1956), rev'd., 384 U.S. 333 (1966). See Tr. I at 23A.

ut this procedure naturally would make the trial court reluctant to Chan?

venue, especially after expending the time to examine nearly one Tundro

veniremen.

indeed the trial court's caments in another of its criminal

cases cast some doubt on whether serious consideration was ever given

appellant's motion to change venue.

MR. KRISTOFF: Only too happy to. I will search

the file diligently.

COURT: Give it to him before you leave

I can say, set it down for trial

immediately after this trial of

Carl L. Bayless, within the next

[State v. Vara, C.P. Summit County

No. 73-3-225, April 29, 1974

-4]-

This exchange occurred in the unrelated Vara case on Monday,

April 29, in the trial court. At this time the woir dire of potential

jurors for the Bayless case had not yet been completed. A motion for change

of venue was, at least arguably, under consideration. Nevertheless, the

trial court "set [the above captioned case] down for trial immediately

after this trial of Carl L. Bayless within the next two weeks ..."

[Emphasis added]

The next day, April 30, defense counsel's argument for change

of venue fell on deaf ears and the trial court formally overruled the motion

to change venue. Tr. VI at 1397-1406.

Even if the trial court was properly waiting to determine the

validity of petitioner's motion to change venue until after the complete voir

dire examination, the results of that examination alone should have compelled

a change of veme.

In the instant case at least eleven (11) veniremen were excused

because pre-trial publicity helped them to form an opinion as to guilt or

innocence. . The trial court itself noted "at least 8 and possibly 9 were

excused for that very reason [prejudicial publicity.]" Tr. VI at 1406.

Indeed, even same of the jurors actually seated in the case expressed an

awareness of the facts of this case.*

See Tr. II at 390-419; Tr. III at 763-785; Tr. IV at 820-840, 863-868, 885-

902, 1030-1042; Tr. V at 1097-1109, 1158-1160 and Tr. VI at 1347-1366,

1385-1396.

Tr. II at 353-368, 419-441, 441-458; Tr. III at 599-618, 657-677, 694-711,

721-740; Tr. IV at 912-935; Tr. V at 1043-1067, 1187-1208, 1208-1234,

1234-1246; Tr. XI at 2624.

-42-

The publicity concerning petitioner and the crimes with which he

was charged was intense in Summit County. It is reasonable to assume that

in other parts of the State the coverage of the crimes was not as unfavorable

to him. For example, newspaper coverage of this case in the southern

counties was almost nonexistent.

Newspaper stories and public interest in Summit County regarding

this case moved beyond merely the "facts" of the case. The "Bayless"

case served as an "example" of an alleged "failure" of the State's correctiona!

procedure.

This Court has declared that no defendant should be punished

for a crime without "a charge fairly made and fairly tried, in a public

tribunal free of prejudice, passion [and] excitement." Chambers v. Florida,

309 U.S. 277 at 236-37 (1940) [Emphasis added].

The jury's verdict must be "based on evidence received in open

court, not fram outside sources.” Sheppard v. Maxwell, supra, 384 U.S. at

351. See also, Groppi v. Wisconsin, supra.

Notwithstanding thése plain constitutional commands, the trial

court rejected petitioner's claim that he could not receive a fair and

impartial trial in Summit County. Tr. VI at 1405-06.

Petitioner submits that the trial court's singular reliance on

the jurors’ oaths was inappropriate to determine when the Fourteenth

Amendment requires a change of vere or continuance. Compare, Sheppard v.

Maxwell, supra, and State v. Fairbanks, supra, with Tr. VI at 1405-1406.

Petitioner clearly made a convincing showing that Sumit County

was inflamed against him by prejudical publicity. The voluminous amount of

documentation of this publicity alone indicates a "reasonable likelihood

that prejudicial news prior to trial [would] prevent a fair trial."

Sheppard v. Maxwell, supra. Petitioner does not suggest that publicity

per se mandates a change of venue; he does urge that in the face of this

~43=

massive body of publicity there was a "reasonable likelihood" that publicity

would prevent a fair trial. A showing of identifiable prejudice fram such

publicity simply is not necessary. State v. Fairbanks, supra and Forsythe v.

State, supra.

The extent of pre-trial juror knowledge in this case, and the

resulting excusals because of such knowledge, add to the proposition that a

"reasonable likelihood” existed that the publicity would impair defendant's

right to a fair and impartial trial.

Early in this litigation, the alternative procedural mandates

of Sheppard v. Maxwell, supra, were pointed out to the trial court. See

Tr. IA at 1-4. The trial court failed to follow either of these procedures.

The obvious prejudicial effect of pre-trial publicity and the results of

impanelling a jury in Summit County were prejudically disregarded.

Denial of petitioner's motion for change of venue violated his

"Sige ccce WD cee B fair trial by a panel of impartial, ‘indifferent’

jurors", guaranteed him by the Sixth and Fourteen Amendments. Sheppard v.

Maxwell, supra; State v. Fairbanks, supra; Estes v. Texas, 381 U.S. 532

(1965); Beck v. Washington, 369 U.S. 541 (1963); Irvin v. Dowd, 366 U.S. 717,

722 (1961); Chambers v. Florida, supra at 236-37 (1940).

The trial court clearly cammitted substantial and prejudicial

constitutional error in denying petitioner's motions for change of venue or

for a continuance.

IV. THE COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE EXCLUSION FOR CAUSE

OF EIGHT VENIREMEN ON THE GROUNDS OF

THEIR EXPRESSED ATTITUDES TOWARD THE DEATH

PENALTY VIOLATED PETITIONER'S RIGHTS

UNDER THE SIXTH OR FOURTEENTH AMENDMENT

TO THE CONSTITUTIGCN OF THE UNITED STATES.

The record below presents important issues concerning the

constitutionality of excluding persons who oppose capital punishment. from

serv ice on trial juries in Ohio capital cases. The Supreme Court of Ohio

held that exclusion for cause of eight veniremen here was not prejudicial or

-44-

unconstitutional under this Court's holding in Witherspoon v. Illinois,

391 U.S. 510 (1968), observing that "At best, however, this passage [39] U.S.

at 522-23, n.21) is dictum as applied to a statutory scheme, such as Ohio's,

which does not permit the jury to consider sentencing. "48 Ohio St. 2d at

91-92. That holding presents issues of general significance, which should be

determined by this Court.

Notwithstanding the clear mandates of Witherspoon v. Illinois,

391 U.S. 510 (1968), as recently reaffirmed in Davis v. Georgia, 97 S. Ct.

399 (1976) the trial court upheld the exclusion of eight veniremen on the

ground that they were opposed to capital punishment.

Witherspoon held that "[i]f the voir dire testimony in a given

case indicates that veniremen were excludedon any broader basis than [that

outlined in Witherspoon] ..., the death sentence cannot be carried out.”

391 U.S. at 522 n. 21 [emphasis added]. See also, Maxwell v. Bishop,

398 U.S. 262, 266 (1969) and Boulden v. Holman, 394 U.S. 478, 482 (1968).

The Witherspoon-Davis rationale must be given full effect under

Ohio's new criminal code.

A ae

See Tr. II at 310-314; Tr. III at 713-717 and 717-721; Tr. IV

at 903-911; Tr. V at 1145-1153 and Tr. VI at 1301-1313. The trial

court granted defendant a standing objection to the propriety of

this inquiry and removal. See Tr. II at 311-313.

The proper application of the Witherspoon rules to the present

case commands that petitioner's death sentence not be carried out.

Witherspoon firmly established this requirement, applicable to

all cases in which a defendant potentially faces a sentence of death.

“[A] sentence of death cannot be carried

out if the jury that imposed or recommended

it was chosen by excluding veniremen for

cause simply because they voiced general

objections to the Ceatn penalty or expressed

conscientious or religious scruples against

its infliction. No defendant can

constitutionally be put to death at the hands

of a tribumal so selected.”

391 U.S. at 522-523.

The number or veniremen wrongfully excluded on account of

scruples against the death penalty is irrelevant:

“The magnitude of a decision to take a human

life is probably unparalleled in the human

experience of a member of a civilized society;

indeed, many agree on moral or religious grounds

that it is incomprehensible that an advanced

society such as ours should yet engage in such

practice. Given the wightiness of the subject

involved, it really does not follow that the

improper exclusion of a relatively small number

of the total veniremen examined does not prejudice

the defendant's rights to an impartial cross-

section of the community. Where, as here,

unanimity of decision is required to impose the

death sentence, the stark reality is that one

improperly excluded juror may mean the difference

between life or death for a defendant. Although

a defendant certainly has no assurance that a

properly empaneled jury will not impose the

death penalty, it seems to us that in light

of the vast difference in treatment which may

result from the improper exclusion of a single

veniremen, even that degree of error is

prejudicial to the rights of a defendant in a

capital case." Marion v. Beto, 434 F. 2d 29,

32 (5th Cir. 1970).

This Court has reversed convictions when only three veniremen

were wrongfully excluded. See Segura v. Patterson, 403 U.S. 945 (1971),

rev'g. 402 F. 2d 246 (10th Cir. 1968) and Ladetto v. Massachusetts, 403 U.S.

947 (1971), rev'g. 254 N.E. 2d 415 (1969).

A number of other courts have held that the wrongful exclusion

of only one veniremen was reversible error. See, e.g., State v. Watson,

28 Ohic St. 2d 15, 57 Ohio Ops. 2d 95, 100 (1971), Woodards v. } ’

303 F. Supp. 690, 51 Ohio Ops. 2d 337 (S.D. Ohio 1969), aff'd 430 F. 2d 978,

55 Ohio Ops. 2d 405 (6th Cir. 1970) and In Re Hillery, 79 Cal. Rptr. 773,

457 P. 2d 656 (Sup. Ct. 1969).

In the instant case, petitioner submits that eight veniremen, _

merely one, were wrongfully excluded in violation of the Witherspoon mandates.

COURT: As the Court has said he has been

charged with aggravated murder.

In the event the State of Ohio

proves both the charge and speci-

fications in this case, in event

that they prove both, the ques-

tion of capital punishment or death

in the electric chair will come into

consideration. Now, are you

opposed to capital punishment?

A, [MRS. McGINNIS]: Yes sir, I am.

Q. And how long have you had this feeling?

A. Ever since I can remember, I guess.

Q. Are there any circumstances in which

you feel that capital punishment

should be invoked?

A. Well, I have always thought there

should be another way instead

of capital punishment.

Q. Well, let me say this to you. If

the facts in this particular case

were such, could you vote for the

consideration of the electric chair?

A. I might, but I don't know.

Q. Then your feeling against capital

punishment “is not firm, is that

what you're saying?

A. Yes, What I rean is, I think there

should be - there could be life

imprisonment, something like that,

instead of capital punishment.

Q. Instead of? mM

A. Yes.

Q. You would prefer that?

=47J=

A. Yes, I would.

Q. Is that what you're saying?

A. Yes. ”

Q. But do you also feel that there are

circumstances in which death in the

electric chair should be invoked?

A. I don't think so.

Q. You don’t think thc.e’s any case

in which a person should be sent

to the electric chair?

A. I don't think so."

Tr. III at 714-715.

The State then challenged this witness, defense counsel inquired

and, after the next witness was excused for cause because of capital

punishment views, this exchange occurred:

MR. PURNELL: Would the Court for the record

State which cause you're excusing

her for?

COURT: She vehemently objects to capital

punishment. Under no circumstances

could she change, nor under any

circumstances would she vote for

the death penalty. That's in both

cases, in the Court's opinicn.

MR. PURNELL: ss

COURT: McGinnis and Koltnow.”

Tr. III at 721 [Emphasis added].

Obviously, Mrs. McGinnis was not "vehemently" opposed to capital

punishment. She did not state that "under no circumstances could she change,

nor under any circumstances would she vote for the death penalty.

Witherspoon clearly holds thatit must be “unmistakably clear"

that a venireman would automatically vote against the imposition of capital

punishment or that his attitude toward the death penalty would prevent him

from making an impartial decision as to the defendant's guiit. 391 U.S. at

522 n. 21; Davis v. Georgia, 97 S. Ct. 399 (1976).

-48-

In the present case, the veniremen who were excluded for cause

because of their views toward the death penalty did state strongly their

opposition to capital punishment. However, their views cannot be said to have

been made “unmistakably clear."

The trial judge failed to firmly instruct veniremen as to their

duty to subordinate personal views to the carmands of the law as explained

by the Court. "Unmistakably clear" responses that veniremen would violate

that duty because of their views on capital punishment could not be received.

Doubts concerning the ability of a venireman to subordinate his

personal views to his oath as a juror to obey the law should be resolvad

against exclusion. Marion v. Beto, supra, 434 F. 2d at 32. As this Court

declared in Boulden v. Holman, 394 U.S. 478, 483 (1969):

"(I]t is entirely possible that a

person who has ‘a fixed opinion

against' or who does not ‘believe

in' capital punishment might

w nevertheless be perfectly able

as a juror to abide by existing

law --- to follow conscientiously

the instructions of a trial judge

and to consider fairly the

imposition of the death sentence

in a particular case."

Reserving doubts against exclusion is highly important; for under

Ohio's new criminal laws, the jury does not consider the penalty, only the

charge and specification. A venireman must be instructed that the law

requires him to “subordinate his personal views to what he ... [perceives]

to be his duty, to abide by his oath as a juror and to obey the law of the

State," Witherspoon v. Illinois, supra, 391 U.S. at 514-515 n. 7. Despite

general expressions of sentiment against the dealth penalty, it is still

possible for venireman "to follow conscientiously the instructions of a

trial judge."

Veniremen were never asked the precise nature of their general

sentiments against capital punishment or whether they could follow the

present law as explained to them by the trial judge. E.g., Tr. Ill at

713-717 and Tr. IV at 903-911.

-49-

The questioning of veniremen in this case was defective because

it confused them as to their exact duty under the new Ohio statute. They

were impliedly instructed that they would have responsibility for determining

the sentence. These instructions implied that, if statutory aggravating

circumstances were proved beyond a reasonable doubt, the death penalty would

be required.

But the new capital punishment statute does not automatically

require the imposition of a death sentence even if a statutory aggravating

circumstance is proved beyond a reasonable doubt. The trial court may decline

to impose the deat:. penalty on the grounds that mitigating circumstances

exist which mandate a lesser sentence. OHIO REV. CODE, §2929.04.

The trial court never clearly instructed each or all veniremn

that they would have no role in sentencing. The veniremen were left in the

dark as to their exact role under the Ohio procedure. Had they understood

that sentencing was not their responsibility, it is possible that they might

have been able to serve. But the voir dire examination did not enlighten

them. E.g., Tr. VI at 1301-1312; Tr. V at 1145-1153.

Witherspoon explicitly stated that a juror could not be excluded

for cause simply because he cannot bring in a death penalty in a "proper

case.

"[Veniremen} cannot be excluded for

cause simply because they indicate

that there are some kinds of cases

in which they would refuse to

recommend capital punishment." 391 U.S.

at 522 n. 21.

Nevertheless, veniremen were excused for cause, at least in

part, on the basis of their failure to imagine a proper case for the

imposition of the death penalty. See, e.g., Tr. III at 715, 719 and Tr. VI

at 1301-1312.

The exclusions in this case cannot be lightly brushed aside. In

1971, this Court reversed twenty-three cases from twelve state and federal

-50-

courts “insofar as they impose the death sentence." The cases were remanded

for further proceedings in light of Witherspoon, Boulden and Maxwell.

403 U.S. 947 (1971).

Merely because the state does not exhaust its peremtory

challenges does not justify improper exclusions of scrupled jurors. E.g.,

State v. Wigglesworth, 18 Ohio St. 2d 171, 47 Ohio Ops. 2d 388 (1969) rev'd

403 U.S. 947, on remand 28 Ohio St. 2d 28, 57 Ohio Ops. 2d 102 (1971).

Likewise, if the defense does not exhaust its peremptory

challenges, this does not prevent reversal where there are impermissible

exclusions. E.g., Childs v. North Carolina, 269 N.C. 307, 152 S.E. 2d 453

(1967) rev'd 403 U.S. 948 (1971) and Quintrana v. Texas, 441 S.W. 2d 191

(Tex. Cr. App. 1969) rev'd 403 U.S. 947 (1971).

Where there has been an improper exclusion, the judgment cannot

be preserved merely because the "totality of the record" or because of

voir dire examination as a whole did not "violate the spirit of Witherspoon."

E.g., Speck v. Illinois, 41 Ill. 2d 177, 242 N.z. 2d 208 (1968) rev'd, 403

U.S. 946 (1971); Jaggers v. Kentucky, 439 S.W. 24 580 (Ky. Ct. App. 1968)

rev'd 403 U.S. 946 (1971); Harris v. Texas, 457 S.W. 2d 903 (Tex. Cr. App.

1970) rev'd 403 U.S. 947 (1971) and Adams v. Washington, 76 Wash. 2d 650,

458 P. 24 558 (1969) rev'd 403 U.S. 947 (1971).

The fact that the trial judge was able to see and hear veniremen

Gnas not prevent 0 reverses) wien the venizemen’s responses axe egaivecal.

Aiken v. Washington, Wheat v. Washington, 75 Wash. 2d 421, 452 P. 2a 232

rev'd 403 U.S. 946 (1971).

The failure of the defense to object to an improper exclusion

does not constitute a waiver of Witherspoon rights and cannot prevent a

reversal. State v. Wigglesworth, supra; Harris v. Texas, supra.

The Witherspoon rule against exclusion applies where veniremen

state they do not believe in the death penalty but do not unequivocally state

that they would absolutely refuse to vote for its imposition in any case.

Ladetto v. Massachusetts, 356 Mass. 541, 254 N.E. 2d 415 (1969) rev'd 403 U.S.

Bla

947 (1971) [strong feelings against the death penalty"). Turner v. Texas,

462 S.W. 2d 9 (Tex. Cr. App. 1969) rev'd 403 U.S. 947 (1971) ["just don't

believe" in the death penalty]. Segura v. Patterson, 402 F. 2d 249 (10th Cir.

1971) rev'd 403 U.S. 946 (1971) ["I don't think I can bring in the death

penalty"); Funicello v. New Jersey, 52 N.J. 263, 245 A. 2d 181 (1968) rev'd

403 U.S. 948 (1971) ["I don't think so"; “unsure” as to capability of: voting

for death penalty].

The Witherspoon rule against exclusion also applies where the

ambiguous statement is as to the venireman's capability to return a verdict

of guilty. E.g., Wilson v. Florida, 225 So. 2d 321 (Pla. Sup. Ct. 1969)

rev'd 403 U.S. 947 (1971) [scruples "very well might" affect his verdict; I

"believe" I would refuse to return a verdict of guilty; I "would have

difficulty” in finding defendants guilty of the penalty were death] and

State v. Pruett, 18 Ohio St. 2d 167, 47 Ohio Ops. 2d 386 (1969) rev'd 403 U.S.

946 (1971) [veniremen evasive as to inability of returning verdict of guilty

where the penalty was death].

Witherspoon principles cannot be avoided by the good intentions

of the trial judge or the lack of specificity in the veniremen's statements.

The cnly possible ground for proper exclusion is an “unmistakably clear"

statement that the veniremen will “automatically” vote agaist the déath

penalty.

Where the statement can have any other connotation, or where it

is not obvious that the venireman understood the questions about his scruples

in relation to his duty to consider all penalties, any exclusion is improper.

Such improper exclusion of a single venireman is error mandating that this

Court vacate the death sentence.

-$3~

CONCLUSION

Petitioner prays that the petition for a writ of a writ of

certiorari be granted. ;

Respectfully submitted,

Cpa.

912 Centran Building

Akron, Ohio 44308

Attorney for Petitioner

Telephone (206) 535-3371

CERTIFICATE OF SERVICE

I hereby certify that on nis hoa of May, 1977, a copy

hereof was mailed to Stephan M. Gabalac, Esq., prosecutor for Summit County,

Ohio. I further certify that all parties required to be served have been

Vien 4

William R. Holland

served.

Note: Appendix A, Is the Opinion of the Court in

State v. Bayless, 48 Ohio St.2d (1976), and has

not been reproduced here.

/ -53- ’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.