Petition — Lockett v. Ohio

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RECEIVED

JUN 2° 1977

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S,

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-6997

SANDRA LOCKETT,

Petitioner,

THE STATE OF ONTO,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF OHIO

MAX KRAVITS

793 Pleasant Ridge

Rexley, Ohio 43209

JACK GREENBERG

JAMES M, NABRIT, IIT

JOBL BERGER

PEGGY C. DAVIS

DAVID &. KENDALL

10 Columbus Circle

Suite 2030

New York, New York 10019

ANTHONY G. AMSTERDAM

Stanford a tg ete Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

CITATIONS TO OPINIONS BELOW ..ccccccccccseseeeeeeeeeecess

JURITEDICTION wcccccccccccceccccccccccccceceseeseceeeeeces

QUESTIONS PREGENTED woccsccccccccccccccccccccceeceseecece

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........

DENTTIGRNE ccccccccccccccccccccccccecccecceceeeeesceeceeee

I. The Trial of Guilt or Innocenc@® ......cccceeeeenes

II. Death Qualification of the Jury .occcccccccccecees

iii. The Penalty Phase seer ee eee eee eee eee eee eee eee eee ee

HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED

BELOW ee ee ee ee ee eee ee ee ee

REASONS FOR GRANTING THE WRIT seeeeeeeeeeeeeeeeeee eee eeee

I. THIS COURT SHOULD GRANT CERTIORARI TO DETER-

MINE WHETHER THE PROSECUTOR IN SUMMATION

MADE IMPERMISSIBLE COMMENTS ON PETITIONER'S

FAILURE TO TESTIFY AND THEREBY VIOLATED HER

RIGHTS UNDER THE FIFTH AND FOURTEENTH AMEND-

II. THIS COURT SHOULD GRANT CERTIORARI TO CON-

SIDER THE CONSTITUTIONAL VALIDITY OF PETI-

TIONER'S SENTENCE or DEATH seer eeeeeeeeeeeeeeeeeee

INTRODUCTION eeeereeeeeeeeeeeeeeeeeeeeeeeeeeeeees

A. The Ohio Death Penalty Statutes Place

Unconstitutional Limitations Upon the

Consideration of Mitigating Circum-

atances seer eee ee eee eeeeeeeee eee eee eee ee eee

B. Death is a Disproportionately Severe

and Unconstitutional Sentence for One

Who Has Not Taken Life, Attempted to

Take Life, or Actually Intended to

Take Life eee eeeeeeeeeeeeeeeeeeeeeee ee ee eee

Go w nF -»

Cc. The Ohio Death Penalty Statutes Violate

the Sixth, Bighth and Fourteenth Anend-

mente in that They Deny the Capitall

Accused the Right to a Judgment of his

Peers as to the Existence of Mitigat-

ing Circumstances, and the Appropriate-

nese of the Penalty Of D@AtN cicccceeecreneennens

D. Ohio Capital Sentencing Procedures Im-

permiseibly Penalize Exercise of the

Rights to Plead Not Guilty and to Have

a Jury Trial eeeeueeeeeen ee eee eeeeeeeeeeeeeeeeeeee

E. Ohio Capital Sentencing Procedures Im-

permissibly Shift to the Defendant

Convicted of Aggravated Murder with

Specifications the Burden of Proving

Facts Which Distinguish Those Who May

Live from Those Who Muet Die *seeeeeepeeeeeeeeeeee

CONCLUSION *eeeeveeeneeeeeeeeeeereeeeeeereeeeeeee ee eeee

III. THIS COURT SHOULD GRANT CERTIORARI TO CON~

SIDER WHETHER PETITIONER'S SIXTH AND FOUR-

TEENTH AMENDMENT RIGHTS WERE VIOLATED BY

THE INSUFPFICIENTLY EXAMINED EXCLUSION FOR

CAUSE OF PROSPECTIVE JURORS WITH CONSCI~

ENTIOUS SCRUPLES AGAINST CAPITAL PUNISH

IV. THIS COURT SHOULD GRANT CERTIORARI TO CON~

SIDER WHETHER THE ONTO SUPREME COURT, BY

GIVING RETROACTIVE APPLICATION TO A NEW

CONSTRUCTION . ' OHIO REVISED CODE SECTION

2929.03(A) GO\ NING COMPLICITY, DENIED

PETITIONER'S RiGHT TO FATR WARNING OF A

CRIMINAL PROHIBITION AND THEREBY DEPRIVED

HER OF HER LIFE IN VIOLATION OF THE DUP

PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ....+65++

CONCLUSION *eeeeeeeeevn eee eeee ee eeee eee eee eee eee eee eee eee eee

= 44 @

Rage

Atkinson v. North Carolina, 403 U.S. 9468 (LOTL) coccces 49

Baxter v. Palmigiano, 425 U.G. 308 (1976) coccccccccces 30

hernette v. Tllinois, 258 N.B. 24 793 (1970),

FOV'd, 403 UB. 947 (1971) cacceccevsseseeveseeceees 53

Boulden v. Holman, 394 U.G. 478 (1969) ..cccccccceceuees 54

Boule v. City of Columbia, 378 U.S. 347 (1963) ..ccccees 59

Funicello v. New Jersey, 403 U.S. 948 (1L9O7TL) cecececces 49

Furman Vv. Georgia, 408 U.Ss. 238 (1972) eee eevee eee eeee 33, 46

Goins Vv. State, 46 Ohio st. 457 (1889) see eee eeeeeeeee 57

Gregg Vv. Georgia, 428 U.S. 153 (1976) seeeeeececeess+40,42, 44, 51

Griffin v. California, 380 U.S. GOD (1965) crcccccecues 30

Jurek v. State, 522 S.W. 24 934 (Tex, Crim,

App. 1975) seeeeeeeeeeeeeeeeeeeeeeaeeeeee eee eee eeeeee 40

Jurek v. Texas, 4286 U.G. 262 (1976) cecccccccececeeceeese 31,32,40

Lanzetta v. New Jerse@y, 306 U.G. 451 (1939) .cccccecces 59

Maxwell v. Bishop, 396 U.G. 262 (LOTO)ccccccccececeeees 54

MeGautha v. California, 402 U.B. 183 (LOTL) coccccccccs 40,47

O'Connor v. Ohio, 385 UB. 92 (1966) ceccsecceeeceeeuns 30

Proffitt v. Plorida, 426 U.S. 242 (1976) cescecseneeees 40

Rainsburger v. Fogliane, 360 F.2d 783 (CA9 1967)...... 49

Raley v. Ohio, 360 U.G. 423 (1959) wccccccccceeeeeveees 59

Harry Roberts v. Louisiana, _ U.S. , 45 LW

4564 (June 6, Srp POT ETETETIETITTITTTirrreerieirrrrirey 33,41

Stanislaus Roberts v. Louisiana, 428 U.S. 325

(1976) seeenveeeereeneeeneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 32,38

State v. Anderson, 30 Ohio Bt. 24 66 (1972) cuccecceves 54

State v. Bayless, 46 Ohio St. 24 73 (1976) ....+. 37,48,52,54,55

~ dii

State v. Bell, 48 Ohio Bt. 24 270 (1976) cucceceeceues 40,41

State v. Doty, 94 Ohio Bt. 258 (1916) cecccccececeeees 57

State v. Edwards, 48 Ohio St. 24 BL (1976) ccccccecncee 41

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

Case NOB. CAW634, 639 ceccccseeeeeeeeeeeeereeeeeeee 41

State v. Sandra Lockett, 49 Ohio St. 2d 48

(1976) eee eee eee eee eee eee eee eee eee eee eee eee 26, 54,57, 58

State v. Royster, 486 Ohio Bt. 24 BL (1976) ceveseeees 37,50

Stephens v. State, 420 Ohio Bt. 150 (1BB4) ceceeeeeees 56,57

United States v. Jackson, 390 U.S. 570 (1968) ceseeees 49

Wigglesworth v. Ohio, 403 UB. 947 (LOTL) ceveeeeeeeee 52

Witherspoon v. Illinois, 391 U.S. 510 (1968)........ 28,52,53,54

Woolweaver v. State, 50 Ohio Bt. 277 (1893) ceceencees 57

Woodson v. North Carolina, 426 U.S. 280

(1976) eseepeeeeepeeeeeeeeeeeeeeeeeeeeeeeeeee ee eeeeee 32,33,38,41,

42,46,51.

OTHER AUTHORITIES

AMERICAN LAW INSTITUTE, MODEL PENAL CODE §201.6

(P.O.D, 1962) *eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeaee 34

BOWERS, EXECUTIONS IN AMERICA is] (1974) *eeevneeeeeneeneeeneenee 46

Lehman & Norris,

*eeeeeeeweeeeeeeeeeeaeeeaeeeeeeeaeeeeeaeeeeeee 36,47

eevee eeveeeeeeee eee eeeeeeeeeaeeee ee ee eee ee eee eee 4

-~iv-

VQVQVQKTQrtKr ae

RECKIVED

JUN 2°7 197

OFFICE OF THe CLEHK

IN THE SUPREME COURT, US.

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 16-

SANDRA LOCKETT,

Petitioner,

THE STATE OF OHIO,

Respondent.

ne Om Oe me me ae me me ee oe om mm ee Oe ae me ee Om a oe me

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

COURT OF OHIO

TIItititiiiitttitiittiittttitttttttt ttt

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of the State of Ohio

entered December 30, 1976, cehearing denied January 28,

1977,

CITATIONS TO OPINIONS BELOW

The opinions of the Ohio Gupreme Court are reported at

49 Ohio 6t.2d 48 (1976) and attached as Appendix A.

JURISDICTION

Jurisdiction of this Court is invoked under 286 U.S.C.

Bec. 1257(3), petitioner having asserted below and asserting

here deprivation of rights secured by the Constitution of the

United States.

QUESTIONS PPRFSONTED

Whether the prosecutor in summation made

impermissible comments on petitioner's failure to

testify and thereby violated her rights under the

Fifth and Fourteenth Amendments.

Whether petitioner's sentence of death is

constitutionally valid.

a) Whether the Ohio death penalty

Statutes place unconstitutional

limitations upon the consideration

of mitigating circumstances.

b) Whether death is a disproportionately

severe and unconstitutional sentence

for one who has not taken life,

attempted to take life, or actually

intended to take life.

c) Whether the Ohio death penalty

Statutes violate the Sixth, Eighth

and Fourteenth Amendments in that

they deny the capitally accused the

right to a judgment of his peers

as to the existence of mitigating

circumstances, and the appropriate-

ness of the penalty of death.

d) Whether Ohio capital sentencing

procedures impermissibly penalize

exercise of the rights to plead not

guilty and to trial by jury.

e) Whether Ohio capital sentencing

procedures impermissibly shift to the

defendant convicted of capital murder

with specifications the burden of

proving facts which distinguish those

who may live from those who must die.

Whether petitioner's Sixth and Foureteenth

Amendment rights were violated by the in-

sufficiently examined exclusion for cause of

prospective jurors with conscientious scruples

against capital punishment.

Whether the Ohio Supreme Court, by giving

retroactive application to a new construc-

tion of Ohio Revised Code Section 2923.03(A)

governing complicity, denied petitioner's

right to fair warning of a criminal prohibi-

tion and thereby deprived her of her life

in violation of the Due Process Clause of

the Fourteenth Amendment.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Fifth, Sixth, Eighth 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. Sec. 2903.01 (Page 1975). 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 rubbery, aggravated burglary or

burglary or escape.

guilty of aggravated murder, and shall be

punished as provided in section 2929.02 of the

Revised Code.

Ohio Rev. Code Ann. Sec. 2923.03 (Page 1975).

Complicity.

(A) No person acting with the kind

of culpability required for the commission

of an offense, shall do any of the following:

(2) Aid or abet another in committ-

ing the offense.

* *

(F) Whoever violates this section is

guilty of complicty in the commission of an

offense, and shall be prosecuted and

punished as if he were a principal offender.

A charge of complicity may be stated in

terms of this section or in terms of the

principal offense.

Ohio Rev. Code Ann. Sec. 2929.02 (Page 1975).

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.

oe o ®

=-3-

Ohio Rev. Code Ann. Sec. 2929.03 (Page 1975).

Imposing sentence for a capital offense.

(A) If the indictment or count

in the indictment charging aggravated 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 aggravat-

ing 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 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 must be proved

beyond a reasonable doubt in order to support a

guilty verdict on such specification, but such

instruction shall not mention the penalty which

may be the consequence of a guilty or not guilty

verdict on any charge or specification.

the indictment charging aggravated murder contains

one or more specifications of aggravating circum-

Stances listed in division (A) of section

2929.04 of the Revised Code, then, following a

verdict of guilty of the charge but not guilty of

each of the specifications, the trial court shall

impose sentence of life imprisonment on the

offender. If the indictment 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 specifi-

cations, the penalty to be imposed on the offender

shall be determined:

(1) By the panel of three judges

which tried the offender upon his waiver

of the right to trial by jury;

(2) By the trial judge, if the

offender was tried by a jury.

(D) When death may be imposed as a

Penalty for aggravated murder, the court shall

require a pre-sentence investigation and a

psychiatric examination to be made, and reports

submitted to the court, pursuant to section

2947.06 of the Revised Code. Copies of the

reports shall be furnished to the prosecutor and

to the offender or his counsel. The court

shall hear testimony and other evidence, the

Statement, if any, of the offender, and the

argument, if any, of counsel for the defense

and prosecution, relevant to the penalty which

should be imposed on the offender. If the

offender chooses to make a statement, he is

subject to cross-examination only if he consents

to make such statement under oath or affirmation.

(E) * 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 finds 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 all impose sentence of death on the offender.

Otherwise, it shall impose sentence of life

imprisonment on the offender.

Ohio Rev. Code Ann. Sec. 2929.04 (Page 1975).

Criteria for imposing death or imprisonment for

a capital offense.

(A) Imposition of the death penalty for

aggravated murder is precluded, unless one or

more 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

presidency, or the governor or lieutenant

governor of this state, or the president-

elect or vice-president-elect of the

United States, or the governor-elect

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 election

according to law, or if he has filed a

petition or petitions according to law to

have his name placed on the ballot ina

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

the purpose of escaping detention, apprehension,

trial, or punishment 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 killing of or

attempt to kill another, committed prior

to the offense at bar, or the offense at

bar was part of a course of conduct

involving the purposeful killing of or

attempt to kill two or more persons by the

offender.

(6) The victim of the offense was

a law enforcement officer whom the offender

knew to be such, and either the victim was

engaged in his duties at the time of the

offense or it was the offender's specific

purpose to kill a law enforcement officer.

(7) The offense was committed while

the offender was committing kidnapping,

rape, aggravated arson, aggravated robbery,

or aggravated burglary.

(B) Regardless of whether one or more of

the aggravating circumstances listed in division

(A) of this section is specified in the indictment

and proved beyond a reasonable doubt, the death

penalty for aggravated murder is precluded when,

considering the nature and circumstances of the

offense and the history, character, and condition

of the offender, one or more of the following is

established by a prepondance [preponderance] of

the evidence:

(1) The victim of the offense induced

or facilitated it.

(2) It is unlikely that the offense

would have been committed, but for the

fact that the offender was under duress,

coercion, or 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 Rule Crim. Pro. 11 (C)(4) (Page 1975). Pleas of

guilty and no contest in felony cases.

With respect to aggravated murder

committed on and after January 1, 1974 the

defendant shall plead separately to the

charge and to each specification, if

any. A plea of guilty or no contest

to the charge waives the defendant's

right to a jury trial, and before accepting

such plea the court shall so advise the

defendant and determine that he understands

the consequences of such plea.

If the indictment contains no specifica-

tion, and a plea of guilty or no contest to

the charge is accepted, the court shall

impose the sentence provided by law.

If the indictment contains one or more

specifications, and a plea of guilty or no

contest to the charge is accepted, the court

may dismiss the specifications and impose

sentence accordingly, in the interests of

justice.

If the indictment contains one or more

specifications which are not dismissed upon

acceptance of a plea of guilty or no contest

to the charge, or if pleas of guilty or no

contest to both the charge and one or more

specifications are accepted, a court compos~

ed of three judges shall: (a) determine whether

the offense was aggravated murder or a

lesser offense; and (b) if the offense is

determined to have been a lesser offense,

impose sentence accordingly; or (c) if the

offense is determined to have been aggravat~

ed murder, proceed as provided by law to

determine the presence or absence of the

specified aggravating circumstances and of

mitigating circumstances, and impose

sentence accordingly.

STATEMENT

On January 15, 1975, four people drove to downtown

| Akron and parked near a pawnshop. R. II 60-61. Two of them,

| Al Parker and Nathan Earl Dew, needed money to return to their

home in New Jersey. R. II 90. The remaining two, petitioner

and her oider brother, were residents of Akron, R. 46, 116,

who had met Parker and Dew on a visit to New Jersey. R. II

31, 41. Dew had with him a ring with a pawnable value of

$100. R. II 19.

Petitioner's brother and Dew entered the pawnshop, R. II

61, and, as Dew was talking with the pawnbroker, Parker

entered the shop. R. II 62. Parker asked to see a pistol,

ibid; loaded it with bullets he had in his pocket, R. II 63;

and proceeded to announce a stickup, whereupon the pawnbroker

grabbed the gun, causing it to fire. R. II 63, 67, 73.

Petitioner had not entered the shop.

The pawnbroker, Sidney Cohen, died of a single gunshot

wound. R. II 15, State's Exhibit . "* Parker, Nathan

Earl Dew, petitioner and her brothe = e indicted for having

murdered him in the course of an aggravated rovsery.+/

Parker, by all accounts the person holding the murder weapon

at the time Mr. Cohen was killed, was to have been the

first tried. The day before his scheduled trial, Parker

1/ State v. Parker, Summit Co. Court of Common Pleas,

Case No. 75-1-97; State v. Dew, Summit Co. Court of Common

Pleas, Case No. 75-1-99; State v. James Lockett, Summit Co.

Court of Common Pleas, Case No. 75-1-98; State v. Sandra

Lockett, Summit Co. Court of Common Pleas, Case No. 75-1-96.

pleaded guilty to the crime of aggravated murder without

specifications (i.e., without the circumstances specified by

Ohio Rev. Code Ann Sec. 2929.03 as predicates for the penalty

of death). He had been told by his lawyers that “in return,"

R. II 87, he would be expected to testify against petitioner,

her brother and Mr. pew, 2/ R. II 88, and "to tell the

truth," RR. II 78, 87. The remaining three were convicted

of aggravated murder with one or more specifications.2/

The conviction and death sentence of James Lockett was

subsequently reversed by the Ohio Supreme Court because of

the trial court's failure to permit defense counsel to use,

for purposes of cross-examination and impeachment, a tape

recorded statement made by Parker shortly after his arrest in

2 Parker did not testify against Nathan Dew. Dew made

our statements to the police which were introduced at his

trial. The first three were exculpatory as to James Lockett,

Sandra Lockett and himself. State v. Dew, Summit Co. Court of

Common Pleas, Case No. 75-1-99, R. 354-4239, The fourth state-

ment introduced at trial admitted a prior discussion of a

pawnshop robbery with Al Parker outside the presence of

James and Sandra Lockett. Dew related that at the time of

the robbery, Sandra Lockett knew of Parker's plan and didn't

want Parker to go through with it. When the car stopped

near the pawnshop, Sandra Lockett told Dew not to go in but

"I told her I was just going in and pawn the ring and get

the hell out of there.” State v. Dew, supra at R. 433. The

night before the robbery, Sandra had objected to a robbery

and told Parker that Dew was only going in to pawn the ring.

State v. Dew, Supra, at R, 435.

3/ Although Parker entered his plea before the trials of Nathan

Dew, James Lockett and Sandra Lockett, he was not sentenced

until April 10, 1975, after the convictions of his three

co-defendants. State v. Parker, Summit Co. Court of

Common Pleas, Case No. 1-97.

which Parker exonerated all of his co-defendants. This error

was held prejudicial because “the state's case rested

squarely on the shoulders and credibility of the co-defendant

[Parker])..." State v. Lockett, 48 Ohio St.2d 71, 76 (1978).

Nathan Barl Dew was convicted, but spared a sentence of death

by a finding that his offense “was primarily the product

of mental deficiency," one of the three mitigating circum=

stances recognized by Ohio Rev. Code Ann. Sec. 2929.04

(by (3)

In the last of the trials involving the Cohen killing

petitioner, too, was convicted of aggravated murder with

specifications. She was sentenced to death by electrocution, R.

II 218, 251, and is the only one of the four now under a

sentence of death.

I. The Trial of Guilt or Innocence

Al Parker, who was 25 years old, R. II 24, had had five

years of schooling in Sumter, South Carolina, id., had been

convicted in New Jersey of burglary and possession of stolen

property, R. II 30, 91, 92, had served time for the former

charge, R. II 91, and was a fugitive on the latter charge.

He provided the only evidence tending to show that petitioner

4/ There was no attempt by petitioner's court-appointed

be attorneys to introduce this impeaching statement at her

trial.

James Lockett's retrial ended in a hung jury. No

third trial has been scheduled to date.

5/ The trial court found “beyond any doubt... that he was

a borderline mentally retarded person... (and) that the

offense was primarily product of this mental deficiency,"

State vs Dew, Summit Co. Court of Common Pleas, Case

°o. oo oe ’ R. 256-57. °

= 10 -

ee ae

a: SS

knew of or participated in plans to rob the pawnshop. He

testified that the following conversation occurred on the

day before the crime:

Was the pawnshop ever discussed?

The pawnshop, the first thing we was talking

about pawning the ring,

Was it ever talked about robbing the pawnshop?

Yes, sir,

What was said about robbing a pawnshop?

Mr. James Lockett and Nathan Dew go in; I wait

outside, then go in and get the gun to rob the

pawnshop.

What did Sandra Lockett have to say about all

this?

She was to show us the pawnshop, but she had to

Stay in the car. That was her brother. She

couldn't go in.

She knew the pawnshop operator, is that what

you meant?

Yes, sir.

Did you have any bullets on you at that particular

point?

Yes, sir.

Thursday night, Al, how was it determined who

would go in and get the gun at the pawnshop?

I was the one who had the bullets. Mr. James

Lockett tell me what to do == go in and ask the

man let me see the gun, drop two bulletts in

it.

What was Sandra supposed to do?

She was sitting out in the car.

What was James Lockett and Nathan Earl Dew

supposed to do?

= i} «-

A. Mr. Dew and Mr. James Lockett supposed to go in

and to get the man's attention like they are

rey a ring; and I was supposed to walk in

hind them and ask him to let me see the gun;

put the two bullets in it.

Q Now, did you ever ride by that particular pawn

shop Tuesday night?

A Yes, sir.

Q Who was with you when you rode by?

A Me and Mr. Nathan Dew and Miss Sandra Lockett,

Q Was anything said by anybody when the three of

you went by the pawnshop?

Yes, sir.

What was that?

Miss Sandra Lockett told us that's the pawnshop

she's talking about."

R. II 56-57. He also testified that at about noon the

following day, R. II 58, the co-defendants had another conversa~

tion:

"Mr. James Lockett asked if we was still going to do it?

Everybody said yeah. ...Me, Mr. Dew, Miss Sandra

Lockett say yeah."

R. II 56. When they later drove “downtown” in Parker's car,

with Parker driving and petitioner giving directions, R. II

59-60, they

*"...went by the pawnshop two or three times... when

we get by, Miss Sandra Lockett said, that's the pawn-

shop."

R. II 60. Asked whether he had “any conversations with the

defendant Sandra" before leaving the car to go to the pawn-

shop, he said

"I told her, like two minutes after we was gone to

switch the car, to crank the car up."

R. II 61.

The balance of Parker's testimony, and the remainder of

the State's case against petitioner, concerned events follow-

ing the shooting and unrelated and tangentially related

events that preceded it,

Mr. Cohen sounded an alarm after the shot, R, II 64,

and the three men fled, R. II 65. Parker took the pistol

with him. He got in his car, which he said was running, and

Grove off with petitioner. R. II 66. Petitioner directed him

to her aunt's home, and on the way he told her:

".++IT went in there, asked the man to let me see the

gun; I put the two bullets in it and told him it was a

holdup. I told him it was a holdup. He snatched the

gun; the gun went off; he got hit."

R. II 67.7 Petitioner reportedly said nothing, but

took the gun, which Parker had placed under the armrest, and

put it in her pocketbook, Ibid. They stayed at the aunt's

home "15 to 20 (minutes); half hour at the most," and left in

a taxi which petitioner had called. R. II 68. Parker sat on

the passenger side; petitioner, behind the driver. R II 69,

Petitioner gave directions to her home, R. II 69, which,

according to the testimony of the cab driver, involved a

longer route than he would have taken and, unlike the route

he would have eaken, avoided the pawnshop, R. II 132-33,

Before they reached their destination, the taxi was stopped

by a police cruiser, at which point petitioner moved closer

to Parker and "whispered...that the gun was under the seat."

]

R.1I1 69-70. The taxi driver testified that two officers

6/ Al Parker also testified as to the unintentional nature

of the shooting at R. II 63 and 73.

7/ The gun was subsequently found under the driver's

seat of the cab. R. II 52.

= 33 -

had sat with Parker in the cruiser for a time, after which

one of them returned to the taxi to tell petitioner that they

were taking Parker in for questioning and that "the man

[Parker] wanted her to go with him.” R, IIT 130-31. At the

Station Parker said that he was from Chicago, and petitioner

said that Parker was renting a room with her mother. R. II

72. Police officers made a call to the Lockett household, R.

II 73, and released both suspects. RR, II 72, 74. Petitioner and

Parker returned to the Lockett household where they met

petitioner's brother and Dew. R. II 73. Parker testified

that at about ten o'clock that evening the police arrived,

and petitioner hid him and Dew in the attic. R, II 76=77.

Parker later returned to the home of Joanne Baxter, the woman

with whom he had been staying in Akron. R. II 75. He was

arrested there at about midnight. R. II 77,

Testimony regarding the events leading up to the

robbery included a recitation of the activities of the

co-defendants and Baxter over a four day period, during which

they stayed out all night at bars, R. II 32; bailed petitioner's

brother out of jail, R. II 41; were arrested for speeding,

R. II 45; talked about committing two unrelated robberies, R.

II 48-52; took petitioner to a Methadone Clinic, R. II 49;

and purchased and smoked marijuana. R. II 53.

Parker had met petitioner and Baxter in New Jersey

where they were visiting petitioner's stepmother and step-

sisters. R. II 109, 120. They were in a bar on a Friday

evening, and they and five or six other people were out

together until 6:30 the following morning. R. II 32. The

next evening Parker, Baxter and petitioner went out together

again. R. II 35. Petitioner and Dew, whom she had met at

the home of a friend of Parker, separated from the party

and Parker. Baxter and two of Parker's friends stayed at a

- 14 -

Petitioner refused on two occasions -- prior to commence-

ment of her trial, and after the major portion of Al Parker's

testimony =~ to plead guilty to aggravated murder without

specifications, and with the understanding that the aggravated

robbery charge and an outstanding forgery charge would be

dismissed. R. II 71-73, 78-79. She insisted, against the

advice of counsel, that her brother and James Earl Dew be

called as witnesses in her behalf, R,. Il 79-80, 147, 157,

Both men, following the advice of counsel, refused to testify

on the ground that their testimony might incriminate them. R.

Il 148, 158."

8/ (Continued)

"Club" until it closed at 1:45, and then spent the night at

a hotel. R. II 36. On Sunday evening Parker did not see

petitioner or Dew, but he and Baxter went out drinking. R.

II 38. On Monday morning the group went to Jersey City to

get petitioner's brother out of jail. His arrest was

unexplained except for the following testimony:

"9 Now, before you got James Lockett out of

jail had you ever had any conversation

with the defendant here...about jail?

A She told me that, ‘Al, they was locked up

in Jersey City.’

Q What are you referring to?

A Her, Mr. Nathan Dew, Mr. James Lockett."

R. I1 42. The group then drove to Akron, stopping to spend

the night in a Pennsylvania Holiday Inn. R, II 43-44, Each

of the two cars they were driving was stopped for speeding

and assessed a fifty dollar fine. R. II 45-46. Both Parker

and Baxter testified that on the Tuesday of their arrival in

Arkon, R. II 46, petitioner discussed with Parker, Baxter

and Dew the possibility of robbing two local businesses, R.

It 48, 51, lll, and, after making a stop at a methadone

clinic, R. If 50, 111, directed them to one of the proposed

robbery targets, R. II 52, 112. Neither robbery was attempt~-

ed or carried out. Baxter was dropped off to make a purchase

of marijuana, after which she, petitioner, Parker and Dew

returned to the Lockett household. R. II 53-54,

At this time, both James Lockett and Nathan Dew were

still awaiting mitigation hearings to determine whether they

° 1§ -

Petitioner did not take the stand. Initially, one of

her defense attorneys stated in the presence of the jury

that she would testify. R. II 148. However, the court was

subsequently informed outside the jury's presence that two

apparent attempts by defense counsel to persuade petitioner

to take the stand had been unsuccessful. R. II 150-51, 161.

Petitioney rera » da silent, acting on the advice of her

mother, who ex}, * .ssed, on the record, her dissatisfaction that

two attorneys whom she had sought to retain to represent her

daughter had not been permitted by court-appointed defense

counsel to take charge of and handle the case. R. II 151-154.

During closing argument the prosecutor stated:

What you heard with the State's wit-

nesses, witnesses for the State of Ohio, is

uncontradicted and unrefuted testimony by Al

Parker, Joanne Baxter, Mrs. Garrett, Ronda Reed,

the cab drivers involved. That's what you

heard -- uncontradicted, unrefuted evidence

from the witness stand. That's what you must

decide the case on, ladies and gentlemen. R.

II 186.

* a *

Aggravated robbery? Did the crime occur,

ladies and gentlemen? No doubt. Uncontradicted,

unrefuted that there was an aggravated robbery.

No evidence to the contrary.

Aggravated murder? Did that occur? Unrefuted,

uncontradicted testimony an. evidence that an

aggravated murder occurred... R. II 187.

* * *

9/ [Continued]

would be sentenced to death. State v. Dew, supra, mitigation

hearing May 21, 1975; State v. James Lockett, supra, mitiga-

tion hearing May 2, 1975.

See n. 2, supra, regarding the exculpatory nature of

the prior statements of Nathan Dew to the police.

- 16 -

Let's talk about the evidence. The evidence

uncontradicted and unrefuted that shows that this

women, this heroin addict participated in the

crimes of aggravated robbery and aggravated

murder...R. II 188.

* oe ue

Is Al Parker believable? Every witness

that came in here substantiated his story.

Joanne Baxter, the cab drivers, Mrs. Garrett,”

Ronda Reed, everyone -- uncontradicted, un-

refuted evidence.

Nothing. No evidence from the Defense.

Forget about their opening statement. They

didn't prove a thing they said they were

going to prove to you. R. II 192.

The jury was admonished not to “discuss or consider the

question of punishment," R. II 195, and instructed that

petitioner could be found to have killed purposely if she was

found to have been involved in a conspiracy to rob by force:

"A person engaged in a common design with

others to rob by force and violence an individual

or individuals of their property is presumed to

acquiesce in whatever may reasonably be necessary

to accomplish the object of their enterprise.

And if under the circumstances it may be reason-

ably expected that the victim's life would be in

danger by the manner and means of performing

the criminal act inspired, each one engaged in

the common design is bound by the consequences

naturally or probably arising in its furtherance....

If the conspired robbery and the manner of

its accomplishmet would be reasonably likely to

produce death, each plotter is equally guilty with

the principal offender as an aider and abettor in

homicide, even though the aider and abettor was

not aware of the particular weapon used to accom-

plish the killing. An intent to kill by an aider

and abettor may be found to exist beyond a reason-

able doubt under such circumstances."

II 201-02.

e 17 -

The jury deliberated for more than nine hours, R. II

214, 218, before finding petitioner guilty of aggravated

murder, “committed for the purpose of escaping detection,

apprehension, trial, or punishment for another offense,"

and "committed while... committing or attempting to commit,

or fleeing immediately after committing or attempting to

commit... aggravated robbery," and guilty of aggravated

robbery, R. II 218-20.

Trial counsel argued that a fair trial had been precluded

by petitioner's lack of confidence in her attorneys and her

domination by her mother, and moved for a new trial. R. II

227-237. The motion was denied, R. II 237.

II. Death Qualification of The Jury

On voir dire examination, the prosecutor had proceed-

ed to death qualify the jury. He asked "...because there

is a possibility of capital punishment we must ask this ques-

tion and that is, does anyone here have an abiding conviction

that is so strong against capital punishment that they could

not sit, listen to the evidence, listen to the law, make their

determination solely upon the evidence and the law without

considering the fact that capital punishment is only a possibil-

10/

ity in this case?" R. I 22. The trial court quickly took

10/ Earlier, the prosecutor had stated that death was

only a possibility because Judge Barbuto would make the

final decision as to punishment. R. I 22. Thus, the jury

was left free to believe that if it found petitioner guilty,

she would receive mercy because her role was relatively minor.

The jury was not informed that, under Ohio's death penalty

Statute, the "mitigating circumstances” that can save a

convicted defendant's life are severely limited.

- 18 -

control

after a

1l/

of the voir dire examination, R. I 24, and,

brief inquiry by the judge, four jurors were

11/

"COURT: Let me pursue this since the doors been

open, and I'm addressing myself to Jerry Smith,

Minnie Lee, Betty Tomaselli, Barbara Barton, Dorothy

Tiell, and Elizabeth -

MRS. BARTON: My name is Barbara Barton. I didn't

Say anything about capital punishment.

COURT: Alright. Dorothy Tiell. Those of you who

have expressed a strong feeling in regard to capital

punishment, the Court would like to ask you this.

Those of you who have responded, do you feel that you

could take an oath to well and truely try this case

because you have to take an oath if you were selected

as jurors in this particular case, could you take an

Oath and follow the law, or is your conviction so

Strong that you cannot take an oath, Knowing that a

possibility exists in regard to capital punishment?

Now, I will ask each and every one of you that. Jerry

Smith, could you take the oath?

MR. SMITH: No.

COURT: You could not take an oath in this par-

ticular case because of your religious conviction?

MR. SMITH: (Nods head).

‘COURT: Your conviction?

MR. SMITH: I just don't believe in capital punishment.

COURT: Therefore you could not and would not take an

Oath, is that what you are telling the Court?

MR. SMITH: Right.

COURT: Minnie Lee?

MRS. LEE: Yes.

COURT: Could you take an oath in this case because

of your convictions in relation to capital punishment?

MRS. LEE: I wouldn't like to because I don't believe

in capital punishment.

@ 19 «

1l/ Continued}

COURT: Well my question is, would you and could you

take an oath and would you follow your oath?

MRS. LEE: If I took it, I'd follow it but I wouldn't

want to take it, not with capital punishment.

COURT: I still have to ask you directly, Minnie,

would you take the oath, now that you know the

situation?

MRS. LEE: No.

COURT: You would not take the oath?

MRS. LEE: No.

COURT: Alright. Betty Tomaselli?

MRS. TOMASELLI: I would not.

COURT: You would not take the oath?

MRS. TOMASELLI: No, I would not.

COURT: Dorothy Tiell, would you take the oath?

MRS. TIELL: Yes, I would take it.

COURT: Alright. Elizabeth Yakubik.

MRS. YAKUBIK: No, I would not.

COURT: You would not take the Oath.

MRS. YAKUBIK: No.

COURT: Mr. Bayer, would you like to ask any ques-

tions? Have I covered every individual that has

expressed themselves in relation to Capital punishment,

who are opposed to capital punishment? I have

addressed myself to each and every one of you? Mr.

Bayer, would you make further inguiry of these

prospective jurors?

MR. BAYER: No, I don't think so, your Honor. You

mean the five that would not or could not take the

Oath?

COURT: Yes.

MR. BAYER: No, I have no questions.

MR. RUDGERS: He has no objections to excusing

them?

MR. BAYER: I have no objections.

- 20 <-

1l/ [Continued]

MR. RUDGERS: State would move to excuse those jurors

who just were examined and who have said they would

not take the oath.

COURT: Yes. The Court will excuse Jerry Smith,

Minnie Lee, Betty Tomaselli, Elizabeth Yakubik. The

reason why you are being excused, you must take an

oath or affirm in a criminal case, in a case to well

and truely try the case. Let me ask you this. I

didn't use the word affirm. Would any of you affirm

to well and truely try this case? Jerry?

MR. SMITH: No.

COURT: You would not?

MR. SMITH: (Shakes head).

COURT: Minnie?

MRS. LEE: No.

COURT: She would not. Betty Tomaselli?

MRS. TOMASELLI: No.

COURT: She would not. Elizabeth?

MRS. YAKUBIK: No.

COURT: She would not.

MR. RUDGERS: The State would renew it's [sic]

motion.

COURT: Alright. Thank you. I want to thank each

and every one of you for being very honest with the

Court and with the parties to this action because

you must take an oath or affirm, either one. Since

you feel that you cannot and will not, and I am

expressing myself, that you feel you will not take

the oath knowing the possibility here the Court will

excuse you for cause. Would you kindly report back to

the Jury Commissioner, please? She will excuse you

from there. There's some formalities you have to

comply with. Thank you very much." R. I 24-28.

@ 21 -

excused without questioning or objection by defense

12/

counsel.

III. The Penalty Phase

After denying petitioner's motion for a new trial, R. II

237, the trial judge conducted the penalty proceeding

provided by Ohio Rev. Code Ann. Sec. 2929.03(C) - (EB).

No testimony was offered during this proceeding. The

judgment of the court was based upon four written professional

reports -- two by psychiatrists and two by psychologists --,

a pre-sentence report, reports from the Akron Drug Abuse

I} Clinic, and arguments of counsel. All of the documents, with

the exception of the Clinic reports, were State's Exhibits,

13/

and were admitted upon stipulation. R. II 224-25, 238.

i 12/ At the time of this death qualification, only one of

the two appointed attorneys for Sandra Lockett was present

in the courtroom. He did not question or object to the

dismissal of jurors who had scruples against capital punish-

ment. The defense attorney who conducted most of the

voir dire examination entered later, R. I 32; apparently he

| had been in another courtroom on another case. R. I 96. He

made a belated objection to the dismissal of the death-scrupl-

ed jurors but did not request the opportunity to re-examine

them. R. I 73-4. He did not inquire of any other jurors as

to their scruples for or against capital punishment during

his examination.

13/ Apparently, defense counsel did not consult with

petitioner or review the reports with her prior to the mitiga-

tion hearing. The court inquired of the defendant:

"COURT: Before we get to the motion for a new trial,

Sandra Lockett, have you consulted with your Attorneys in

relation to these reports that we have just been

discussing?

- 22 -

The psychiatric experts had been instructed by the trial

court that “[t])he one question to be considered in this

case at this point is whether or not the Defendant has a

mental deficiency." Both psychiatric reports concluded

that petitioner suffered no psychosis or mental deficiency.

Neither of these brief reports contained anything nega-

tive about petitioner's life or character.

13/ [Continued]

DEFENDANT: No.

COURT: You have not?

DEFENDANT: No.

COURT: Do you concur with their position in regard

to stipulating these documents?

DEFENDANT: Uh huh.

COURT: I can't hear you?

DEFENDANT: Yes.

COURT: You do? In other words, what the Court wants

to say to you before you answer. The Court says to

you that you have the right to have these people that

we are talking about, Dr. Villalba, Dr. Gunter, Dr.

Hungerman, Daniel Reinhold, and Mrs. Denton appear

personally and testify. You have the right to

cross examine them in regard to their testimony, if

you so desire; or as suggested here by the Proscutor

and your Attorneys, that you will stipulate, you will

agree that this is what they would testify to and

there's no need for cross examination. Is that what

you are saying?

DEFENDANT: Yes.

COURT: Do you understand what the Court has said?

DEFENDANT: Yes.

COURT: Is there any question that you want to ask

the Court in regard to this?

DEFENDANT: No.

COURT: Okay. The Court will accept it.”

R. I 225-26.

- 23 -

The psychological reports were more comprehensive. The

first concluded that petitioner:

*...gave no indications of being a seriously

disturbed individual or even one who could be

described as an inadequate personality. She does

employ the defense of denial, and much of her

response seem to have a pollyanna effect."

The second reported that she was of low-average intelligence,

and summarized her personality as follows:

"The results portray Sandra as friendly,

well socialized, optimistic, sensitive, honest,

sincere, good humored, rational, good emotional

affect, and honestly aware of herself.

The only measured flaws were the negative

feelings [against her brother and Al Parker], a

carelessly optimistic outlook, a tendency to be

simpleminded as opposed to insightful, and a lack

of inclination to accurately assess the negative

implications of a negative situation -- in her

mind things always turn out good."

The report concluded with the following evaluation:

"It may easily be hypothesized that if

Sandra were from a different socio-economic

background, she would never have had difficulty

with the law.

In her own words her problems may exist to a

large degree because ‘'J‘m just too nice.'

The dominant theme in her personality seems

to be a need to nurture others. She wants to be

kind, happy, loving, and supportive. She doesn't

want disagreement, discord, anger, hurt, or

unnecessary pain in her relationships with

others. Her defense mechanisms seem to turn

difficulties into hopeful optimism, failure into

acceptance, destructive hurt into denial, and

disaster into disassociation from pain accompanied

by a rationalized optimism. The ‘Pollyanna’

outlook might summarize this dynamic.

oe 1 «

Her intelligence is adequate to deal with

this society. However, it may be hypothesized

that her need to avoid pain has resulted in a

handicap. She is deficient in her ability to

generalize concepts, and to perceptually organize

visual material. That suggests that there is a

possibility of orgaince (gic! deficiency. It also

suggests that Sandra wou probably not be

aware of the predicted ramifications and conse-

quences of some verbally presented concepts. She

tends to deal best with simple, familiar ideas.

Unfortunately, considering her situation,

this condition is probably not a mental deficiency.

Rather, it is a handicap which may hinder her

functioning in some situations until she can

compensate for the handicap.

Also, the evaluation doesn't support the

presence of a deficiency based on emotional or

personality factors.

In her favor, it should be noted that

Sandra's contention that she did not participate

in a plan to murder anyone is very supportable.

Her personality structure not only is unlikely

to result in unnecessary anger or violence, but

is in fact oriented against acting out or

hurting. It is very easy to picture her dis-

couraging any wrong doing which would hurt anyone,

especially someone she cares about. It is easy

to believe, for example, that she would not want

her friends to rob a store.

Finally, if she is to be returned to

society, her prognosis for rehabilitation is

very favorable. At present there is no special

program which would seem to be needed."

The pre-sentence report, prepared by a probation

officer, offered an “imprssion" in agreement with one of

the psychiatrists that petitioner was not suffering from

a psychosis, mental defect or mental deficiency.

- 2§ -

The Drug Clinic reports included the following summary by

petitioner's counselor:

"Sandra was admitted to this clinic on May 29,

1974 at which time she was gainfully employed

by Chrysler Corporation in Twinsburg. During her

stay in this clinic I met with Sandra on the

average of two to three times a week serving as

her counselor. Our counseling sessions were

focused mainly on her personal prolbems, and she

seemed to be very sincere about becoming drug

free, and getting ahead in life. I didn't have

trouble with her keeping our counseling appoint-

ments, and her overall attitude and general

conduct in, and about the clinic were good.

In my opinion and observations Sandra was

on the road to success as far as her drug

problem was concerned."

Defense counsel noted petitioner's marijuana and

methadone use and urged that petitioner's offense was the

product of a mental deficiency:

"Now I am very jealous of my reputation.

I do not believe in the seizing upon all of the

technicalities which have unfortunately in my

opinion grown up in our present body of law

concerning the protection of people accused of

crime. But I do believe that when the legislature

itself, probably when they passed the law having

in their mind, their collective mind, some

reservation about the morality of capital

punishment, provided an out that that provision should

be liberally interpreted for the benefit of the

accused."

R. II 247. Although the State had presented in its closing

to the jury the argument -- foreign to the record -- that the

motive for petitioner's crime was her “admitted” heroin addiction,

R. II 190, the prosecutor responded:

"I would agree that she probably has been on

Methadone. There's no question about that. No

question she might have been on heroin at one time or

= 2% «

another. I don't think there's any way of knowing

even from those reports whether she had any drugs --

we have to assume she didn't == I am saying extra

drugs the day this happened."

250.

The findings and judgment of the trial court were as follows:

"The Court finds that the evidence is

overwhelming in that there was no mental

deficiency or no psychosis -- this was not the

primary product of psychosis or mental deficiency

as required by the law. Therefore, the Court has no

alternative, whether the Court likes the law or not,

the Court has to enforce the law as he sees it and he

interprets it, and the Court will do so....

Therefore, it's the order of this Court

conforming to the verdict of the jury, that you be

taken to the Summit County Jail, and there safely

kept and within 30 days to be conveyed by the

Sheriff of Summit County to the proper institution,

and within the walls therein and within a certain

enclosure prepared for this purpose, and under

the direction of the Warden you shall be put to

death on September 5, 1975, having a current of

electricity of sufficient intensity to cause the

death to pass through your body..."

II 251-52.

= 27 -

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED BELOW

In her brief to the Ohio Supreme Court, petitioner alleged

that her Fifth and Fourteenth Amendment privilege against

self-incrimination was violated by the prosecutor's improper

comments to the jury on her failure to testify.

Brief of Defendant-Appellant, Ohio Supreme Court, pp. 70-73.

The Ohio Supreme Court held the statements in issue did not

constitute a comment by the prosecutor upon the failure of

the defendant to testify. State v. Sandra Lockett, 49 Ohio

St. 2d 48, 65 (1976).

Petitioner's Eighth Amendment claims were overruled

on the merits. State v. Sandra Lockett, supra, 48 Ohio

St. 2d at 63.

Petitioner's Sixth Amendment arguments involving the

applicability of Witherspoon v. Illinois, 391 U.S. 510

(1968) were also rejected on the merits. State v. Sandra

Lockett, supra, 48 Ohio St. 2d at 55-57.

Petitioner's Due Process claim involving denial

of the right of fair warning of a criminal prohibition

results from the Ohio Supreme Court's unforeseeable interpreta-

tion in this case of Ohio's new complicity statute, Ohio Rev.

Code §2923.03(A)(2) (Page 1975). In the opinions below the

scope of criminal culpability required by the statute was

vigorously contested, the dissent maintaining that the majority

had ignored the “clear meaning" of the statute. State v. Lockett,

Supra, 48 Ohio St. 2d at 67-71.

- 26 -

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER THE PROSECUTOR I

SUMMATION MA OF A T LA EAA Mie

E RE

PTH AND RTEE MEN

In this case petitioner chose not to take the stand.

In his summation, the prosecutor stated no less than six

times in rapid succession that the evidence was “uncontradict-

ed" and “unrefuted," R. II 186, 187, 188, 192, and then

added:

“Nothing. No evidence from the Defense."

R. II 192.

The prosecutor's statement was an obvious reference to

petitioner's reliance upon her constitutional right not to

testify. Perhaps the oft-repeated description of the pro-

secutor's evidence as “uncontradicted” and “unrefuted" might

have been understood by the jury, and thus excused by this

Court, aS a comment directed to the defendant's failure to pro-

duce other witnesses than herself. We frankly doubt that this

distinction is comprehensible to a lay jury; it rather smacks

too much of Pound's definition of the legal mind as capable of

thinking about one of two inseparable things without thinking

about the other. But we may pass over that question because,

if the prosecutor meant only to say that the defendant had

called no third-party witnesses, he surely had made that point

aplenty with his six “unrefuteds” and “uncontradicteds." The

addition of the comment, “No evidence from the Defense” can

hardly have been taken by the jury to refer to anything other

than the defendant's failure to testify.

- 29 -

hag’

The jurors were acutely aware that petitioner had elected

not to take the stand, since defense counsel had at one point

mistakenly stated in their presence that she would testify,

R. II 148, but she later failed to do so. That occurrence was

unfortunate, but the prosecutor's playing on it was inex-

cusable.

This Court has very plainly held that prosecutorial re-

ference to a defendant's failure to testify violates the

Fifth and Fourteenth Amendments. Griffin v. California, 380

U.S. 609 (1965); O'Connor v. Ohio, 385 U.S. 92 (1966); cf.

Baxter v. Palmigiano, 425 U.S. 308, 319 (1976). No prosecutor

could misunderstand that prohibition. Whether the prosecutor

here could evade it by the verbal hairsplitting of saying that

there was no evidence "from the defense" instead of "from the

defendant” is a question that this Court should review if the

rule of Griffin is not to be mocked and manipulated into

meaninglessness. Prosecutorial comment of this sort, so

obviously fraught with danger of being understood in its

forbidden sense, and so completely unnecessary unless the

prosecutor intended precisely that understanding, should not

be tolerated by this Court.

- 30 -

II. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER

THE CONSTITUTIONAL VALIDITY OF PETITIONER'S

SENTENCE OF DEATH.

INTRODUCTION

This case, involving a woman innocent of committing,

attempting or actually intending any violent assault, raises

issues of far-reaching significance concerning both the

range of circumstances under which the death penalty is

constitutionally tolerable, and the procedure by which that

most awesome of penalties may be meted out.

In reviewing the death penalty provisions of Florida,

Georgia, North Carolina and Louisiana, this Court determined

that informed, focused capital sentencing deliberations,

subject to reevaluation by a State's highest court, serve to

minimize the risk of arbitrary or inappropriate use of the

penalty; but that mandatory capital sentencing systems

impermissibly preclude particularized consideration of the

appropriateness of a sentence of death, and invite arbitrari-

ness. In upholding the death penalty provisions of the

State of Texas, this Court determined that a reviewable

inquiry concerning the future dangerousness of a capitally

convicted defendant properly encompasses sufficient analysis

of “particularized mitigating factors," such as youth

and lack of a serious prior criminal record, Jurek v. Texas,

428 U.S. 262, 272-73 (1976) (plurality opinion), to prevent

arbitrary or inappropriately severe death sentences.

The Ohio statute under which petitioner stands condemned

is distinctive in that it provides a sentencing proceeding --

@ 31 -

thereby avoiding the appearance of mandatoriness -- but narrows

the scope of sentencing deliberations so drastically as to

preclude an "individualized sentencing determination.” Jurek v.

Texas, supra, 428 U.S. at 271. Moreover, the Ohio death sentenc- |

ing procedure lacks the ameliorating influence of jury participa- |

tion and therefore stands isolated from the conscience of the

community; it penalizes exercise of the rights to plead not

guilty and to have a jury trial even as to the question of guilt

or innocence; and it shifts to the capitally convicted defendant

the burden of establishing those facts which separate the con-

demned from those who will be spared.

The Ohio Death Penalty Statutes

Place Unconstitutional Limitations

Upon the Consideration of Mitigating

Circumstances.

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

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

that contemporary standards of decency require “particulariz-

ed consideration of relevant aspects of the character and

record of each convicted defendant before the imposition upon

him of a sentence of death." Woodson v. North Carolina, supra,

428 U.S. at 303 (plurality opinion). The Court recognized that:

"A process that accords no significance

to relevant facets of the character and

record of the individual offender or

the circumstances of the particular

offense excludes from consideration in

fixing the ultimate punishment of death

the possibility of compassionate or

mitigating factors stemming from the

diverse frailties of humankind. It

treats 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 deata."

- 32 -

Id. at 304. Again, in Harry Roberts v. Louisiana, ’

U.S. , 45 LW 4584 (June 6, 1977), the Court stressed

that "it is essential that the capital sentencing decision

allow for consideration of whatever mitigating circumstances

may be relevant either to the particular offender or the

particular offense." Id. at 4585 (emphasis added). Moreover,

the Court acknowledged in Woodson that the several legislative

enactments allowing rigid application of the death penalty in

the wake of Furman v. Georgia, 408 U.S. 238 (1972), represent-

ed not renewed societal acceptance of undiscriminating

infliction of capital punishment, but rather attempts by the

States to conform to what were incorrectly thought to be the

requirements of Furman. Woodson v. North Carolina, supra,

428 U.S. at 298-99 (plurality opinion).

Examination of the Ohio death penalty statutes and the

history of their enactment establishes that they, like the

Statutes invalidated in Woodson and the two Roberts decisions,

are more rigid than contemporary standards of decency can

condone. They reflect not societal acceptance of such rigidity,

but rather an effort by the Ohio Legislature to meet criteria

that were wrongly supposed to be mandated by Furman.

In the wake of Furman, 20 of the 35 States that enacted

new death sentencing provisions made death the mandatory

consequence of a finding that a defendant was guilty of

e $3 -

14/

certain criminal conduct. 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 11 States enacted

Statutes following the example of the Model Penal Code

and directing consideration of aggravating and mitigating

circumstances in the process of determining sentence in a

capital itn These twelve jurisdictions, finding the

mandatory scheme eee harsh and anticipating that this Court

would approve capital sentencing discretion if that discretion

were were guided by standards, chose to focus sentencing

16/

deliberations upon a broad range of mitigating factors.

14/ Cal. Penal Code §190-190.03 (1977 com. pocket part);

Del.Code Ann., tit. 11, §4209(a)(1976 cum. supp.) (subsequent-

ly repealed); Idaho Code §18-4004 (1976 cum. pocket part);

Burns’ Ind. Stat. Ann. §35~-13-4-1 [10-3401] (b) (1975) (subsequent-

ly repealed); Baldwin's Ky. Rev. Stat., Ky. Penal Code

§§507.020, 532.010, 532.030 (May 1976 unit) (subsequently

amended); La. Rev. Stat. Ann. §14.30 (1977 cum. pocket part);

Miss. Code Ann. 1972, §§97-3-19, 97-3-21 (1976 cum. supp. )(sub-

sequently amended); Vernon's Mo. Stat. Ann. §§559.005,559.009(3)

(1976 cum. pocket part) (subsequently repealed); Nev. Rev.

Stat. §200-030(1), (5)(1975); N.H. Rev. Stat. Ann. 1974,

§630.1 (1974); N.M. Stat. Ann. 1953, §40A-2-1 (2d Repl. vol.

1972), 40A-29-2 (1975 supp.); N.Y. Penal Law §§60.06, 125.27

(1976 cum. supp.); N.C. Gen. Stat. §14-17 (1975 cum. supp. )(sub-

sequently amended); 21 Okla. Stat. Ann. §§701.1, 701.3

(1975-1976 cum. pocket part) (subsequently repealed); R.I.

Gen. Laws 1956, §11-23-2 )(1976. supp.); S.C. Code §§16-3-20,

16-52 (1976)(subsequently amended); Tenn. Code Ann. §§39-2402,

39-2405 (Repl. vol. 1975)(subsequently amended); Va. Code

1950, §§18.2.10(a) (Repl. vol. 1975), 18.2-31 (1976 supp. )(sub-

sequently amended); Wash. Rev. Code Ann. §§9A.32.045,

9A.32.046 (1977 Special pamphlet) (subsequently amended); Wyo.

Stat. Ann. §6-54(b)(1975 cum. supp.)(subsequently repealed).

15/ See AMERICAN LAW INSTITUTE, MODEL PENAL CODE §201.6

(P.O.D. 1962).

16/ In Arizona, Georgia, Illinois, Montana and Utah,

any factor deemed mitigating by the sentencing authority

@ 34

16/ [Continued]

could be considered, and could preclude imposition of a

Capital sentence. Ariz. Rev. Stat. §13-454(D) ((1973 supp.

pamphlet); Ga. Code Ann.§27-2534.1(b) (1974 cum. pocket

part); Smith-Hurd I11.Ann. Stat.c.38, §1005-8-l1A (1977 cum.

pocket part); Mont. Rev. Codes Ann. §94-5-105(1) (1974

interim supp. part3); Utah Code Ann. §76-5-202(1)(g) (1975

cum. supp.). And the mitigating factors considered in

the sentencing process in these twelve jurisdictions invar-

iably include factors having to do with the character

and record of the defendant whose life is at stake. Thus,

in Alabama, Arkansas, Colorado, Connecticut, 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. Code

of Ala. Recompiled, tit. 15, §342(9)(g) (1975 interim supp. );

Ark. Code §41-1403(4) (1975 special supp.); Colo. Rev. Stat.

1973, §16-11-103(5)(a) (1976 cum supp.); Conn. Gen. Stat.

Ann.§53a-46a (f£)(1) (1976 cum. pocket part); Fla. Stat Ann.

§921.141(6)(g) (1976 cum. pocket part); Nebr. Rev. Stat.

§29-2523(2)(d) (1975); Utah Code Ann. §76-3-207(1)(e) (1975

cum. supp.); 49 U.S.C..A §1473(c)(6) (1976). See also Cal.

Penal Code §190.3 (1977 cum. pocket part); N.M. Stat. Ann.

§40A-20-2 (1975 supp.); N.Y Penal Law §125.27 (1976 cum.

supp.). In all twelve jurisdictions, the prior criminal

record of the defendant must be considered. Codevof Ala.

Recompiled, tit. 15 §§342(8)(a) and (b), 342 (9)(a) (1975

interim supp.); Ariz. Rev. Stat §13-454(E) (1) and (2) (1973

supp. pamphlet); Ark. Code §§41-1303(1) and (2), 41-1304(6)

(1975 special supp.); Colo.Rev. Stat. 1973, §16-11-103(6) (a)

and (b) (1976 cum. supp.); Conn. Gen. Stat. Ann. §53a-46a(g)

(1) and (2) (1976 cum. pocket part); Fla. Stat. Ann.

§921.141(5)(a) and (b) and (6)(a) (1976 cum. pocket part);

Ga. Code Ann. §27-2534.1(b)(1) (1974 cum. pocket part);

Smith-Hurd Ill. Ann. Stat. c. 38, §1005-9-1A(3) (1977 cum.

pocket part); Mont. Rev. Code §94-5-105(a) and (b) (1973

special pamphlet); Nebr. Rev. Stat. §29-2523(1)(a) and

(2)(a) (1975); Utah Code Ann. §§76-3-207(a), 76-5-202(a)

and (g) (1975 pocket supp.); 49 U.S.C.A. §1473(c)(7)(B)(i)

and (ii) (1976). In Alabama, Arizona, Arkansas, Florida and

Nebraska, a broad range of mental and emotional disturbance

may be considered mitigating. Code of Ala. Recompiled, tit.

15 §342(9)(b) (1975 interim supp.); Ark. Code §41-1304(1)

(1975 special supp.); Fla. Stat. Ann. §921.141(6)(b) (1976

com. pocket part); Nebr. Rev. Stat.§29-2523(2)(c) (1975).

And limitations in 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. Code of Ala. Recompiled,

tit. 15 §342(9)(£) (1975 interim supp.); Ariz. Rev. Stat.

§13-454(F)(1) (1973 supp. pamphlet); Ark.Code §41-1304(3)

(1975 special supp.); Colo. Rev. Stat. 1973,§16-11-103(5) (b)

(1976 cum. supp.); Conn. Gen. Stat. §53a-46a(f)(2) (1976

cum. pocket part); Pla. Stat. Ann. §921.141(6)(£) (1976 cum.

pocket part): Nebr. Rev. Stat. §29-2523(2)(g) (1975); 49

U.S.C..A. §14 3(c)(6)(B) (1976).

= 3§ -

At the time of the Furman decision, a statute contain-

ing mitigating circumstances of the kind contained in the

Model Penal Code had passed the Ohio House of Representa-

tives and was pending before the Senate Judiciary Com-

mittee.” In light of Furman the Senate Committee felt it

necessary, in the words of two primary sponsors of the bill,

to "[r]lefine the House position by retaining the death

penalty, but remov[ing] from the judge and the jury as much

discretion as possible in the punishment determination

18/

procedure." Sentencing determinations in capital cases

were therefore taken from 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..."

19/

Ohio Rev. Code §2929.04(B)(3).

17/ Lehman and Norris, Some Legislative History and Comments

on Ohio's New Criminal Code, 23 CLEV. ST. L. REV. 8, 18

(1974).

18/ Id. at 20.

19 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 the

evidence:

"(1) The victim of the offense included or

facilitated it.

(2) It is unlikely that the offense would

have been committed, but for the fact that

the offender was under duress, coercion,

or strong provocation.

(3) The offense was primarily the product

of the offender's psychosis or mental defi-

ciency, though such condition is insuffi-

cient to establish the defense of insanity."

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 of allowing consideration of

the life 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 §2926.04. State v. Bayless, 48 Ohio St. 2d 73 (1976)

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

much discretion as possible in the punishment determination

a -- every person who is neithec psychotic nor

mentally retarded and who is convicted of a capital crime be-

comes part of “a faceless, undifferentiated mass to be sub-

20/ That Court noted:

"“(mjental deficiency is consistently defined

to mean a low or defective state of intel-

ligence."

Id. at 96, and deemed itself:

",... umable 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 constitut-

ing psychosis or amounting to insanity, falls

outside the proper scope of its authority to

assign responsibility and punishment for

criminal offenses."

Id. at 87. In State v. Royster, 48 Ohio St. 2d 381 (1976),

the court upheld, against a claim that the evidence re-

quired a finding of mental deficiency, a death sentence

imposed upon a defendant who “had an 1.Q. of 75 in 1962;

61 in 1966; and 54 in 1968," id. at 389.

21/ See note 18, supra.

@ 37 «

22/

jected to the blind infliction of the penalty of death"

without independent consideration of mitigating aspects of

his life and character.

Furthermore, the Ohio legislation precludes considera-

tion of most mitigating circumstances inherent in the crime

itself, permitting mercy only in the rare case in which

duress or victim inducement is present but does not constitute

a defense.-”

This Court's recognition that, under contemporary

Standards of morality, not "‘every offense in a like legal

category calls for an identical punishment without regard to

che past life and habits of a particular offender,'" and that

""individual culpability is not always measured by the category

of crime couniteea**=” is confirmed by the record of

capital legislation enacted since July of 1976. For legisla-

tures free of misconceptions engendered by the Furman opinions

have commonly allowed consideration of any circumstance deemed

25/

mitigating by the sentencer, and have in no case defined

22/ Woodson v. North Carolina, supra, 428 U.S. at 304

(plurality qpinion).

23/ See note 19, supra.

24/ Stanislaus Roberts v. Louisiana, supra, 428 U.S.

at 333 (plurality opinion).

25/ Ark. Code §41-1301(4)(9175 special supp.); Del. Code

§$4209(c) (1977 amendment); Ga. Code Ann. §27-2534.1(b) (1974

cum. pocket part); Smith-Hurd Ill. Ann. Stat. c.38 §1005-8-l1A

(1977 cum. pocket part); Burns Ind. Stat. Ann. §35-50-2-9(c)(7)

(1977 amendment); Miss. Code of 1972 §97-3-21(2) (1977 amend-

ment); Mont. Rev. Code Ann.§94-5-105(1)(1974 interim supp. )(un-

less victim was a peace officer killed while performing his

duty); N.C. Gen. Stat. §15A-2000(£)(9) (1977 amendment); Okla.

Stat. Ann. §701.10 (1976 cum. pocket part); Utah Code Ann.

§76-3-207(g) (1975 cum. supp.); Va. Code Ann. §19.2-264.3(B)

(1977 amendment); Wash. Rev. Code Ann. §9A.32.045(2) 1977

amendment).

- 36 -

mitigating factors as restrictively as did the Ohio legisla-

ioe

Petitioner's case amply demonstrates the rigidity and

the inhumanly narrow circumscription of mitigating considera-

tioms in the Ohio sentencing scheme. For she was condemned,

not in Spite of, but without consideration of:

- her youth;

- the unrefuted evidence of her generally good

character;

- the fact that she had never before been con-

victed of a violent crime (unless one counts

the crime of resisting an officer, for which

she was fined $25);

- her excellent prospects for rehabilita-

tion;

- the fact that she did not kill;

- the fact that her participation in the crime

was relatively minor; or

- the fact that the killing itself was not

intentional.

26/ The states specifically defining mitigating factors

are Code of Ala. Recompiled, tit. 15, § 342(9) (1975 interim

supp.); Ariz. Rev. Code Stat. §13-454(F) (1973 supp. pam-

phlet); Ark. Code §41-1304 (1975 special supp.); Colo. Rev.

Stat. 1973,§16-11-103(5) (1976 cum. supp.); Conn. Gen. Stat.

Ann. §53a-462(£), (1976 cum. pocket part); Fla Stat. Ann.

§921.141(6) (1976 cum. pocket part); Baldwin's Ky. Rev.

Stat. §532.025 §2(2)(b) (1977 temporary issue); Vernon's Mo.

Stat. Ann. §559.009.5.3 (1977 amendment); Nebr. Stat. §29-2523(2)

(1975); S.C. Code §16-52 (1977 amendment); Tenn. Code Ann.

§39-2406 (1976 revision); Wyo. Stat. §§6-54.1, 6-54.2, 6-54.3

(1977 revision); also Federal jurisdictions, 49 U.S.C..A

§§1473(6) (1976). A typical list of mitigating circumstances

is that of Nebraska, which includes (a) defendant's criminal

record, (b) unusual pressures or influences or the domination

of another person, (c) extreme mental or emotional disturbance,

(d) defendant's age, (e) the fact that defendant was an

accomplice in the crime whose participation was relatively

minor, (f) the fact that the victim was a participant in

the defendant's conduct or consented to the act, (g) impairment

of defendant's capacity to appreciate the wrongfulness of his

conduct or to conform his conduct to the requirements of law

as a result of mental illness, mental defect, or intoxication.

Nebr. Rev. Stat. §29-2523(2) (1975).

- 39 -

This result was possible because, unlike the Texas statute

which this Court sustained only through a liberal and non-liter-

al construction of its terms in Jurek (428 U.S. at 272-73),

the Ohio statute fails to provide a sentencing question which

is both open-ended and invariably applicable (let alone an

unlimited roster or a broad-ranging list of mitigating factors

as in Georgia or in Pioride).~” Any defendant, for any

number of reasons, may or may not be a future threat to

society, see Jurek v. State, 522 S.W. 2d 934, 939-940 (Tex.

Cr. App. 1975); Jurek v. Texas, supra, 428 U.S. at 272-74

(plurality opinion); but even the most mercy-deserving of

capital defendants may happen not to have acted under duress

or victim inducement or to have been psychotic or retarded.

A system which requires the condemnation of a woman

like petitioner, and furthermore provides no appellate

protection against her ees cries for evalua-

tion 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

27/ See Gregg v. Goergia, 428 U.S. 153 (1976) (plurality

opinion); Proffitt v. Florida, 428 U.S. 242 (1976) (plurality

opinion).

28/ Nothing in Ohio's post-Furman legislation alters the

act that “[{u]nder Ohio law, a death verdict may not be

reduced as excessive by ... the appellate court,” McGautha v.

California, 402 U.S. 183, 195 (1971).

Although the Ohio Supreme Court has said that mitigat-

ing circumstance provisions must "be liberally construed in

favor of the accused," State v. Bell, 48 Ohio St. 2d 270, 281

(1976), it has also held that it “will not retry issues of

- 40 -

offender and the circumstances of the particular offense as a

constitutionally indispensable part of the processs of inflict-

ing the penalty of death," Woodson v. North Carolina, supra,

280 U.S. at 304 (1976) (plurality opinion). This Court held in

Jurek that “[a] jury must be allowed to consider on the basis

of all relevant evidence not only why a death sentence should

be imposed, but also why it should not be imposed." 428 U.S.

at 271 (plurality opinion) (emphasis added). Such considera-

tion demands attention to “whatever mitigating circumstances”

may be relevant to the individual offender or to the specific

offense before extinguishing human life. Harry Roberts v.

Louisiana, supra, 45 LW at 4584. Ohio has not begun to meet

that constitutional requirement here.

28/ [Continued]

fact" going to sentence determination, but will only determine

“whether there is sufficient substantial evidence to support

the verdict rendered." State v. Edwards, 49 Ohio St. 2d. 31,47

(1976). Thus the Court has upheld a finding of an absence of

duress or mental deficiency, 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 home, 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 20 post-Furman

death sentences. It has reduced none. The citations of

these cases are appended hereto as Appendix B, infra.

An intermediate Ohio Appellate court has vacated the

death sentences of two co-defendants after finding that the

undisputed evidence established victim facilitation and

inducement under Ohio Rev. Code §2929.04(B)(1). State v

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

639 (conspicuously armed victim seeking to buy large quantity

of marijuana).

@ 41 «

Death is a Disproportionately Severe and

Unconstitutional Sentence for One Who Has

Not Taken Life, Attempted to Take Life, or

Actually Intended to Take Life.

Although the invalidity of petitioner's death sentence

may be established on the basis of the inadequacy of the

sentencing inquiry permitted in her case, see subsection

II(A),_ supra, the question is also squarely raised whether the

imposition of the death penalty in a case of this kind is "so

disproportionate in comparison to the nature of the defen-

dant's ... involvement in the capital offense as independent-

= eee oe. ewe

ly to violate the Eighth and Fourteenth Amendments." Woodson

v. North Carolina, supra, 428 U.S. at 305, n.40 (plurality |

opinion). Since the use of the death penalty against non-trigger+

men in common felony-murder situations like petitioner's

is demonstrably disproportionate, unjustifiable and inconsistent |

with contemporary standards of decency, the question is ripe

for resolution by this Court.

The “objective indicia," Gregg v. Georgia, supra, 428

U.S. at 173 (plurality opinion), to which the Court must look

in measuring a punishment against contemporary values establish

the unconstitutionality of the »xecution of non-triggermen.

Every American jurisdiction which has enacted guided-discre-

29/

tion legislation authorizing use of the death penalty

29/ For purpose of this analysis, the term guided-discre-

tion legislation is used to describe that which follows

roughly the ALI Model, see note 15, supra.

- 42 -

in felony-murder cases has either precluded execution of one

whose participation in the offense was relatively minor,~”

specified that a defendant's relatively minor participation

be considered and weighed as a mitigating utes

or left the capital sentencing authority free to grant mercy

on the basis of any mitigating nei And, although

we have no reliable documentation of the post-Furman responses

of jurors to whom legislatures have entrusted discretion to

express the conscience of the community in non-triggermen

cases, the history of use of the death penalty in the recent

past confirms without question that the combined effect of

the exercise of jury discretion and the discretion of execu-

tive and prosecuting officials -- who are, of course,

responsive to and empowered by the people -- has been de

facto abolition of the death penalty for non-triggermen. A

search of appellate opinions reported in the cases of all 90

persons executed since 1960 who appealed their convictions

reveals no case in which the executed person clearly did not

33/

participate in the homicidal assault.

30/ Colo. Rev. Stat. 1973 §16-11-103(5)(d) (1976 cum. supp. );

Conn. Gen. Stat. Ann. §53a-46a(f£)(4) (1976 cum. pocket part);

49 U.S.C.A. §1473(6)(D) (1976).

31/ Code of Ala. Recompiled, tit. 15, §342(9)(d) (1975

interim supp.); Arizm Rev. Stat. §13-454(F)(3) (1973 supp.

pamphlet); Ark. Code §41-1304(5) (1975 supp.); Fla. Stat.

Ann. §921.141(6)(d) (1976 cum. pocket part); Burns Ind. Stat.

Ann. §35-50-2-9(c)(4) (1977 amendment); Vernon's Mo. Stat.

Ann. §559.009.5.3(4) (1977 amendment); Nebr. Rev. Stat.

§29-2523(2)(e) (19750; N.C. Gen. Stat. §15A-2000(£)(4) (1977

amendment); S.C. Code §16-52(C)(6)(4) (1977 amendment);

Utah Code Ann. §76-3-207)(1)(£) (1975 cum. supp.); Wash.

Rev. Code Ann. §9A.32.045(2)(d) (1977 amendment); Wyo.

Stat. §6-54.2(j)(iv) (1977 revision).

32/ See note 25, supra.

33/ The citations of all 90 cases are appended hereto as

Appendix C, infra.

@ 63 -

The behavior of juries and public officials in non-trigger-

man cases is also indicative that there does not exist with

regard to these cases such "moral outrage," Gregg v. Georgia,

supra, 428 U.S. at 183 (plurality opinion), that "the only

adequate response may be the penalty of death," id. at 184. And,

whatever assumptions might be made regarding the deterrent

effect of the death penalty for "carefully contemplated murders,"

id. at 186, or in categories of cases for which “other sanctions

May not be adequate," ibid., common sense judgment is in accord

with the overwhelming statistical evidence that the use of the

death penalty against a non-triggerman who does not commit,

attempt or intend a killing will not reduce the incidence of

cnnten tite Court is therefore confronted with the ques-

tion whether the execution of petitioner and of similarly

situated murderers-by-legal-fiction would “be so totally with-

out penological justification that it results in the gratuitous

infliction of suffering,” id. at 183.

Finally, quite apart from "public perceptions," id.

at 173, of the appropriateness of the execution of non-trigger-

men, and quite apart from evaluations of the social effect of

such executions, the killing by the State of one who has not

killed, attempted to kill or intended to kill is so "grossly

34/ For an updated, comprehensive review of that

evidence, see Zeisel, The Deterrent Effect of the Death

Penalty: Facts v. Faiths, THE SUPREME COURT REVIEW

317 (1976).

-- 44-

out of proportion to the severity of the crime," ibid., that

it cannot “accord with ‘the dignity of man,‘ which is the

basic concept underying the Eighth Amendment,'" ibid. This

thesis is established by the simple fact that crimes such as

rape, attempted murder or assault with intent to kill, which

are decidedly more serious in that they involve direct,

deliberate, and (in the latter two cases) life-threatening

invasions of the physical integrity of another human being,

almost universally result in punishments that are not remotely

comparable to the punishment of death.

Cc.

The Ohio Death Penalty Statutes Violate

the Sixth, Eighth and Fourteenth Amend-

ments in that They Deny the Capitally

Accused the Right to a Judgment of his

Peers as to the Existence of Mitigating

Circumstances, and the Appropriateness

of the Penalty of Death.

In Ohio, the sentencing hearing at which the decision is

made to execute a capital defendant or to spare his life is

conducted before the trial court alone. Ohio Rev. Code Ann.

§2929.03(C)-(E) (Page 1975). The jury, once having found the

defendant guilty of aggravated murder and one or more specifi-

cations, has absolutely no input into the determination as to

whether the mitigating circumstances which preclude imposition

of the death penalty in Ohio are present. The trial court

alone hears the evidence as to mitigation, and the trial court

alone decides whether the defendant will live or die.

The constitutionality of death sentencing procedures

which totally exclude the jury from life-or-death decision

making is now before the Court in Petitions for Writs of

- 45 -

Certiorari from two other States, McKenzie v. Montana (No.

76-6714) and Jordan v. Arizona (No. 76-6965). To avoid

burdening the Court with repetitious matter, we incorporate by

reference Subpart (I)(B) of the Reasons for Granting the Writ

in McKenzie, set forth at pages 29-36 of that petition, which

underscores the importance of this issue and the urgent need

for its consideration by the Court. The referenced pages are

attached to this petition as Appendix D.

We would only add to the argument set forth in McKenzie

a short but significant item of Ohio legislative history.

In Ohio, the shift to jury discretion in capital sentencing

35/

came in 1898, and the system prevailed without interrup-

tion until the death penalty statutes of that State were

invalidated in 1972. There is no doubt that the subsequent

determination to strip the jury of its control over the use of

the death penalty reflected the desire of the Ohio Legislature

to “retain the death penalty in a form consistent with the

[federal] Siisddindan” tated than a willing abandon-

ment of the principle that the momentous decision to take or

spare the life of criminal defendant should be made only

by a jury of his peers. For the new Ohio Criminal Code as

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

35/ BOWERS, EXECUTIONS IN AMERICA 8 (1974).

36/ Woodson v. North Carolina, supra, 428 U.S. at 298

(plurality opinion)..

- 46 -

EEE ES EE °

37/

Plainly provided for jury sentencing in capital cases.

But, faced with the Furman ruling that unbridled jury dis-

cretion to impose a death sentence was constitutionally pro-

hibited, and the opinion expressed in McGautha v. California,

402 U.S. 183 (1971), that the formulation of standards to guide

juries in the capital sentencing process was impossible, the

Ohio legislature undoubtedly assumed that it was constitu-

tionally necessary to make capital sentencing a matter solely

for judicial dnetintenhtiin.”” tien assumption has, of

course, since proved to be false.

Ohio Capital Sentencing Procedures

Impermissibly Penalize Exercise of

the Rights to Plead Not Guilty and

to Have a Jury Trial

Under Ohio law, if a defendant pleads not guilty to

an indictment charging aggravated murder with a specification

of aggravating circumstances, "[t]he trier of fact may be

either a jury or, if waived, a three-judge panel; ... If

the defendant is found guilty of the charge and guilty of one

or more of the specifications, a separate hearing is held

before the trial judge [in a jury-tried case] or the three-

judge panel [in a jury-waived case] to determine whether

mitigating circumstances exist which preclude imposition of the

death penalty. . . . The death penalty is to be imposed if the

trial judge or the three-judge panel unanimously finds that

none of the three possible mitigating factors has been

37/ Lehman & Norris, Some Legislative History and Comments on

Ohio's New Criminal Code, 23 CLEV. ST. L. REV. 8, 16-17 (1974).

38/ Id. at 20.

- 47 -

established to exist by a preponderance of the evidence."

State v. Bayless, supra, 48 Ohio St.2d at 81-83. As we have

seen in subsection II(A), supra, the only outlet from the death

penalty for a capital defendant convicted of aggravated murder

upon a plea of not guilty is either (1) a failure of the

jury (or three-judge panel) to find factually the existence of

a statutory aggravating circumstance, or (2) the finding by

‘

the court (or three-judge panel) of one or more of Ohio's three

extremely narrow mitigating circumstances. If any aggravating

: -_ : : ,

circumstance and no mitigating circumstance is found, the death |

penalty must be imposed. Ohio Rev. Code Ann. §2929.03(C), (E)

(Page 1975). Thus in petitioner's case the trial judge,

failing to find any i«gally permissible mitigating cir-

cumstance, recognized chat

"the Court has no alternative, whether

the Court likes the law or not, the

Court has to enforce the law as he sees

it and he interprets it, and the Court

will do so [by sentencing the petitioner

to death]."

R. II 251.

Had petitioner pleaded guilty, however the court would

have had "an alternative." It would not have been restricted

by Ohio's rigid aggravating-mitigating circumstances scheme,

but could have imposed a life sentence for any reason that it

thought fitting, "in the interests of justice." Ohio Rule

Crim. Pro. 11(C)(4) provides in relevant part:

"If the indictment contains one or

more specifications, and a plea of guilty

or no contest to the charge is accepted,

the court may dismiss the specifications

[of aggravating circumstances] and impose

sentence [of life imprisonment] accordingly."

48 -

Moreover, had petitioner elected to waive trial by jury of

the issue of guilt or innocence, she could have been sentenc-

ed to death only if a “panel of three judges unanimously

[found] ... that none of the [statutory] mitigating circum-

Stances ... is established by a preponderance of the evidence."

Ohio Rev. Code Ann. §2929.03(E) (Page 1975). The benefit of

trial of the mitigating-circumstances issue by a multi-judge

panel which cannot impose a death sentence in the absence of

unanimity is obviously considerable:

"A multi-judge 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 carry

out their responsibilities."

Rainsburger v. Fogliane, 380 F.2d 783, 785 (CA 9 1967).

In United States v. Jackson, 390 U.S. 570 (1968), this

Court held that the rights to plead not guilty and to have a

jury trial are unconstitutionally diminished when separate

and more lenient sentencing standards are established for

cases in which these rights are waived. See also Funicello v.

New Jersey, 403 U.S. 948 (1971) (per curiam); Atkinson v.

North Carolina, 403 U.S. 948 (1971) (per curiam). Such a

scheme "needlessly encourages" the waiver of the rights to have

one's guilt determined by a trial and by a jury. United

States v. Jackson, supra, 390 U.S at 583. Ohio's statutes and

rules of court governing the trial of capital cases provide

a similarly needless and effective encouragement of waiver of

federal Fifth and Sixth Amendment rights; and their constitu-

tionality under Jackson therefore plainly warrants review on

certiorari.

- 49 -

Ohio Capital Sentencing Procedures

Impermissibly Shift to the Defendant

Convicted of Aggravated Murder with

Specifications the Burden of Proving

Facts Which Distinguish Those Who May

Live from Those Who Must Die.

We have discussed in Section II(A)-(D), supra, the

nature of the inguiry conducted at the mitigation phase of an

Ohio capital trial. This is a proceeding at which three

specific factual determinations are made, relating to the

mental capacity of the defendant and two narrow features of

his offense. On the basis of these factual determinations,

convicted defendants are assigned to imprisonment or condemn-

ed to die at the hand of the State. Yet upon these three

factual determinations, framed in the form of mitigating

circumstances, Ohio law requires the defendant to bear the

burden of proof by a preponderance of the evidence. Ohio

Rev. Code §2929.04(B) (Page 1975); State v. Royster, supra,

48 Ohio St.2d at 389.

The question raised by this allocation of the burden of

proof is also presented, and its importance is underscored,

by the pending Petition for Writ of Certiorari in Jordan v

Arizona, No. 76-6965. In order to spare the Court the burden

of repetitious matter, we incorporate by reference Subpart

II(C) of the Reasons for Granting the Writ set forth at pp.

28-30 of that petition, which are appended hereto as Appendix

E, infra.

The Petition for Writ of Certiorari in Jordan v

Arizona, supra, was filed without the benefit of this Court's

recent decision in Patterson v. New York, U.S. , 45

U.S.L.W. 4708 (June 17, 1977). However, we do not believe

that Patterson significantly affects the analysis of the

- 50 -

Jordan petition since, as demonstrated in Jordan, requiring a

State to prove the non-existence of the small and finite

number of mitigating circumstances present herein, in the

limited number of mitigation hearings held each year in

capital cases, would not be "... too cumbersome, too expen-

sive and too inaccurate." Patterson v. New York, supra, 45

U.S.L.W. at 47ll.

CONCLUSION

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 and irreversible penalty of death, it is manifestly

appropriate for this Court to consider the rigidity of the

Ohio capital sentencing process, its isolation from the

conscience of the pe, ee chilling effect upon

the rights to plead not guilty and to trial by jury, its

allocation to the defendant of the burden of proving life-or-

death facts, and the combined prejudicial effect of these

factors upon a defendant who -- like this petitioner -- has

not herself engaged in the deliberate taking of human life,

cf. Gregg v. Georgia, supra, 428 U.S. at 187 (plurality

opinion).

III. THIS COURT SHOULD GRANT CERTIORARI

TO CONSIDER WHETHER PETITIONER'S

SIXTH AND FOURTEENTH AMENDMENT RIGHTS

WERE VIOLATED BY THE INSUFFICIENTLY

EXAMINED EXCLUSION FOR CAUSE OF PRO-

SPECTIVE JURORS WITH CONSCIENTIOUS

SCRUPLES AGAINST CAPITAL PUNISHMENT

We have seen in the preceding subparts that Ohio law no

longer confers overt discretion upon the jury to determine wheth;:

er a capital defendant shall live or die. The jury decides only

397 Cf. Woodson v. North Carolina, supra, 428 U.S. at 295

(plurality opinion).

= $1 -

o—-

—

40/

whether aggravated murder and one or more aggravating

41/

circumstances are established; sentencing then devolves

upon the court. Under these procedures, it is arguable that

death-qualification of jurors is neither necessary nor

appropriate, but the Ohio Supreme Court has

43/

concluded otherwise. It has chosen not only to

44/

death-qualify jurors in capital, cases, but to do

so under standards that fall far short of the requirements

of Witherspoon v. Illinois, 391 U.S. 510 (1968), and

45/

e.g., Wigglesworth v. Ohio, 403 U.S. 947 (1971).

The Ohio Supreme Court has thus decided that the

jury's function in capital cases implicates a juror's attitudes

toward the death penalty sufficiently to warrant death-qualifi-

cation, but insufficiently to warrant Witherspoon's constitu-

tional limitations upon the practice. Petitioner's jury was

death-qualified upon this principle (see pp. 18-22 supra); and

its propriety plainly merits review on certiorari.

40/ Ohio Rev. Code Ann. Sec. 2903.01 (Page 1975).

41/ Ohio Rev. Code Ann. Sec. 2909.04 (A)(1) through (7)

(Page 1975).

42/ Ohio Rev. Code Ann. Sec. 2929.03(B), (C) (Page 1975).

43/ If unnecessary, it is obviously inappropriate since, as

the Ohio Supreme Court itself has recognized, "[a]ny exclu-

sion of a class of jurors necessarily impinges upon the

function of the jury to represent a cross section of the

community." State v. Bayless, supra, 48 Ohio St.2d at

90.

44/ State v. Bayless, supra, 48 Ohio St. 2d at 89.

45/ State v. Bayless, supra, 48 Ohio St 2d at 91-92.

» $23 -

Under Witherspoon, veniremen may not be excluded for

cause unless they make it “unmistakably clear...that their

attitude toward the death penalty would prevent them from

making an impartial decision" as to guilt or innocence.

Witherspoon v. Illinois, supra, 391 U.S. at 522, n.21. The

jury selection in petitioner's case obviously did not meet

that test, but instead was conducted with only expediency in

mind. See Bernette v. Illinois, 258 N.E.2d 793 (1970), rev'd

403 U.S. 947 (1971). Without explanation or sufficient

inquiry, prospective veniremen were asked a single question

couched in terms of whether they would be willing “to take an

oath” or affirmation as a juror, knowing a possibility

existed in regard to capital punishment. R. I 24-28. This

inquiry failed to go far enough to justify a constitutional

challenge for in: "tae questions about reserva-

tions or scruples are far from the kind of examination

which separates those who could not render a fair and_

46/ The full cath was not read to the veniremen. They

were told only that it was “an oath to well and truly try

this case" and that one must “take an oath and follow the

law." R. I 24.

47/ For example, Minnie Lee stated, "If I took it [the

oath] I'd follow it, but I wouldn't want to take it, not

with capital punishment.

COURT: I still have to ask you directly, Minnie,

would you take an oath, now that you know

the situation?

MRS. LEE: No."

She was thereupon excused for cause. R. I 28.

= §3 -

impartial verdict from those who could. Boulden v. Holman,

394 U.S. 478 (1969); Maxwell v. Bishop, 398 U.S. 262

(1970) al

The rationale of Witherspoon will not support the

construction that the constitutional requirements announced

in that case are "at best...dictum as applied to a statutory

scheme, such as Ohio's, which does not permit the jury to

consider sentencing.” State v. Bayless, supra, 48 Ohio St.2d

at 91-2. To the contrary, Witherspoon is premised on the

view that an accused person is guaranteed the right to a

fair trial, with a fair cross-section of the community on

the jury panel. To exclude veniremen who are opposed to

capital punishment but who could nonetheless fairly hear and

determine the issues presented for their consideration would

Significantly impair that right. If the constitutional right

to trial by a jury representing a cross-section of the

community is to be preserved, no juror may be excused for

cause unless and until it is made unambiguously clear that

he could not be fair and impartial in the determinations he

is asked to make.

48 Although the limited inquiry conducted of the veniremen

n this case hardly made their views “unmistakably clear,"

a majority of the Ohio Supreme Court was of the view that the

jury selection did not violate Witherspoon. State v.

Lockett, supra, 49 Ohio St. 2d at 56.

Compare, State v. Anderson, 30 Ohio St. 2d 66 (1972),

in which the trial judge told prospective jurors to answer

"I can" or “I cannot" regarding the verdict of guilty without

recommendation of mercy. One venireman answered, “I really

don't know. It's very improbable that I could recommend

the death penatly." The judge asked for a definite statement

and the juror indicated “I cannot." The Ohio Supreme Court

reversed the verdict of death, stating that this expedient

method of jury selection had a chilling effect on the im-

perative search for an informed and impartial jury.

@ 84 «

Concededly, jurors in Ohio do not have an explicit

sentencing role.

However, the very predicate upon which the

Ohio Supreme Court has authorized death-qualification of the

jury is that a juror's attitudes regarding capital punishment

may affect his decision on the facts relating to such issues

as aggravating circumstances, which trigger the ultimate

life-or-death decision. In view of the range of narrow

mitigating circumstances in Ohio (see subpart II(A) supra),

the decision on aggravating circumstances is usually a

decision as to the ultimate penalty as well. In short, the

precise theory on which the Ohio Supreme Court has allowed

the prosecution to death-qualify a jury under the present

statute is the theory which requires that voir dire examina-

tion compiy with Witherspoon standards:

"...the attitude toward capital punish-

ment held by many individuals, both

opposed and in favor, presents real and

serious problems for the impaneling of

a fair and impartial jury. Despite

the fact that capital case jurors are

to consider only guilt, and that sentenc-

ing is left to the trial judge, we see

in the record of this voir dire that a

prospective juror's opinion on capital

punishment often does prevent him from

impartially applying the law, as it is

given in the court's instructions to the

facts as he finds them." State v.

Bayless, supra, 48 Ohio St.2d at 89.

The Ohio Supreme Court has found death-qualification

necessary to its capital sentencing scheme, in order to

obtain a fair and impartial jury. If that be so, and if

death-qualification is therefore to be allowed at all, it

surely cannot escape the constitutional restrictions of

Witherspoon and its progeny.

-§5 -

’

IV . THIS COURT SHOULD GRANT CERTIORARI TO

CONSIDER WHETHER THE OHIO SUPREME COURT,

BY GIVING RETROACTIVE APPLICATION TO A

NEW CONSTRUCTION OF OHIO REVISED CODE

SECTION 2923.03(A) GOVERNING COMPLICITY,

DENIED PETITIONER'S RIGHT TO FAIR WARNING

OF A CRIMINAL PROHIBITION AND THEREBY

DEPRIVED HER OF HER LIFE IN VIOLATION OF

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT.

On January 1, 1974, a new criminal code, House Bill

511, became effective on Ohio. Prior to that time, an aider

and abettor in Ohio could be prosecuted and punished as if

he were the principal offender, whether or not he possessed

the same mens rea as the principal offender. House Bill 51l

changed Ohio law by requiring that an aider or abettor

possess the same culpability as the principal. Yet in

petitioner's case the Ohio Supreme Court, by a 4-3 margin,

"interpreted" the new provision out of existence. Since the

conduct for which petitioner was prosecuted and sentenced to

die occurred after House Bill 511 took effect but before the

Ohio Supreme Court's unforeseen construction of that statute,

petitioner was denied fair notice of the criminal prohibition

under which she stands condemned.

Prior to January 1, 1974, former Ohio Rev. Ann. Code

Sec. 1.17 provided as follows:

"Any person who aids, abets or procures another

to commit an offense may be prosecuted and

punished as if he were the principal offender."

This statute made no mention of the mens rea of an aider

and abettor; and several pre-1974 decisions of the Ohio

Supreme Court had held that an aider and abettor need not

have the mens rea of the substantive offender. Stephens v.

State, 42 Ohio St. 150 (1884); Goins v. State, 46 Ohio St.

457 (1889); Woolweaver v. State, 50 Ohio St. 277 (1893);

State v. Doty, 94 Ohio St. 258 (1916).

However, on January 1, 1974, Ohio Rev. Code Ann. Sec.

2932.03(A), a provision of House Bill 51ll, took effect.

This statute provided that:

"No person, acting with the kind of culp-

ability required for the commission of an

offense, shall do any of the following:

* *

(2) Aid or abet another in committing the

offense." (Emphasis added)

As the dissenters below noted, this statute "... has no

effective meaning if the present law is held in part to

require no proof of culpability." State v. Lockett, supra,

49 Ohio St.2d at 69 (dissenting opinion). Yet that is

precisely what the Ohic Supreme Court held in this case. The

majority below, by citation to cases decided long before the

1974 criminal code (see State v. Lockett, supra, 49 Ohio

St.2d at 60-62), in effect eviscerated the new provision

49/

entirely.

49/ The majority below also relied upon a Legislative

Service Commission comment which stated generally that the

new statute codified the existing law with respect to aiding

and abetting. Id. at 60. However, as the dissent points

out, "“(t]his general statement cannot . . . control over

the specific language of the statutes actually adopted."

Id. at 70 (dissenting opinion). The dissent further noted

that the majority's disregard of explicit statutory language

limiting criminal liability was particularly surprising in

the light of Ohio Rev. Code Ann. Sec. 2901.04(A), which re-

quires that “Sections of the Revised Code defining offenses

shall be strictly construed against the state, and liberally

construed in favor of the accused." Ibid.

Close scrutiny of the legislative history reveals that

in fact the Ohio Legislative Service Commission specifically

= §7 -

The Ohio Supreme Court's surprising interpretation of

section 2923.03(A) was crucial to the affirmance of peti-

tioner's conviction, since obviously her culpability was not

the same as that of the principal in the Cohen's killing, A}

Parker. Petitioner never entered Mr. Cohen's store, and was

outside in the car during the entire incident. Parker, the

State's main witness against petitioner, did not purport to

connect her with any design to kill Mr. Cohen or any other

person. To the contrary, Parker testified that there was no

such design -- that the shooting occurred unintentionally as

the result of Mr. Cohen grabbing the gun. See State v.

Lockett, supra, 49 Ohio St. 2d at 67-68 (dissenting opinion).

Yet petitioner now stands convicted and sentenced to die as

if she had entered the store and purposely shot Mr. Cohen

50/

herself.

49/ [Continued]

recommended that a complicity section require individual

proof of whether each co-defendant shared the same intent as

the principal offender. The Commission staff disapproved

prior case law holding that "those engaged in a common

enterprise are each responsible for the acts of the other in

pursuance of a common enterprise." Complicity: Accountability

for Conduct of Another Person, Memorandum from Legislative

Service Commission Staff to Criminal Law Technical Committee,

November 14, 1966, p. 10. The Legislative Service Com-

mission recommendation of individual culpability for com-

plicity was adopted in the final report to the Ohio Legisla-

ture, see Proposed Ohio Criminal Code, Final Report of the

Technical Committee to Study Ohio Criminal Laws and Proce-

dures, March, 1971, p. 246. The present complicity section,

§2923.03(A)(2) (Page 1975), was enacted verbatim from the

Proposed Ohio Criminal Code, supra

50/ It should be noted that Ohio does not adhere to the

strict felony murder rule, but rather requires an intent

or purpose to kill as an essential element of first degree

murder. See State v. Lockett, supra, 49 Ohio St.2d at

58-59. Petitioner's participation in the robbery of the

pawnshop, without more, therefore cannot support her convic-

tion of aggravated murder.

= §§ -

This expansive and unforeseeable judicial construction

of Ohio's new complicity law, when applied retroactively to

petitioner's case, deprived her of her right to fair warning

of a criminal prohibition. E.g., Lanzetta v. New Jersey, 306

U.S. 451, 453 (1939). "There can be no doubt that a depriva-

tion of the right of fair warning can result not only from

vague statutory language but also from an unforeseeable and

retroactive judicial expansion of narrow and precise statu-

tory language.” Bouie v. City of Columbia, 378 U.S. 347, 352

(1964). As this Court stated in Bouie:

"If the Fourteenth Amendment is violated

when a person is required ‘to speculate as to

the meaning of penal statutes,' as in

Lanzetta, or to ‘guess at [the statute's]

meaning and differ as to its application' as

in Connally, the violation is that much

greater when, because the uncertainty

as to the statute's meaning is itself not

revealed until the court's decision, a

person is not even afforded an opportunity

to engage in such speculation before commit-

ting the act in question." Ibid.

In petitioner's case, of course, we are concerned not

only with petitioner's conduct at the time of the offense

charged, but also with her conduct at trial in twice re-

jecting offers of a non-capital disposition and sentence in

return for a guilty plea. See p. 12, supra. Cf. Raley v.

Ohio, 360 U.S. 423 (1959). The applicability of Bouie and

the fair notice doctrine in this context is perhaps best

summarized in a recent comment by Professor Charles Black of

the Yale Law School:

"Now you may say that, after all, this

woman knew she was guilty, and ought to have

pled. I find death by electric shock a

pretty stiff penalty even for such re-

calcitrance. But in truth the case is a

- 59

perfect one of illustrating the fallacy

of this whole line of argument. She knew

she was guilty -- of what? Two out of

three psychiatrists who examined her put

her intelligence below dead average, and

one of these put her ‘in the range of

borderline mental retardation.' The third

doctor rated her intelligence as ‘slight-

ly above average.' She was hooked on

methadone at least; whether she was in

withdrawal when these decisions on

pleading were made does not appear.

Could she have gotten into the Tulane Law

School? Yet I think that is where she

would have to be even to start trying to

understand the theories on which she was

held guilty of killing. My trembling

guess is that she may have thought

something like, ‘Killing? Why I was in

the car.' If that was what she was

thinking, three of the seven judges in

Ohio's highest court thought she was

right, and was therefore not guilty on

either of the pleas offered her -- though

they put their views in somewhat more

artful terms. Are you really willing to

keep running a system that electrocutes a

woman like this because, with whatever

feeble intellection, she made a guess as

to her own guilt that was the same as the

holding of three out of seven of Ohio's

top judges?" Black, The Death Penalty

Now, 51 Tulane L. Rev. 429, 435-36

(1977) (forthcoming).

Doubtless, the Ohio Supreme Court is free to construe

its state law as it sees fit -- for the future. However, to

apply the anomalous construction reached in petitioner's

case retroactively without warning, is to deprive her of her

life in violation of fundamental fairness. This Court should

grant certiorari to consider whether any such proceeding can

be squared with the Due Process Clause of the Fourteenth

Amendment.

- 60 -

CONCLUSION

Petitioner prays that the petition for writ of

certiorari be granted.

Respectfully submitted,

AEE L-——

793 Pleasant Ridge

Bexley, Ohio 43209

JACK GREENBERG

JAMES M. NABRIT, III

JOEL BERGER

PEGGY C. DAVIS

DAVID E. KENDALL

10 Columbus Circle

Suite 2030

New York, New York 10019

ANTHONY G. AMSTERDAM |

Stanford University Law School

Stanford, California 94305

ATTORNEYS FOR PETITIONER

Dated: New York, New York

{

June 27, 1977

= 6] -

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.