Reply Brief — Beck v. Alabama

Supreme Court, US.

} ! : cee

FEB 42 1980

= ——— — — —e JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 78-6621

GILBERT FRANKLIN BECK,

Petitioner,

STATE OF ALABAMA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

REPLY BRIEF OF PETITIONER

Of Counsel: DAVID KLINGSBERG

JOHN A. HERFORT 425 Park Avenue

JAY WISHINGRAD New York, New York 10022

Kaye, Scholer, Fierman, Tel. (212) 759-8400

Hays & Handler Attorney for Petitioner

425 Park Avenue

New York, New York 10022

Tel. (212) 759-8400

JOHN L. CARROLL

Southern Poverty Law Center

1001 South Hull Street

Montgomery, Alabama 36104

Tel. (205) 264-0286

Washington, 0.C. e CLB PUBLISHERS’ @ LAW PRINTING CO. e (202) 393-0625

I.

Il.

(i)

TABLE OF CONTENTS

THE INCREASED RISK OF UNRELIABLE

FACT-FINDING CREATED BY ALA-

BAMA’S STATUTORY PRECLUSION OF

LESSER-OFFENSE VERDICTS IN CAPI-

TAL CASES IS NOT OFFSET BY THE

FACTORS ON WHICH RESPONDENT RE-

LIES AND, IN A CAPITAL CASE, THAT

RISK IS CONSTITUTIONALLY INTOLER-

ABLE UNDER THE DUE PROCESS

1. The Substantial Risks Of Error Created By

Fg 3 RS re ry ee

2. The Alleged Offsetting Factors................

3. The Due Process Criteria. ...........ccccceess

RESPONDENT HAS FAILED TO SHOW

WHY ALABAMA’S LAW SHOULD NOT BE

INVALIDATED PURSUANT TO THIS

COURTS EIGHTH AMENDMENT RUL-

INGS IN GREGG. v. GEORGIA, WOODSON

v. NORTH CAROLINA AND LOCKETT v.

1. The Need To Focus On The Particular Cir-

cumstances Of The Capital Crime Charged.....

2. Eliminating Lesser-Offense Verdicts As An

Element Of A “Totally Alien” and ‘‘Uncon-

stitutional’’ System Of Criminal Justice.........

Ill. RESPONDENTS EQUAL PROTECTION

ARGUMENTS FAiiL TO PROVIDE A SUF-

FICIENT BASIS FOR SUSTAINING THE

HARMFUL DISCRIMINATION AGAINST

CAPITAL DEFENDANTS IN ALABAMA’S

1. Petitioner's Equal Protection Claim Is

Properly Before This Court ............ceeees:

Page

(ii)

2. The “Strict Scrutiny” Test

3. The Lenient Standard

IV. RESPONDENT CONCEDES THAT THE

EVIDENCE SUPPORTED A VERDICT OF

GUILT ON A LESSER-INCLUDED NON-

CAPITAL OFFENSE

CONCLUSION

(iii)

TABLE OF AUTHORITIES

Page

Cases:

Alford v. State,

243 Ala. 404, 10 So. 2d 373 (1942) ................... 7

Anderson v. United States,

ee Sickness keuees cdbeceeew couse’ 15

Baxstrom v. Herold,

EE EEN s cncncdepanvescevedentscveeias 21

Brown v. State,

Be Ca ee UP CRED pvccccccccccssidcveves 9

Bullock v. Carter, | 3

ann cceccbeseetuvkssudebessanee 17

Craig v. Boren,

os es be aepentoua senbeuaubadaes 19

Eisenstadt v. Baird,

Ss sc 6p.0505 0 bh006s0edbbenveiec 18

Estelle v. Williams,

EE as csc accccanntdcdetécctanses 2,10,17

Fuller v. Oregon,

INI son. obec cadndeveevebebuncusded 15

Furman v. Georgia,

MIT di picdcncdcsduberastdeceacvevene 11

Gregg v. Georgia,

I sv sc ockcctacsthenccnsenas Passim

Groppi v. Wisconsin,

ss cla. csi dae adeabwecbavebeusute 21

Hopt v. Utah,

RE ee rT ere 9

Howard v. United States,

372 F.2d 294 (9th Cir.), cert. denied, 388 U.S.

ok SARE a ae RS es ahr BAe bo ane Dn 7

(iv)

Humphrey v. Cady,

a eee uve eds euwanes 21

Illinois v. Somerville,

ihe ES SEER EN a AEE OTE 7

Jackson v. Indiana,

ee FIED ov coe hedccbVecacceb4cee cadens 21

Jacobs v. State,

361 So. 2d 640 (Ala. 1978), cert. denied, 439 U.S.

aU e U6 cok evewekeed kukcxomeearecusncs 15

Johnson vy. Louisiana,

I ons vc.on60kbeundvcocannevedsaun 4,9

Jurek v. Texas,

Re a a ie eas aces 19

Keeble v. United States,

Tey NE ihc kc cc vcdadcativccceccvescancs 2,7

Kirk vy. State,

247 Ala. 43, 22 So. 2d 431 (1945) ...............0... 20

Lockett v. Ohio,

ne ee Tn dnc osc vss 6-0bd 00 caetonnaees passim

Logan v. United States,

144 U.S. 263 (1892)...... bbocdeedusaeaeenadaaeee 7

McGautha v. California,

| | aa ne An ere Ae Rees 9

McGinnis v. Royster,

I, oo bin wie us bs a daten ewe ed 18,19

Mayer v. City of Chicago,

Re I Se Un os uv kcw hanno decnendsdecce 15,21

Parham v. State,

285 Ala. 334, 231 So. 2d 899 (1970)................. 7

Police Dept. of Chicago v. Mosley,

INI I i 17

Powell v. Alabama,

ae ce sie Che ahs = be, 8

(v)

Proffitt v. Florida,

ee Oe, ee So lige seals tei iegseeceones 19

Reid v. Covert,

po pee mre rr rT Tee Terr ere ey 8

Roberts (Stanislaus) v. Louisiana,

Be Si Ee CRESTS Fae th ec ehbcccedetccocecccces 12

San Antonio School District v. Rodriguez,

ie BS. os) EAA pee Lg’ soceaies apa ee 16

Shapiro v. Thompson,

Fe Be IE Fuciidcarced cnoccsecvocessecsess 17

Stanley v. Illinois,

ee as bia he ae 6s heehee sp esresccccses 15

Stanton v. Stanton,

BEE GLE PU icc ckceiinegatecsestecesapesecs 20

Stevenson v. United States,

SF SE PI ods ors ih in th besccecsesdvesnns 9

Street v. New York,

BE BA ease nbs criksPascevacvcesvesceses 16

Trimble v. Gordon,

ey Pe ees euebescdetteesevccoceccacs 19

United States v. perez,

ye Bek We eer er ere 7

U.S. Dept. of Agriculture v. Moreno,

BES Dike Sa a sehe seth re hipedssvicsacccnes 18

Weinberger v. Wiesenfeld,

SE ee Nk acd Fa Sled rds cccecevisecces 15,18

Williams v. Florida,

RR oe Es 6, Se en rier y

In re Winship,

poet RC RE ne eee eh ee er eee 10

Woodson v. North Carolina,

BE Ue va besbdces tec coccwess 5,11,12,18,19

Zablocki v. Redhail,

Ee ee I ice iia nha dao e Whe We ce geetseoncis 17

(vi)

Statutes

Ala. Constitution, Amendment No, 38 SN ais soy bwedd 20

Ala. Code §12-21-200 through §12-21-263 ( a SEPP 20

ie en te | ea a 8

“cee oad tee oe LL) ea 8

Ala, Code §13A-6-2(c) (1978) ....... 0... cc ces cccccccen, 8

Ala. Code §13A-5-30 (1978) ...... 0... ccc ccc cece eee. 8

Ala. Code §15-18-100 (1975)... 0... cece cece cece cece. 20

ee ed. 5 20

Ala. Code §15-22-36 (1975) ......... cc cc ccccuceuccecea, 20

United Kingdom Criminal Justice Act of i) )

Other Authorities

Mackey, The Inutility of Mandatory Capital

Punishment: An Historical Note, 54 B.U.L. Rev.

a, MERE inaeti yok Wee at pr 5

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 78-6621

GILBERT FRANKLIN BECK,

Petitioner,

, &

STATE OF ALABAMA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

REPLY BRIEF OF PETITIONER

L

THE INCREASED RISK OF UNRELIABLE

FACT-FINDING CREATED BY ALA-

BAMA’S STATUTORY PRECLUSION OF

LESSER-OFFENSE VERDICTS IN CAPI-

TAL CASES IS NOT OFFSET BY THE

FACTORS ON WHICH RESPONDENT

RELIES AND, IN A CAPITAL CASE, THAT

RISK §S CONSTITUTIONALLY _IN-

TOLERABLE UNDER THE DUE PRO-

CESS CLAUSE.

2

1. The Substantial Risks Of Error Creat

Alabama’s Law peiriinsahaes

(a) Respondent’s basic argument is that the risk of fact-

finding error caused by Alabama’s Statutory preclusion of

lesser-offense verdicts in capital cases is “speculative.” R.B.

17. This argument is premised on the erroneous assumption

that, in the absence of hard factual proof, this Court cannot

find that preclusion of lesser-offense verdicts creates a risk of

erroneous jury convictions. Since no other state has ever

disallowed lesser-offense verdicts and, therefore, there is no

evidence concerning any state’s experience without the

procedure, such a demonstration would be impossible.

More importantly, such a factual demonstration is un-

necessary as a matter of law. This Court made clear in

Estelle v. Williams, 425 U.S. 501 (1976), that the de-

termination as to whether a particular procedure poses an

“unacceptable risk” of “impermissible factors coming into

play” (id. at 505) does not require actual proof that jury

deliberations were tainted. As Chief Justice Burger ex-

plained in Estelle.

_ “The actual impact of a particular practice on the

judgment of jurors cannot always be fully determined.

But this Court has left no doubt that the probability of

deleterious effects on fundamental rights calls for close

judicial scrutiny. [Citations omitted]. Courts must do

the best they can to evaluate the likely effects of a

particular procedure, based on reason, principle and

common human experience.” Jd. at 504.

Reason, principle and common human experience were

applied by the Court in Keeble v. United States, 412 U.S.

205 (1973), to conclude that without a lesser-offense

instruction there is a “substantial risk” that “‘[w]here one of

the elements of the offense charged remains in doubt, but the

3

defendant is plainly guilty of some offense, the jury is likely

to resolve its doubts in favor of conviction.” 412 U.S. at212-

13.

Contrary to respondent’s assertion, this risk is magnified

in a capital case such as petitioner's. R.B. 30. As compared

with Keeble, where the lesser offense was simple assault, the

enormity of the relevant lesser offense of felony-murder will

increase the jury’s reluctance to acquit and thereby interfere

with their deliberations. To make matters worse, the trial

judge here instructed the jury that if the defendant is

acquitted, he could not be retired for any crime he may have

committed against the victim. A. 9.

(b) In order to conclude that lesser-offense verdicts create

risks of error that threaten intolerable consequences in

capital cases, it is unnecessary to find, as respondent

suggests, that the jury intentionally will violate its oath and

willfully fail to follow its instructions. R.B. 28-29. If it were,

then this Court’s many Due Process rulings on “imper-

missible influences” on jury behavior, including Estelle,

would be unnecessary. As Justice Stewart has stated:

“Why, if juries do not sometimes act improperly, does

the Constitution require protection from inflammatory

press coverage and ex parte influence by court officers?

Cf., e.g., Sheppard v. Maxwell, 384 U.S. 333; Parker

v. Gladden, 385 U.S. 363; Turner v. Louisiana, 379

U.S. 466. Why, if juries must be presumed to obey all

instructions from the bench, does the Constitution

require that certain information must not go to the jury

no matter how strong a cautionary charge accompanies

it? Cf. eg., Bruton v. United States, 391 U.S. 123;

Jackson v. Denno, 378 U.S. 368. Why, indeed, should

we insist that no man can be constitutionally convicted

by a jury from which members of an identifiable group

to which he belongs have been systematically excluded?

4

6 C8, robe gt ee 347 U.S. 475.” Johnson

. Louisia .S. -

} om ma , 398-99 (1972) (Stewart,

The point is that there is a risk that jurors will be

influenced, however subconsciously, to resolve doubts on

the critical issue of intent in favor of conviction by the

presence of an unnecessary distorting factor — here, the

prospect of acquitting and freeing a guilty defendant due to

their inability to convict of the serious, lesser offense he

admittedly committed. As the Court stated in Keeble, the

proper focus is on “‘the substantial risk that the jury’s

practice will diverge from theory.” 412 U.S. at 212.

2. The Alleged Offsetting Factors

(a) Respondent argues that the risk of erroneous con-

viction from the preclusion of lesser-offense verdicts if offset

by the fact that the jury is made aware that this is a capital

case. See R.B. 17-21. It does not, however, make the risk

acceptable in a capital case to hope that the jury’s reluctance

to see the death penalty imposed will compensate for another

factor that unfairly and unnecessarily tilts the jury towards

conviction. This argument flies in the face of the Court’s

consistent pronouncements that capital cases demand

especially high standards of Due Process. See cases cited at

P.B. 32-34.

In any event, respondent’s so-called historical evidence

for this contention is inapposite. The language respondent

cites from this Court’s opinions regarding jury nullification

on the issue of guilt relates only to the historical experience

of states with mandatory death sentences, and not to the

experience of states, like Alabama, where the death penalty

5

was imposed on a discretionary basis. R.B. 18-19.' Since,

under a non-mandatory statute, there is the possibility of not

sentencing the defendant to death, there is less reason for

jury nullification on the issue of guilt. Furthermore, given the

96% conviction rate under Alabama’s law, respondent's

contention regarding jury leniency is of doubtful validity.

(b) Although the jury accompanies its finding of guilt with

a statement fixing the punishment at death, “‘the trial court

and not the jury actually makes the sentencing determina-

tion.” R.B. 22 n.11. Moreover, it is extremely doubtful that

Alabama juries are misled — or, as respondent puts it,

“‘encouraged”’ — into thinking they have actual sentencing

authority and that this somehow offsets the risk of erroneous

conviction. R.B, 21-22. The fact that the judge, not the jury,

has sentencing authority was well publicized before trial in

the Gadsden, Alabama community where petitioner’s crime

was committed and where he was tried. R. 944, The

Gadsden Times, Nov. 10, 1976; R. 947, The Gadsden

Times, Nov. 24, 1976. Accordingly, the statement in

respondent’s brief that “there is no indication in the record

that the jury otherwise knew that the judge would ultimately

determine the sentence” is erroneous. R.B. 22 n.11. In any

event, the notion that the validity of Alabama’s law must

depend on the deception of its capital jurors underscores the

inadequate, self-contradictory nature of respondent’s ap-

‘Respondent quotes Woodson v. North Carolina, 428 U.S. 280, 303

(1976), but the Court’s full statement was that “[i]n view of the historical

record, it is only reasonable w assume that many juries under

mandatory statutes will continue to consider the grave consequences of

conviction in reaching a verdict.” R.B. 21 (Emphasis added to show

omission by respondent). Mackey, The Inutility of Mandatory Capital

Punishment: An Historical Note, 54 B.U.L. Rev. 32 (1974), on which

respondent also relies, concerned only mandatory capital punishment

statutes. R.B. 17-18.

6

proach to the fact-finding process in capital cases.

(c) Respondent stresses the availability of a mistrial as a

special procedural protection which substitutes for the

lesser-offense verdict. R.B, 22-25. The mistrial procedure is

inapplicable. It applies where the jurors are not unanimous

and disagree about whether defendant is guilty of the capital

offense charged. Contrary to respondent’s suggestion, a

mistrial is inappropriate where the jurors are all in agreement

“that the defendant was not guilty of a capital offense but was

guilty of a serious non-capital offense... .” R.B, 24.

Respondent’s belief that the jurors would invoke the

“mistrial option” in order to ensure a subsequent conviction

of a lesser offense on which they all agree is also unrealistic.

R.B. 22-25. It presupposes that when the jurors all agree that

defendant is only guilty of a lesser-included offense, (a) the

jurors will falsely advise the trial judge that there is a

disagreement, i.e., that some jurors believe the defendant is

guilty of the capital offense charged, while others vote for

acquittal; and (b) the jurors will undertake this duplicitous

action based on their anticipation that it will set in motion a

tenuous chain of events which, even under the trial judge’s

instructions, may not eventuate.” There is no reason for the

jury to have any assurance that a mistrial will lead to a

reindictment and trial on a lesser-offense charge which, in

turn, will result in conviction on that charge. Respondent’s

scenario is palpably ridiculous because it assumes a degree

of sophistication and deviousness on the part of jurors that is

?As the trial judge instructed the jury

“*{I]n the event that ali of your number cannot agree upon a verdict,

[a] judgment of mistrial must be entered by the Court and...

Defendant may be tried again for the aggravated offense or may be

reindicted for an offense wherein the indictment does not allege an

aggravated circumstance.”” A. 13 (emphasis added).

7

illusory. It is also inconsistent with respondent’s repeated

assertions that jurors can be trusted to obey their oaths. R.B.

28-31.

Finally, the mistrial procedure is not a special safeguard

which provides substitute protection for the preclusion of

lesser-offense verdicts in capital cases. Historically, the

mistrial procedure in the event of jury disagreement has

existed alongside lesser-offense verdicts,’ and is currently

available in Alabama non-capital trials where the lesser-

offense instruction also is allowed.‘ Moreover, contrary to

respondent’s statement, the trial jury in Keeble was

instructed that it had the option, by virtue of non-unanimity,

of not reaching a verdict.‘ R.B. 31.

(d) The availability of a separate sentencing hearing,

relied on by respondent, does not cure the defects in the

guilt-finding process created by Alabe a’s statute. See R.B.

25-28. The Court has long held that criminal defendants,

particularly in capital cases, are entitled to every safeguard

*E.g., United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824); Logan

v. United States, 144 U.S. 263 (1892).

‘Parham v. State, 285 Ala. 334, 231 So. 2d 899 (1970); Alford v.

State, 243 Ala. 404, 10 So. 2d 373 (1942).

‘The Keeble jurors were specifically instructed that none of them

should “surrender your honest conviction as tc the weight or effect of

evidence solely because of the opinion of your fellow jurors, or for the

mere purpose of verdict.”” Appendix, Keeble v. United States, October

term, No. 72-5322, at 14. Under the federal law applicable in

Keeble, the necessary result of a mistrial based on jury non-unanimity is

that the defendant, as is the case under Alabama’s law, may be retried for

theoffense charged in the initial trial or a lesser offense. E.g., illinois v.

Somerville, 410 U.S. 458, 463 (1973); Howard v. United States, 372

F.2d 294 (9th Cir.), cert. denied, 388 U.S. 915 (1967). Thus, the

possibility of jury disagreement was accorded no significance in this

Court’s ruling in Keeble; and the parallel instruction in this case is no

more meaningful.

8

designed to promote reliable fact-finding at the guilt stage. °

Indeed, respondent cites no case where the possibility of the

trial judge adjusting the sentence was found by a court to

compensate for the denial of Due Process at the guilt-finding

stage.

In any event, whatever corrective potential may exist in

Alabama’s capital sentencing scheme is vastly exaggerated.’

Without a finding of guilt on a capital charge there could be

no death sentence. Moreover, respondent admits that “the

same evidence which convinces the jury beyond a reasona-

ble doubt of the defendant’s guilt of the capital offense will

usually also convince the trial court judge of the existence of

at least one aggravating circumstance” sufficient to support

a death sentence under Alabama’s law. RB. 57-58

(emphasis added). Respondent does not contest the fact that

in the first three years of the statute’s operation without the

lesser-offense option, 82% of those capital defendants found

guilty by a jury were sentenced to death by the trial judge.

3. The Due Process Criteria

Respondent has failed to undermine the long-standing

history and virtually unanimous adoption of lesser-offense

*Powell v. Alabama, 287 U.S. 45, 71 (1932); Reid v. Covert, 354

U.S. i 77 (1957) (Harlan, J., concurring), cited approvingly in Gregg v.

Georgia, 428 U.S. 153, 187 (1976). See also Lockett v. Ohio, 438 U.S.

586, 604 (1978).

"The most that a guilty capital defendant can hope for is life

imprisonment without a parole, a sentence which is greater than any

Alabama non-capital defendant — including one guilty of first-degree

murder — can receive. §13-1-74, §13-11-1, Code of Alabama (1975);

§13A-6-2(c), §13A-5-30, Code of Alabama (1978).

9

verdicts, along with the well-reasoned protections they

afford, which fully meet the standards on which this Court

has traditionally relied in Due Process cases. See P.B. 34-

50.* Respondent cites Keeble, supra, 412 U.S. at 208, to the

effect that the lesser-offense doctrine was initially developed

at common law to assist the prosecution. R.B. 39. But the

cour. in Keeble went on to say that “it is now beyond dispute

that defendant is entitled to an instruction on a lesser

included offense” and that “‘the defendant’s right to such an

instruction has been recognized in numerous decisions of

this Court.” Id. at 208.

Moreover, respondent does not contest the fact that such

verdicts have been deemed a vital protection to defendants,

especially in capital murder cases, as far back as the

nineteenth century. McGautha v. California, 402 U.S. 183,

198 (1971); Stevenson v. United States, 162 U.S. 313, 314,

315, 323 (1896); Hopt v. Utah, 110 U.S. 574, 582-83

(1884); Brown vy. State, 109 Ala. 70,77, 20 So. 103 (1896).

*Respondent relies (R.B. 39-41) on Williams v. Florida, 399 U.S. 78

(1970) and Johnson v. Louisiana, 406 U.S. 356 (1972) dealing with the

less-than-unanimous verdict and less than 12-man jury scheme, neither

of which in these cases was applicable to capital juries. This Court, in

upholding six-man juries, specifically relied on the fact that the use of 12-

man juries (which petitioner there asserted was the constitutional norm)

was no more than a “historical accident” based “‘on little more than

mystical or superstitious insights into the significance of ‘12’,” that at

least nine states had juries of fewer than 12 for criminal cases, and that

the “’reliability of the jury as a fact-finder hardly seems likely to be a

function of its size.” 399 U.S. at 88-90, 98-99 n.45, 100-01. In Johnson

v. Louisiana, supra, 406 U.S. at 359-63; see also id. at 368, 372, 377

(Powell, J., concurring), the Court concluded that non-unanimous guilty

verdicts did not undermine the beyond-reasonable-doubt standard; that

prior decisions of the Court had refused to invalidate non-unanimous

jury verdicts, and that unanimity had been abandoned in England

(United Kingdom Criminal Justice Act of 1967,§ 13) and criticized by

the commentators.

10

In the last analysis, it makes no difference that the lesser-

offense option may assist prosecutors who, as representa-

tives of the people and officers of the court, have an interest

identical to defendants in precise, accurate jury fact-finding

untainted by impermissible influences and substantial risks

of error.®

Much is made of the fact that this Court has never ruled on

the constitutional question presented by this case. R.B. 33-

37. As Justice Harlan stated on the occasion of this Court’s

ruling on the reasonable doubt standard, it is “only because

of the nearly complete and long-standing acceptance” of that

procedure “‘by the States in criminal trials that the Court has

not before today had to hold explicitly that due process as an

expression of fundamental procedural fairness,” requires it.

In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J.,

concurring).

Respondent also fails to demonstrate, as it must, that

eliminating the procedure by statute for capital defendants

would provide significant countervailing public benefits (Jn

re Winship, supra, 397 U.S. at 366), and that the risks of

fact-finding error caused by Alabama’s procedure cannot

“be avoided.” Estelle v. Williams, supra, 425 U.S. at 505.

Those risks are easily avoided by preserving the availability

of lesser-offense verdicts without compromising Alabama’ s

goal of having an adequate, constitutionally acceptable

system for the imposition of capital punishment. Respondent

*Respondent’s further suggestion (RB. 34-35) that the three dis-

senting Justices in Keeble implicitly took a position “contrary to

petitioner’s position in the present case” is a misreading of Justice

Stewart's dissent, which merely noted that if a particular lesser-offense is

not a federal crime, a finding of guilt for such a crime in a federal court

would be contrary to the rule that a federal criminal court’s “limited

jurisdiction” extends only to statutory crimes as defined by Congres-

sional enactments. 412 U.S. at 215-17

concedes that the elimination of lesser-offense verdicts is

unnecessary to meet the constitutional requirements set

forth in Furman v. Georgia, 408 U.S. 238 ( 1972). R.B. 45.

As shown in the next two Points, respondent’s alleged goal of

exceeding constitutional requirements is illusory and is

actually contrary to this Court’s post-Furman decisions.

IL.

RESPONDENT HAS FAILED TO SHOW

WHY ALABAMA’S LAW SHOULD NOT BE

INVALIDATED PURSUANT TO THIS

COURT'S EIGHTH AMENDMENT RUL-

INGS IN GREGG v. GEORGIA, WOOD-

SON v. NORTH CAROLINA AND

LOCKETT v. OHIO.

1. The Need To Focus On The Particular Circum-

stances Of The Capital Crime Charged

The basis of respondent’s Eighth Amendment argument is

that the statutory preclusion of lesser-offense verdicts

follows the alleged goal of Furman to eliminate discretion.

R.B. 55. The flaw in this argument is its failure (see R.B. 55)

to deal with the principle enunciated by this Court in

Woodson v. North Carolina, supra, 428 U.S. at 304-05,

and reiterated in Lockett v. Ohio, supra, 438 U.S. at 604,

that the “fundamental respect for humanity underlying the

Eighth Amendment” and the “corresponding difference in

the need for reliability” in capital cases makes consideration

“of the circumstances of the particular offense” a con-

stitutional requirement.

Applying this principle, the Court held in Woodson that

the sentencing authority’s decisions in a Capital case must

12

have room for discretion based on standards similar to those

employed at the guilt-finding stage to assist the jury in its

fact-evaluation process. Woodson v. North Carolina,

supra, 428 U.S. at 304-05.'° The Court in Woodson said

that discretion is inevitable and rather than attempt to

eliminate it, there should be “‘objective standards to guide,

regularize, and make rationally reviewable the process for

imposing a sentence of death.” 428 U.S. at 303. Lesser-

included offense instructions allow the jury to conform its

verdict to the offense actually committed; absent that

procedure, capriciousness is likely to result from the ir-

rational choice of either acquittal of a defendant guilty of a

serious offense, or conviction of an offense which the

defendant did not commit. By unduly limiting fact-finding

discetion in capital cases and eliminating a long-established

standard for guiding its exercise, Alabama’s law has the

same defect as the statutes invalidated in Woodson and

Lockett."

\4ccord, Gregg v. Georgia, supra, 428 U.S. at 193 (noting that it

“would be virtually unthinkable to follow any other course in a legal

system” than to give juries “careful instructions on the law and how to

apply it before they are authorized to decide the merits of a lawsuit. .. . It

is quite simply a hallmark of our legal system that juries be carefully and

adequately guided in their deliberations.””). Lesser-included offenses are

an historically sanctioned means for arriving at a careful, precise

judgment on the key issue in a capital case.

'\Contrary to respondent’s contention, there is no support in Roberts

(Stanislaus) v. Louisiana, 428 U.S. 325 (1976) for abolition of lesser-

offense verdicts. R.B. 46. Roberts, which dealt with Louisiana’s

mandatory death sentence law, did not condemn the practice of allowing

juries to return lesser-offense verdicts. Roberts merely said that by

requiring instructions to juries permitting them to return lesser-offense

verdicts in capital cases, even where “there is not a scintilla of evidence

to support the lesser verdicts,” Louisiana’s law had precisely the same

defect of standard-less jury decision-making on the life-death question

(given Louisiana’s mandatory sentence following a finding of guilt on a

(continued)

13

2. Eliminating Lesser-Offense Verdicts As An

Element Of A “Totally Alien” And “Un-

constitutional” System Of Criminal Justice

Contrary to respondent’s contention (R.B. 36), this Court

clearly stated in Gregg v. Georgia, supra, 428 U.S. at 199-

200 n.50 (1976), that a system for the imposition of capital

punishment, which, among other things, abolished the

lesser-offense option, would be unconstitutional, The Court

dealt in tum with each of the four “opportunities for

discretionary action” alleged as defects in Georgia’s capital

punishment process (i.¢., prosecutorial discretion as to what

crime to charge, plea bargaining, lesser-offense verdicts, and

post-sentence executive commutation). Jd. at 199. Plainly

the Court’s reference (428 U.S. at 199-200 n.50) to

discretion at the trial stage where a “jury refuse[s] to convict

even though the evidence supported the charge”’ related to

the availability under Georgia’s law of lesser-offense

verdicts. The Court made clear that a “system” which

eliminated the four opportunities for discretion, including

lesser-offense verdicts, “‘would be totally alien to our notions

of criminal justice” and “‘would be unconstitutional.” [bid. '?

(footnote continued from preceding page)

capital charge) as its pre-Furman law, which permitted juries, without

standards, to return a verdict of “guilty without capital punishment in

any murder case.” 428 U.S. at 334. Unlike Louisiana, Alabama’s

standard for lesser-offense verdicts in non-capital cases, which is all

petitioner asserts should aply, limits lesser-offense instructions to cases

where there is at least some evidence supporting a lesser-offense verdict.

Moreover, Alabama’s death sentence provision is not mandatory.

"In an attempt to support the validity of Alabama’s law under the

Eighth Amendment, respondent argues that the law “limits the definition

of capital offenses to a group of narrowly defined types of aggravated

murder.” R.B. 65. As explained in petitioner’s main brief (P.B. 58-59),

the offenses are not narrowly defined, but, due to the breadth of the aider

(continued)

aii i iN lll

14

Accordingly, Alabama’s law, which represents the first —

step toward such a system of justice, must be held to be a

constitutionally intolerable response to this Court’s decision

in Furman.

iL

RESPONDENT'S EQUAL PROTECTION

ARGUMENTS FAIL TO PROVIDE A SUF-

FICIENT BASIS FOR SUSTAINING THE

HARMFUL DISCRIMINATION AGAINST

CAPITAL DEFENDANTS IN ALABAMA’S

LAW.

1. Petitioner’s Equal Protection Claim Is

Properly Before This Court

Respondent concedes that in the state courts, at both the

trial (A. 55; R. 39-45, 105) and appellate (A. 38-40) levels,

petitioner timely raised federal constitutional objections

under the Fourteenth Amendment to Alabama’s preclusion

of lesser-offense verdicts.'? Nevertheless, respondent now

(footnote continued from preceding page)

and abettor and conspiracy doctrines, as set forth in the trial judge’s

instructions to the jury, to which petitioner objected (A. 5; R. 747-751),

are so loosely defined that Alabama’s law creates an undue risk,

heightened by the absence of the lesser-offense option, that many capital

defendants, such as petitioner, will receive a disproportionately heavy

sentence, whereby they are sentenced to death even where they lacked

any intent that the victim be killed.

"'There is no question that the Alabama Supreme Court considered

petitioner’s federal constitutional claims in this case. As respondent

concedes, petitioner’s application to the Alabama Supreme Court

specifically relied on the “14th Amendment.” R.B. 43. Moreover, in its

(continued)

15

argues that petitioner's failure to use the phrase “equal

protection” is fatal to its equal protection arguments to this

Court. This argument has no support in the case-law and is

contradicted by this Court’s holding in Stanley v. Illinois,

405 U.S. 645 (1972).

In Stanley, supra, 405 U.S. at 658 n.10, the Court held

that it would consider petitionsr’s argument that Illinois’ law

precluding illegitimate fathers but not mothers from re-

ceiving a hearing on parental custody claim violated both the

Equal Protection Clause and the Due Process Clause, even

though petitioner argued only the Equal Protection point in

the state courts. Because petitioner's Equal Protection

argument is related to its Due Process and Cruel and

Unusual Punishment arguments, as respondent concedes

(R.B. 53),'* this Court’s ruling in Stanley, where petitioner’ s

Due Process and Equal Protection arguments were also

related, is dispositive. Accord, Anderson v. United States,

417 U.S. 211, 223 n.12 (1974).'5

(footnote continued from preceding page)

decision in this case, the Alabama Supreme Court dealt with the federal

constitutional issue, holding that the law is “constitutional” (A. 53) on

the authority of Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert.

denied, 439 U.S. 1122 (1979), a case which involved only federal

constitutional claims and dealt with the lesser-offense issue. Further-

more, the Equal Protection question was asserted in petitioner's

application for a writ of certiorari in this Court.

‘Due Process and Equal Protection are interrelated. See Mayer v.

City of Cicago, 404 U.S. 189 (1971) (holding procedural deprivation to

violate both Due Process and Equal Protection), Weinberger v.

Weisenfeld, 420 U.S. 636 (1975) (Equai Protection secured by Due

Process clause of the Fifth Amendment).

'*The cases on which respondent relies are inapposite. R.B. 43-44. In

Fuller v. Oregon, 417 U.S. 40(1974), the issue was whether Oregon’s

criminal defendant cost recoupment statute violated the equal protection

clause because it discriminated in favor of those found innocent and

(continued)

16

It is clear that petitioner's explicit objections to the

constitutionality of the preclusion of lesser-offense verdicts

at the trial and appellate levels on the Fourteenth Amend-

ment ground is sufficient to enable this Court to consider

petitioner’s equal protection argument.

2. The “Strict Scrutiny” Test

Respondent does not even attempt to argue that Ala-

bama’s death penalty statute could conceivably survive

“strict scrutiny” under the Equal Protection Clause.

Instead, respondent argues that “‘strict scrutiny” is ap-

propriate only where the statutory discrimination in question

violates a constitutional safeguard other than the Equal

Protection Clause. R.B. 52-53. If respondent were correct,

applying the Equal Protection Clause pursuant to the “‘strict

scrutiny” test would be superfluous. Rather, in San Antonio

School District v. Rodriguez, 411 U.S 1, 38 (1973), the

Court held that strict scrutiny was appropriate where a

Statutory classification had the effect of “touching upon

(footnote continued from preceding page)

against those who were found guilty. Petitioner, for the first time, raised

the entirely unrelated question in this Court as to whether the statute’s

imposition of an obligation to repay without sifficient notice or hearing

violated due process. Jd. at 50 n.11. Unlike Fuller, where petitioner

attacked an aspect of the Oregon law’s operation which had never been

considered below, petitioner has consistently objected on federal-law

grounds to the lesser-offense provision in Alabama’s death penalty law

on Fourteenth Amendment (as well as Eighth Amendment) grounds that

are all interrelated. P.B. 13-14. In Street v. New York, 394 U.S. 576,

681-85 (1969), the Court held that raising the constitutionality of the

statute was sufficient, and no particular form of words or phrases was

essential, id at 584, so that petitioner could attack New York’s anti-flag

defacement statute on the ‘‘over-breadth”’ theory even though he did not

Originally raise that theory in the state courts.

17

constitutionally protected rights.” (Emphasis added.)'* In

order to apply strict scrutiny under the Equal Protection

Clause, the Court need not hold that Alabama’s law violates

any other constitutional provision.

There is no question that Alabama’s law has the requisite

effect of “touching upon constitutionally protected rights” to

a fair trial. Respondent concedes that the beyond-the-

reasonable-doubt standard and the right to fair fact-finding

are fundamental rights to be accored strict scrutiny, and

simply denies that they are adversely affected by the

preclusicm of lesser-offense instructions. See R.B. 53. In

Estelle v. Williams, supra, 425 U.S. at 503-05 , the Court

held that criminal defendants have “fundamental rights” in

the “fairness of the fact-finding process” and a right to have a

jury decide guilt or innocence without “an unacceptable

risk . . . of impermissible factors coming into play.”

Alabama’s law creates the risk that jury deliberations will be

unfairly influenced to resolve doubts on the critical elements

infavor of conviction by the specter of total freedom for

capital defendants who are plainly guilty of only a serious

intermediate crime. See Keeble, supra, 412 U.S. 205. This

'*Accord, Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98, 101

(1972) (applying strict scrutiny to regulation of picketing on the ground

that the statute was one “affecting First Amendment interests” even

though the regulation was not invalid under the First Amendment);

Bullock v. Carter, 405 U.S. 134, 143 (1972) ( applying strict scrutiny to

Texas laws requiring filing fees for candidates in election primaries even

though there was no substantive violation of any constitutional right to

vote or stand as a candidate for public office); Shapiro v. Thompson, 394

U.S. 618 (1969) (applying strict scrutiny to statute which burdened the

right to travel, even though there was no substantive violation found of

that constitutional right); Zablocki v. Redhail, 434 U.S. 374, 383-84

(1978) (applying strict scrutiny to statute affecting plaintiff's ability to

marry in Wisconsin, without finding any substantive constitutional

violation).

18

risk is unacceptable at least for capital defendants. The strict

scrutiny test is particularly appropriate in dealing with fair

trial rights in capital cases because, due to the uniqueness

and severity of the death penalty, capital defendants have a

constitutionally recognized right to procedures aimed at

ensuring “a greater degree of reliability” than in non-capital

cases. Lockett v. Ohio, supra, 438 U.S. at 605; Gregg v.

Georgia, supra, 428 U.S. at 187; Woodson v. North

Carolina, supra, 428 U.S. at 305.

Accordingly, the strict scrutiny test under the Equal

Protection Clause is applicable here and respondent has

failed to show that the statutory preclusion of lesser-offense

verdicts is necessitated by a compelling state interest.

3. The Lenient Standard

Even if this Court, as respondent suggest, applies the

lenient equal protection standard set forth in McGinnis vy.

Royster, 410 U.S. 263, 270 (1973), Alabama’s decision to

discriminate against capital defendants by denying them

opportunity to receive a lesser-offense verdict must be

invalidated because it lacks “some rational basis”’ related to

a valid, “legitimate, articulated state purpose”’ to sustain it.

As shown herein, Alabama’s purpose was not valid; and the

statute is not rationally related to any legitimate aim.

Respondent’s argument (R.B. 45-51) that the abolition of

lesser-offense verdicts will enable Alabama “‘to do even

better’ (R.B. 45) than what it perceived (erroneously)

Furman to require is unavailing.'’? The Court made clear in

"This Court is not required to “accept at face value” respondent's

assertion of legislative purpose. Weinberger v. Wiesenfeld, supra, 420

U.S. at 648 n.16. Accord, Eisenstadt v. Baird, 405 U.S. 438, 451

(1972); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 536-37

(continued)

nt Dt a al

ee ea ee

19

Woodson v. North Carolina, supra, 428 U.S. at 303, that

the abolition of fact-finding discretion, rather than the

imposition of standards to control it, was unconstitutional in

a capital case. See Point II, supra.

AS held in Jurek v. Texas, 428 U.S. 262, 274 (1976), the

contention that Furman endorsed abolition of jury con-

sideration of lesser-offenses, “fundamentally misinterprets

the Furman decision, and we reject it for the reasons set out

in our opinion today in Gregg v. Georgia, ante, at 199.”

Accord, Proffitt v, Florida, 428 U.S. 242, 254 (1976).

Moreover, the Court stated in Gregg, supra:

“Furman held only that, in order to minimize the risk

that the death penalty would be imposed on a ca-

priciously selected group of offenders, the decision to

impose it had to be guided by standards so that the

sentencing authority would focus on the particularized

circumstances of the crime and the defendant.” 428

U.S. at 199.

Accordingly, it is clear that Alabama’s decision to abolish an

instruction to the jury which enables it to “focus on the

particularized circumstances of the crime”’ is not supported

by a valid and legitimate purpose, but rather is a misreading

(footnote continued from preceding page)

(1973). It is logical to conclude, as the Court did in Lockett in reviewing

the erroneous and unconstitutional responses to Furman of North

Carolina and Louisiana, that Alabama was merely seeking to comply

with what it regarded as Furman’s mandate, and that Alabama

misunderstood the decision. Lockett v. Ohio, supra, 438 U.S. at 597-

602. For respondent now to hypothesize, without a scintilla of

supporting evidence based on legislative history or any other sources,

that a purpose of the law was “to do even better” than Furman required

is simply an exercise of lawyers’ imagination which must be viewed with

great skepticism. R.B. 45. E.g., Trimble v. Gordon, 430 U.S. 762, 774-

76 (1977); Craig v. Boren, 429 U.S. 190, 199-200 n.7 (1976). As this

Court made clear in McGinnis v. Royster, supra, 410 U.S. at 277, a

statute which has only an “imaginary basis” and lacks “‘a clear and

legitimate purpose”’ will not survive Equal Protection Scrutiny even

where strict scrutiny is not applicable.

20

of Furman. See Lockett v. Ohio, supra, 438 U.S. at 599-

600.

Moreover, on its face, the abolition of lesser-offense

verdicts is not a rational means of preventing arbitrariness

and capriciousness in capital cases. To the contrary,

Alabama’s law creates arbitrariness and capriciousness by

placing jurors, in capital cases only, in the unfair position of

having either to acquit and free a defendant guilty of a serious

intermediate offense, or to convict of a capital crime, but not

convict of the precise offense committed.

The invalidity of the distinctions drawn by the Alabama

law is further illustrated by the fact that only Alabama, of the

more than 30 states that have capital punishment laws,

precludes lesser-offense verdicts. The experience of other

states is a well-established means of judging whether one

state’s decision to discriminate against a defined group is

deemed to have a sufficient basis to satisfy the Equal

Protection Clause.'* E.g., Stanton v. Stanton, 421 U.S. 7,

15 (1975).

'8The rationality of Alabama’s classification is further undercut by the

fact that in most other respects relating to decision-making on the issue of

guilt, Alabama capital defendants and non-capital defendants are treated

alike. Thus, both groups are entitled to a unanimous jury verdict (see,

e.g., Kirk v. State, 247 Ala. 43, 22 So. 2d 431 (1945)), both are tried

pursuant to the same rules of evidence at the guilt-finding stage ( § 12-21-

200 through §12-21-263, Code of Alabama (1975)), and both are

eligible for sentencing commutation by state executives (Amendment

No 38, Constitution of Alabama (1901); §15-18-100, §15-22-27,

§ 15-22-36, Code of Alabama (1975)). This fact underscores the

likelihood — unrebutted by anything presented in respondent’s brief —

that Alabama perceives no genuinely serious need to treat capital and

non-capital defendants differently with respect to well-established

procedural protections. On the other hand, if respondent’s Equal

Protection argument is correct, it would be equally justifiable for

Alabama to institute non-unanimous juries for capital cases alone in

order to prevent jury nullification or to abolish the Governor’s clemency

power in capital cases alone so as to promote consistency in sentencing

outcomes.

aii. nwt Mn se

i

ee

21

Moreover, in Lockett v. Ohio, supra, 438 U.S. at 605, the

Court, in striking down a provision precluding the sentencing

authority in capital cases from weighing all the circum-

stances of the offense, concluded that

“[t]he considerations that account for the wide ac-

ceptance of individualization of sentences in noncapital

cases surely cannot be thought less important in capital

cases, Given the imposition of death by public authority

is so profoundly different from all other penalties, we

cannot avoid the conclusion that an individualized

decision is essential in capital cases.”

Similarly, here the considerations that led to universal

acceptance of allowing convictions of lesser offenses by all

States, including Alabama, are just as important in capital

cases, and no invidious discrimination against capital de-

fendants is allowed. Respondent does not point to even a

shred of evidence or to language in any of the Court’s

Opinions which supports the distinctions they have drawn.

The absence of any reasoned basis for distinguishing

between capital and non-capital defendants with respect to

risks of error avoided by lesser-offense verdicts means that

the statute is invalid under the Equal Protection Clause.

Mayer v. City of Chicago, 404 U.S. 189 (1971); Baxstrom

v. Herold, 383 U.S. 107 (1966); Jackson v. Indiana, 406

U.S. 715 (1972); Humphrey v. Cady 405 U.S. 504 (1972);

see also Groppi v. Wisconsin, 400 U.S. 505 (1971) (no

distinction allowed between felony and non-felony de-

fendants with regard to change of venue).'® Significantly,

‘Respondent critizes petitioner's Equal Protection argument as

overlapping its Due Process point. R.B. 51-52. While the Court may find

Alabama’s law unconstitutional on Equal Protection grounds without

also finding a Due Process violation, the fact is that these concepts are

interrelated and the Court has in the past found discriminatory de-

privations of proceduial safeguards to violate Due Process as well as

Equal Protection. See Mayer, supra, 404 U.S. 189, 193.

| NR EN TE Te NNO nn SUS e nS SET Oe nT pete an ee

99

~H+

respondent does not even attempt to distinguish this Court’s

Equal Protection rulings involving procedural safeguards

(set forth at P.B. 65-67), all of which are compelling

precedents for a decision that Alabama’s law violates the

Equal Protection Clause no matter what standard of review

is applied. Equal Protection plainly calls for criminal

procedures which allow no invidious distinctions between

capital and non-capital defendants, particularly where the

capital defendant is deprived of an historically important

safeguard available to all other defendants. See Mayer,

supra, 404 U.S. at 195-96.

IV.

RESPONDENT CONCEDES THAT THE

EVIDENCE SUPPORTED A VERDICT OF

GUILT ON A LESSER-INCLUDED NON-

CAPITAL OFFENSE.

Respondent has conceded that “‘if it had not been for the

preclusion clause in Alabama’s [death penalty] statute,

lesser included offense instructions would have been given”

(R.B. 78) to the jury at petitioner’s trial on the issue of guilt.

Specifically, respondent stated that because petitioner

denied that he killed the victim of the robbery, and also

denied that he in any way facilitated that killing, there was

enough evidence “‘to have supported lesser included non-

capital offense instructions for the crimes of first degree

murder and robbery had such instructions not been pre-

cluded by the statute.” R.B. 79. These concessions answer

an important part of the question posed by the Court on ‘he

grant of certiorari. A. 63.

ee S

23

CONCLUSION

' For the reasons stated here and in our main brief, the

judgment of the Supreme Court of Alabama affirming

petitioner's conviction and sentence of death should be

reversed,

Respectfully submitted,

DAVID KLINGSBERG

425 Park Avenue

New York, New York 10022

Tel. (212) 759-8400

Attorney for Petitioner

Of Counsel:

JOHN A. HERFORT

JAY WISHINGRAD

Kaye, Scholer, Fierman,

Hays & Handler

425 Park Avenue

New York, New York 10022

Tel. (212) 759-8400

JOHN L. CARROLL

Southern Poverty Law Center

1001 South Hull Street

Montgomery, Alabama 36102

Tel. (205) 264-0286