Opposition — Brownell v. Illinois

CURTIS BROWNELL,

vs.

THE STATE OF ILLINOIS,

IN THE be:

SUPREME COURT OF THE UNITED STATES sep 4 180,

OCTOBER TERM, 1980 OFFucé OF THE CLERK

NO. 80-5122

Petitioner,

Respondent.

Sree Oe Se

RECEIVED |

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

RESPONDENT'S BRIEF IN OPPOSITION

TYRONE C. FAHNER

Attorney General

State of Illinois

MELBOURNE A. NOEL, JR.,

CAROLYN B. NOTKOFF,

Assistant Attorneys General

188 W. Randolph Street (Suite 2200)

Chicago, Illinois 60601

(312) 793-2570

Counsel for Respondent

INDEX

JURISDICTION (absence thereof).......................

SY ED RN al ee

ie

py

IIL.

IV.

CONCLUSION...

THE DECISION OF THE ILLINOIS SUPREME

COURT REFLECTS THAT PETITIONER WAS NOT

INTERROGATED ON APRIL 2, 1978 IN

VIOLATION OF RHODE ISLAND V. INNIS

AND MICHIGAN V.

THE ILLINOIS SUPREME COURT CORRECTLY

DECIDED THAT PETITIONER'S RIGHT TO

COUNSEL WAS PROPERLY OBSERVED..........

Petitioner Effectively Waived

Mae MAGnt To Commeel. oii ciiicenccce.

The Allegedly Conflicting Decisions

Cited By Petitioner Are Distinguishable

ee ORM MMOS 6 SUG Ss AWE bs 0s cvs veces

NO PRINCIPLE OF LAW REQUIRES THE

. PRECLUSION OF A DEATH PENALTY

SENTENCING HEARING MERELY BECAUSE

PETITIONER CONFESSED AFTER REJECTING

“toy. Povactnyey yo te Se rr

THE ILLINOIS SUPREME COURT CORRECTLY

DECIDED THAT THE ILLINOIS DEATH

PENALTY STATUTE IS CONSTITUTIONAL......

The Statutory Mitigating Factor

Of "Extreme Mental Or Emotional

Disturbance" Is Not Unconstitu-

SSS RS a ee

The Illinois Death Penalty Statute

Is Valid As A Matter Of Federal

Constitutional Law And Conforms With

ead Decisions Of The Supreme

seorptig RS AOU, FOE OEE PEE, oI > aan

10

ll

12

13

15

19

CITATIONS

CASES : . PAGE

Berman v. United States, 302 U.S. 211 (1973)........ 1

Brady v. United States, 397 U.S. 742 (1970)......... S,; 12

Faretta v. California, 422 U.S. 806 (1975).......... 7

Furman v. Georgia, 408 U.S. 238 (1972).............. 15, 16

Godfrey v. Georgia, U3: , 100 §.Ct, 1759,

es ie ah OR esa teh ae 14

Gregg v. Georgia, 428 U.S. 153 (1976)............... 13-17

Johnson v. Zerbst, 304 U.S. 458 (1938).............. 7,

pune wa mmmem G20 U.S, 262 (1976).i sos coe c cdc vercccn 15

Lockett v. Ohio, 438 U.S. 586 (1978)............005. 14, 15

Michigan v. Mosley, 423 U.S. 96 Gh 1) . Lethe aie a S, i Se

Miranda v. Arizona, 384 U.S. 436 CRIS 4 xe» BES 0 oes -0 5, 7-9

North Carolina v. Alford, 400 U.S. 25 (1970)........ 12

People v. Brownell, 79 I11.2d 508, 404 N.E.2d

TBI (eS etry SEE IAS SARIS ADR aD ACS it >, 9. 36,58

People ex rel. Carey v. Cousins, 77 I1l.2d SRA <

357 N.E.2d 809 C1375} Ray WA Aina nage @ ob oe kb 15, 18

People ex rel. Hanrahan v. 1965 Oldsmobile, 52

, ; + @ , rev'd on

other grounds, 409 U.S. 38 (1973)............ee.e. 17

Rhode Island v. Innis, U.S. _, 100 S.Ct.

. . Ed, Ph Se 64s eb umes hea) 2, 5, 7-9

Santobello v. New York, 404 U.S. 257 SOFA) Ook 6X twas os

United States v. Henry, U.S.___, 100 S.Ct.

__. 65 L.Ed.2Zd Ii SRUOUE Sc oN vi «eh ce OEMESs < sae cus 11

United States v. Morrison, 602 F.2d 529 (3d Cir.

» cert. granted, 27 Cr. L. Rptr. 4122

(No. 79-395, = ER i a ll

STATUTES

Ga. Code Ann. §§ 27-2503, 27-2534.1(b) (Supp.

TTP EEE Gee RMN Uys » OEE Phe oscla Canoe rece. one 13

Tll. Rev. Stat., ch. 38, § 9-1 (1977) a 6Vb una wu bowen 12-16, 18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO. 80-5122

CURTIS BROWNELL,

Petitioner,

vs.

THE STATE OF ILLINOIS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, the State of Illinois, respectfully

requests that this Court deny the petition for writ of certiorari,

seeking review of the Illinois Supreme Court's opinion in

this case. That opinion is reported at 79 I11.2d 508, 404

N.E.2d 181.

JURISDICTION

(absence thereof)

Petitioner has invoked the jurisdiction of this

Court under 28 U.S.C. § 1257(3). Respondent submits that the

decision of the court below is not ripe for review by this

Court. The final judgment in a criminal case is the sentence.

Berman v. United States, 302 U.S. 211, 212 (1937). The Illinois

Supreme Court has vacated petitioner's sentence of death,

remanding the case for resentencing, and thus there has been

no final determination of the merits of the case. Since

litigation between the parties has not yet been terminated,

review by this Court at this stage of the proceedings would

be premature. Id. at 213.

QUESTIONS PRESENTED

Whether the decision of the Illinois Supreme Court

that petitioner was not interrogated accords with the

decisions in Rhode Island v. Innis and Michigan v. Mosley?

Whether the Illinois Supreme Court correctly

concluded that petitioner had effectively waived his right

to counsel, where petitioner met extensively with his counsel

but later, knowingly waived counsel's presence?

Whether petitioner can be sentenced to death

after confessing where there was no outstanding offer of

leniency and petitioner also rejected such an offer?

Whether the mitigating factor listed in the Illinois

death penalty statute as "extreme mental or emotional dis-

turbance" adequately guides the sentencing authority where

the statute further describes this factor as “not such as

to constitute a defense to Prosecution" and allows the

introduction into evidence of any other relevant mitigating

factors?

Whether the Illinois Supreme Court correctly

concluded that a prosecutor's discretion to request a death

sentencing hearing does not violate the eighth amendment

where the prosecutor's discretion is guided by the statute

and by the strength of his case?

satin

, . oN eS I See ee tee ETN ee Sg me eR Cy ue eos

SlALEMENL OF LHE CASE

Respondent wishes to add the following facts

omitted by petitioner:

On the evening of April 1, 1978, at approxi-

mately 10:00 p.m., petitioner's counsel indicated that he

wished to open negotiations with prosecutors regarding the

death penalty and whether it would be sought in the case.

(A. 108-109) At about 10:30 p.m. it was agreed among the

parties that the following deal would be struck: if petitioner

would give the police a complete, written statement concerning

his role in the victim's death, the State would not seek the

death penalty at his trial. (A. 122) Significantly, this

offer was not open-ended; rather, the Prosecutors expressly

limited the offer so that petitioner would be required to

give his statement "at that time, right now." (A. 122)

One of petitioner's attorneys then met with him alone

for about fifteen minutes. (A. 109) A police detective

was then summoned and informed, by petitioner and his counsel,

that petitioner had declined the offer. (A. 109, 137)

Petitioner's attorney later repeated to both the police

(A. 109) and the prosecuting authorities (C. 276, 323) his

client's refusal to accept the offered deal. After once

again ascertaining that petitioner would refuse to speak to

anyone but his lawyers, (A. 137) the parties left for the

evening between midnight and 1:00 a.m. (A. 110-111)

Approximately one hour later, petitioner summoned

the detectives assigned to this case. (A. 100) Once they had

arrived at his cell, petitioner stated that he wished to give

them a statement. When asked if his lawyers should be present,

petitioner stated they should not be summoned. because they f

would not "let me tell you everything I want to tell you."

(A. 123) The police next asked petitioner why he had refused

to confess earlier in the evening, when he could have bargained

his way out of e possible death penalty. Petitioner said he

rejected that "deal" because he wanted “to burn". (A. 1ll,

123, 143) Thereupon, after being fully admonished as to his

fifth and sixth amendment rights, petitioner confessed to

. murder. (A. 111) After confessing, he inquired if he had

told the police "enough so that he could burn." (A. 112)

REASONS FOR DENYING THE WRIT

(In Addition To Lack Of Ripeness Mentioned

In "Jurisdiction" Section, Supra.)

~

a

THE DECISION OF THE ILLINOIS SUPREME

COURT REFLECTS THAT PETITIONER WAS NOT

INTERROGATED ON APRIL 2, 1978, IN

VIOLATION OF RHODE ISLAND Vv. INNIS

and MICHIGAN V. MOSLEY.

Prior to this Court's decision in Rhode Island v.

Innis, __U.S.___, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980),

the Illinois Supreme Court held that petitioner's right to

remain silent and right to counsel were properly observed and

rejected his argument that his waiver of these rights "was

defective due to the ‘affirmative, repeated efforts' of the

detectives to obtain a confession." People v. Brownell, 79

T1l.2d 508, 521, 404 N.E.2d 181, 188 (1980). The court

found that "the detectives did not coerce or threaten the

(petitioner] into speaking with them" and that "most of the

attempts they made to persuade the [petitioner] to confess

were made in the presence of counsel." Id., 404 N.E.2d

at 188. Respondent submits this decision is consistent with

the principles set forth in Innis as well as those in Michigan

v. Mosley, 423 U.S. 96 (1975), two cases delineating the rights

previously established in Miranda v. Arizona, 384 U.S. 436

(1966).

In Innis, this Court concluded "that the Miranda

safeguards come into play whenever a person in custody is

subject either to express qeustioning or its functional

equivalent." Innis, __-U.S. at __. 100 S.Ct. at 1689, 64 L.Ed.2d

at 307-8. The definition of interrogation extends "only to

words or actions on the part of police officers that they

should have known were reasonably likely to elicit an in-

criminating response." Id. at, 100 S.Ct. at 1690,

64 L.Ed.2d at 308 (emphasis in original). The admissibility

of statements obtained after the person in custody has chosen

to remain silent “depends under Miranda whether his ‘right

to cut off questioning' was ‘scrupulously honored. '" Mosley,

423 U.S. at 104. Nothing in Mosley suggests that all statements

yr ~ ON nn enter terpemenn rrr nt Ror tree set trent et ne nf) meee ents ey ee

AE TS TR FL TD IS OR TT aur" i che peeeeaemk n aor y , » ng i oes

Oe x % ‘ , tl POE

.

made subsequent to a decision to remain silent are to be

excluded. Id. at 102-3. Rather, the decision makes clear

that there are no per se proscriptions of infinite duration

upon further questioning. Id.

The facts of the instant case belie petitioner's

assertion that law enforcement officials did not scrupulously

honor his rights, but affirmatively acted to obtain a con-

fession and circumvent his right to counsel. With the

exception of the showing of the photograph of the victim,

Louise Betts, to petitioner after he requested counsel, no

other police activity in any manner violated his constitutional

rights. The trial court suppressed all testimony concerning

the showing of the photograph to petitioner (A. 9) and that

issue is not before this Court. That incident however took

place at 2:15 p.m. on March 31, 1978, some thirty-six hours

prior to petitioner's confession. During that thirty-six

hour period, petitioner was represented by counsel and given

numerous opportunities to discuss with counsel and others what

actions to take. In fact, at no time during that thirty-six

hour period was petitioner specifically questioned about the

Betts’ murder by any law enforcement authorities. (A. 140)

Even though an initial violation of petitioner's rights had

occurred, the effect of this violation was fully dissipated by

lapse of time, repeated admonitions, and consultations with

counsel so as to render the statement of April 2, 1978 a |

voluntary statement. Thus petitioner's right to cut off

questioning was not violated. Mosley, 423 U.S. at 101 n. 8,

102-3.

The record is clear that the questioning of March 31,

1978 ended immediately upon petitioner's request for counsel.

At 6:15 that evening, petitioner accompanied by counsel

appeared in a line-up. (A. 134) While Detective Arbisi did

advise petitioner that he had a right to talk to detectives

either with or without his attorney (A. 135) this statement

cannot logically be considered interrogation or an attempt to

coerce petitioner into making a statement. Indeed, Detective

Arbisi correctly advised petitioner that he could waive his

attorney's presence and advise and speak with police officers

TF

——s

——__————-- - —— ears ue oor o iT; CBM Lh

> aad 0 ok { 4! Aeon

if he so desired. See Johnson v. Zerbst, 304 U.S. 458 (1938).

Rights enumerated under the sixth amendment are rights personal

to the accused and not to counsel. Faretta v. California, 422

U.S. 806 (1975).

The record supports the Illinois Supreme Court's

holding that petitioner's rights to remain silent and to

counsel were not encroached upon. Prior to and after the line-up

on March 31, petitioner spoke with counsel for as long as

he wished. (A. 140) He further acknowledged that from that

evening until the next no one attempted to talk to him about

the instant’ case. (A. 140) Petitioner spoke with counsel

on several occasions on the evening of April 1 and indicated

that these interviews lasted as long as he wished. (C. 383-4;

A. 136, 140).

Finally, petitioner's own testimony clearly indicates

that his decision to make a statement was made with knowledge

that his attorney could be present and with a desire on his

part to proceed without counsel:

Q. When Detective Arbisi and Sergeant

Packard came to the jail area that

morning around two or two-thirty

that morning on April 2nd, isn't

it true that one of the first things

they said to you was to ask if you

wanted them to call your attorney?

Yes.

Q. And isn't it true that you said no,

you didn't want them to call him because

he would keep you from saying what you

wanted to say?

A. Yes.

>

(C. 389) Defendant also acknowledged that his Miranda rights

were read to him before he gave a statement and that he

understood these rights. (A. 142)

Petitioner claims that certain "tactics engaged in

by the State" amounted to interrogation. Petition at 14.

The People respond that these actions do not violate the

precepts in Innis and thus review by this Court is unnecessary.

For example, the placement of petitioner in "isolation" or

"I-block" (A. 186) was not to elicit an incriminating response

but to prevent petitioner from committing suicide. (A. 139)

The police officers reasonably believed that a comment

«Pe x

petitioner had made referred to a possible suicide attempt.

(A. 186) Informing petitioner that he could talk to the police

with or without counsel present :was correct advise (see p. 6-7,

supra) given in the presence of his attorney, (A. 110, 131,

135, 141) certainly not a situation likely to evoke a confession.

Although petitioner complains that the State

arranged for him to meet with his wife before allowing him

to see his lawyer, this did not actually transpire. Rather,

petitioner met with his wife after he conferred with his

lawyer. (A. 136)

While it is true that the State offered to forego

the death penalty if petitioner would give a statement, this

was not an open-ended offer but limited to "that time, right

now." (A. 122) Furthermore, petitioner refused the offer (A.

109, 123, 143) and when he later confessed, he himself in-

dicated he was not doing so within the context of the offer.

(A. 143) Petitioner had unlimited opportunity to assess

with counsel the advantages and disadvantages of the State's

offer and any possible coercive impact of this offer of

leniency was dissipated by the advise of counsel. See Brady

v. United States, 397 U.S. 742, 754 (1970). Not only was the

State's offer not inherently unconstitutional, see id. at 755,

no agreement was ever reached between the parties.

Thus, respondent submits that review by this Court

is unwarranted as none of the State's actions amounted to

interrogation. Furthermore, petitioner misconstrues this

Court's holding in Innis. Innis not only addressed the meaning

of "interrogation" under Miranda, it clarified when the

Miranda safeguards are required:

It is clear therefore that the

special procedural safeguards outlined in

Miranda are required not where a suspect

is simply taken into custody, but rather

where a suspect in custody is subjected

to interrogation. ‘Interrogation,’ as

conceptualized in the Miranda opinion,

must reflect a measure of compulsion

above and beyond that inherent in

custody itself. [Footnote omitted]

We conclude that the Miranda safeguards

come into ne whenever a person in

custody is subjected to either express

questioning or its functional equivalent.

-8-

otallamenan re -

ne ne i shi a OTT er reer al

Innis, __U.S. at __, 100 S.Ct. at 1689, 64 L.Ed.2d at

307-8. Petitioner in this case was made completely aware of his

Miranda rights by police and was advised by counsel throughout

the period in question. His rights under Miranda, Mosley, and

Innis were never infringed upon during the taking of his

confession, thus obviating further review by this Court.

a:

THE ILLINOIS SUPREME COURT CORRECLTY

DECIDED THAT PETITIONER'S RIGHT TO

COUNSEL WAS PROPERLY OBSERVED.

A.

Petitioner Effectively Waived His

Right To Counsel.

Petitioner urges this Court to consider whether an

accused is cloaked with a sixth amendment right to counsel

when, “during its interrogationl of the accused, the State

offers" not to seek the death penalty in exchange for the

accused's confession. Petition at 16. However, this is not

the issue here, for it is clear from the record and opinion

below that petitioner was afforded his right to counsel but

later effectively waived s;,

Petitioner cites no authority, for there is none,

that prohibits one charged with acrime from voluntarily giving

a statement to law enforcement authorities after he has been

advised of his constitutional rights. Here petitioner

was not only warned, but, other than an initial Mosley violation,

see Brownell, 79 I11.2d at 519, 404 N.E.2d at 187, petitioner's

request for counsel was honored and there was no interrogation.

Petitioner met extensively with counsel (A. 136, 140) and

nothing in the record supports his allegations that he was

unaware of the consequences of his confession and the intricacies

of the law.

1. Respondent submits, as previously discussed

in Argument I of this brief, that petitioner was not "interro-

gated." See pp. 6-7 , supra.

_., ta. 8 eee oP oe

= _—

Petitioner initiated the proceedings leading up

to the confession (A. 142) and the statement was taken only

after he expressed a desire to give it without the presence

of counsel. (A. 143) Furthermore, petitioner explicitly

refused the State's offer of leniency prior to confessing.

(A. 143)

Respondent contends that the court below2 correctly

determined that petitioner waived his right to counsel in

a knowing, intelligent, and voluntary manner. See Johnson

v. Zerbst, 304 U.S. 458, 464-5 (1938). The facts and cir-

cumstances of this case, as discussed previously and as set

forth in the Illinois Supreme Court's opinion, Brownell, 79

I11.2d at 517-9, 404 N.E.2d at 186-7, demonstrate that

petitioner requested, and consulted exensively with, counsel

but later competently waived counsel's presence. Prior to

recording petitioner's confession, Detective Arbisi asked

petitioner whether he wished to have his attorney present

(A. 111) and apprised him of his Miranda rights. (A. 112)

Petitioner's earlier meetings with counsel as well as these

warnings by the detective dispel any notion that petitioner's

waiver of his right to counsel was not competent. Petitioner

was well aware of his rights and had previously exercised

them. Nothing prohibits him from later intentionally abandoning

these rights. Therefore, since no violation has occurred,

this Court should deny the petition for certiorari.

B.

The Allegedly Conflicting Decisions Cited

By Petitioner Are Distinguishable On

Their Facts.

Petitioner submits that the decision of the Illinois

2. The trial court's finding that petitioner's con-

fession was voluntary (A. 148, 211-2) encompasses an implied

finding tha petitioner was afforded counsel but later waived

counsel's presence. (A. 211)

-10-

SG er ee ee

EO Ee SS EY

ss ee aie

~The 7 ad

Saale Supreme Court in this case that petitioner's right to counsel

was not violated conflicts with the recent decision of

United States v. Henry, U.S. , 100 S.Ct. ——, 65 L.Ed.2d

115 (1980) and United States v. Morrison, 602 F.2d 529 (3d

Cir. 1979), cert. granted, 27 Cr. L. Rptr. 4122 (No. 79-395,

June 30, 1980). However, both these cases are easily dis-

tinguishable on their facts.

In Henry, the accused, while in custody and after

indictment, made incriminating statements to his cellmate,

an undisclosed government informant. This Court found the

admission of these statements at trial violated Henry's sixth

amendment right to assistance of counsel. The fact situation

in the instant case, wherein petitioner consulted extensively

with counsel and later made a confession to known law enforcement

officers, is entirely different than that in Henry where the

accused made incriminating statements to an undisclosed govern-

ment informant. Thus, petitioner's reliance on Henry is

misplaced.

: The facts in Morrison make it inapplicable to the

case at bar. Morrison involved repeated forceful and wilful

intrusions by government agents into a defendant's home. These

intrusions occurred outside the presence of defendant's

counsel and were designed to destroy her confidence in her

attorney. Again, the facts in the case now before the Court

clearly do not amount to a similarly egregious situation.

The decisionsof the court below does not conflict

with the decisions in Henry and Morrison, those decisions being

distinguishable on their facts. Therefore, granting certiorari

in this case would be inappropriate.

Ill.

NO PRINCIPLE OF LAW REQUIRES THE PRE-

CLUSION OF A DEATH PENALTY SENTENCING HEARING

MERELY BECAUSE PETITIONER CONFESSED AFTER

REJECTING AN OFFER OF LENIENCY.

Petitioner asserts that due process and the

attendant concept of fundamental fairness preclude capital

punishment in his case. In so arguing, he places great

emphasis on Santobello v. New York, 404 U.S. 257 (1971).

Santobello bears little, if any, application to this case.

There, the defendant "'bargained' and negotiated" for a guilty

plea to a lesser-included offense; the prosecution promised

not to recommend a sentence. Id. at 262. An agreement

was in fact reached between the parties. Because no such

agreement was ever settled upon here, there is no agreement

which could be breached or enforced, and Santobello is thus

inapposite. The prosecutor here was never committed to a

particular course of conduct.

A guilty plea is not rendered invalid because it

resulted from a defendant's desire to avoid the possibility

of the death penalty. North Carolina v. Alford, 400 U.S.

25 (1970); Brady v. United States, 397 U.S. 742 (1970).

Surely, there is nothing inherently unconstitutional about

negotiations between the State and the accused wherein a

defendant agrees to waive his constutitional rights in return

for a promise by the prosecution not to seek the death

penalty. But once again, since no agreement was ever reached

between the parties in this case and the offer of leniency

was not outstanding, petitioner's rights were not violated

by the prosecutor's decision to request a special sentencing

hearing.

The facts of this case as discussed throughout

respondent's brief reveal that no trickery was employed by

law enforcement officials to induce petitioner to forfeit

his rights in the absence of counsel. The Prosecutor and

the police officers were straightforward at all times and

petitioner apparently did not want the benefits of the State's

offer. (A. 111, 123, 143) Therefore, review by this’ Court

is not necessary.

IV.

THE ILLINOIS SUPREME COURT CORRECTLY

DECIDED THAT THE ILLINOIS DEATH PENALTY

STATUTE IS CONSTITUTIONAL.

Petitioner contends that two provisions of the

Illinois death penalty statute, Ill. Rev. Stat., ch. 38,

§§ 9-1(c)(2), (d) (1977), are unconstitutional. Respondent

submits that the decision below, upholding the challenged

~12-

— —s POTIONS Of Che statute, does not merit review by this Court.

A.

The Statutory Mitigating Factor Of "Extreme

Or Emotional Disturbance" Is Not Un-

Constitutionally Vague.

The Illinois statute on murder and the death

penalty provides, in part, as follows:

(c) . . . Mitigating factors may in-

clude but need not be limited to the

following:

k*kK*

2. the murder was committed while the

defendant was under the influence of

extreme mental or emotional disturbance,

although not such as to constitute a

defense to prosecution . ‘

Ill. Rev. Stat., ch. 38, § 9-1(c)(2) (1977). Petitioner

challenges this listed mitigating factor as unconstitutionally

vague and claims that the phrase "extreme mental or emo-

tional disturbance" does not sufficiently guide the sentencing

authority. Respondent maintains that this factor does not

violate any constitutional precepts.

The factor of extreme mental or emotional disturbance

is one of five mitigating factors enumerated in the statute.

Ill. Rev. Stat., ch. 38, § 9-l(c) (1) - (5) (1977). However,

mitigating evidence is specifically not limited to these

factors. Id.

The principles enunciated in this Court's decision

in Gregg v. Georgia, 428 U.S. 153 (1976), make clear that this

section of the Illinois statute here challenged by petitioner

is constitutional. The Georgia statute required the sentencing

authority, either judge or jury, after finding a statutory

aggravating factor existed, to "hear additional evidence in

extenuation, mitigation, and aggravation of punishment... ."

at the presentence hearing. Ga. Code Ann. § 27-2503

(Supp. 1975). Another section of the law required the

sentence to consider "any mitigating circumstances or aggra-

vating circumstances otherwise authorized by law... ."

Ga. Code Ann. § 27-2534.1(b) (Supp. 1975). The scope of the

mitigating circumstances was not delineated in the statute.

Yet this Court rejected the petitioner's objection to the

o3$. 3 : ee

0 eee

~~"""""broad scope of evidence and argument permitted at the

presentence hearing: 3

We think that the Georgia court wisely

has chosen not to impose unnecessary

restrictions on the evidence that can be

offered at such a hearing and to approve

open and far-ranging argument. [Citation

omitted.] So long as the evidence intro-

duced and tne arguments made at the

presentence hearing do not prejudice a

defendant, it is preferable not to impose

restrictions. We think it is desirable

for the jury to have as much information

before it as possible when it makes the

sentencing decision. [Citations omitted. ]

Grege, 428 U.S. at 203-4.

Respondent submits that the enumerated factor challenged

here is clear on its face and can be easily applied to the

evidence in a particular case. The factor of "extreme

mental or emotional distuhance" is adequately limited by the

language additionally describing it -- "although not such

as to constitute a defense to prosecution." Further definition

of this factor would impose unnecessary restrictions on

‘the evidence.

If a statutory scheme’ that does not delineate

mitigating factors is not found to be unconstitutional,

then one which specifies certain factors, without limiting

other mitigating evidence, is surely also not unconstitutional.

Petitioner's reliance on Godfrey v. Georgia, U.S. Z

100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), is misplaced. The

death sentence was reversed there because the court below

did not apply a constitutional construction of an aggravating

factor to the particular facts of the case. Nothing in Godfrey

mandates that mitigating factors be as strictly defined.

Nor does the Illinois mitigating factor of "extreme

mental or emotional disturbance" conflict with the decision

in Lockett v. Ohio, 438 U.S. 586 (1978). Ohio's death

penalty statute was struck down because it unduly limited

the consideration of mitigating factors. The listing of

“extreme mental or emotional disturbance" as a mitigating

factor does not preclude the sentencing authority from

considering any other relevant mitigating evidence. When

read as a whole, § 9-l(c) of the Illinois statute permits

“the type of individualized consideration of mitigating

: oe EI ET ST TT

. faccors . . . [held] to be required by the Eighth and

SP

Fourteenth Amendments.in captial cases." Id. at 606. There-

fore, review by this Court is unwarranted.

B.

The Illinois Death Penalty Statute Is

Valid As A Matter Of Federal Consti-

tutional Law And Conforms With Prior

Decision Of The Supreme Court.

Section 9-1 of the Illinois Criminal Code, Ill.

Rev. Stat., ch. 38, § 9-1 (1977), establishes a separate

sentencing procedure which must be employed before a death

sentence is imposed. This additional hearing is conducted

only "where requested by the State." I11. Rev. Stat., ch. 38,

§ 9-1(d)(1977). Petitione attacks § 9-1(d), claiming that a

prosecutor has "unlimited" and "absolute" discretion to

request a hearing and that such discretion violates the

eighth amendment. Respondent submits that the decision |

below, rejecting this argument, is correct. That decision

'. relied on the prior Illinois Supreme Court decision of People

ex rel. Carey v. Cousins, 77 Il1l.2d 531, 540-3, 397 N.E.2d 809,

814-5, (1979).

The substance of petitioner's constitutional claim

was rejected by this Court in Gregg v. Georgia, 428 U.S. 153

(1976). Gregg involved an attack on the Georgia death penalty

Statute on the grounds that the Georgia procedures left to

the "unfettered authority" of the prosecutor the decision as

to which accused murders should be considered for capital

punishment. This Court, in upholding the power of a local

prosecutor to show mercy on a convicted murderer by not

exposing him to a death penalty hearing, characterized this

attack on prosecutorial discretion as being the product of a

misinterpretation of Furman v. Georgia, 408 U.S. 238 (1972).

Gregg, 428 U.S. at 199. See also Jurek v. Texas, 428 U.S.

262, 274 (1976); Proffitt v. Florida, 428 U.S. 242, 254 (1976).

As the Court noted, there is nothing unconstitutional about

a capital punishment statute which grants a prosecutor dis-

cretion to show mercy to an individual convicted of murder.

Gregg, 428 U.S. at 199.

oL$-

"zt is true that the opinion rendered in Furmar = =—7= —

refers to a need for standards so that the sentencing authority

may focus on the particularized circumstances of the crime and

of the defendant. See Gregg, 428 U.S. at 189. That need is

satisfied by the Illinois statute which dictates that the

judge or jury which sets the sentence must first consider

a list of specific factors in aggravation and then a broad,

open-ended list of factors in mitigation before finally

determining punishment for the offender. I11. Rev. Stat.,

ch. 38, §§ 9-1(b), (c) (1977). These factors provide specific,

uniform standards to govern the imposition of captial punish-

ment. But it is indisputable that a State's Attorney in

Illinois, by charging the crime of murder and requesting the

death penalty upon conviction, does not become a part of

“the sentencing authority". That role is filled, under the

Statute, by either a judge or the jury.

This Court has, however, directly addressed the

role that a prosecutor plays as an “actor” within the

criminal justice system in seeking the imposition of capital

punishment, by stating that:

[t]he existence of these discretionary

Stages is not determinative of the issues

before us. At each of these stages an

actor in the criminal justice system makes

a decision which may remove a defendant

from consideration as a candidate for the

death penalty. Furman, in contrast, dealt

with the decision to impose the death

sentence on a specific individual who had

been convicted of a capital offense.

Nothing in any of our cases suggests that

the decision to afford an individual

defendant mercy violates the Constitution.

Furman held only, that in order to minimize

the risk that the death penalty would be

imposed on a ae ay: se pet selected group

of offenders, the decision to impose it had

to be ded by standards so that the

setencing authority would focus on the

particularized circumstances of the crime

and the defendant.

Gregg, 428 U.S. at 199.

Petitioner expresses a concern that the discretion

which the statute grants to the State to request a special

hearing will lead to arbitrary and capricious applications

of the death penalty. He claims that "[{i]let is inevitable

that the personal beliefs or office policies of the 102

-16-

between some of those on whom the death penalty is imposed

and others who are passed over." Petition at 39. This attack

_ on the integrity of the various State's Attorneys in Illinois

is a misstatement of the law. The correct rule of law in

Illinois is that it must be assumed that State's Attorneys

will perform their duties in good faith and in accordance

with the law. People ex rel. Hanrahan v. 1965 Oldsmobile,

52 I11.2d 37, 284 N.E.2d 645 (1972), rev'd on other grounds,

409 U.S. 38 (1973).

Similarly, as a matter of federal constitutional

law, the concurring opinion of Mr. Justices White, Burger

and Rehnquist in Gregg, 328 U.S. at 224-25, specifically

rejected as "untenable" the argument that prosecutors may

utilize the death penalty to act out personal prejudice:

Absent facts to the contrary it cannot

be assumed that prosecutors will be

motivated in their charging decision

by factors other than the Strength of

their case and the likelihood that a jury

would impose the death penalty if it convicts.

Unless prosecutors are incompetent in

their judgments the standards by which they

decide wheter to charge a capital felony

will be the same as those by which the jury

will decide the questions of guilt and

sentence. Thus defendants will escape

the death penalty through prosecutorial

charging decisions only because the offense

is not sufficiently serious; or because the

proof is insufficiently peng This

does not cause the system to be standardless

any more than the jury's decision to impose

life imprisonment on a defedant whose crime

is deemed insufficiently serious or its

decision to acquit someone who is robably

owes 4 but whose guilt is not established

eyond a reasonable doubt. Thus the prose-

cutor'’s charging decision are unlikely to

have removed from the sample of cases

considered by the Georgia Supreme Court

any which are truly ‘similar.’ If the

cases really were 'similar' in relevant

respects it is unlikely that prosecutors

would fail to prosecute them as capital

cases; and I am unwilling to assume the

contrary.

Likewise, an Illinois Prosecutor, in requesting a death penalty

hearing, will be motivated by the strength of his case. In

Illinois there is only one offense of murder and "no distinction

is made between capital and non-capital murder." People

v. Brownell, 79 I11.2d 508, 528, 404 N.E.2d 181, 189 (1980).

-17-—

re eee steele

wo Tilinois prosecutors will be the only basis of distinction

a S| ee me Ne FR a

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.

‘ .

The fact that a prosecutor uses discretion at both stages

of the bifurcated process, in deciding what offense to charge

and whether to request a special hearing, does not render the

process unconstitutional. The Illinois prosecutor's decision

to request a death penalty hearing is similar to a Georgia's

prosecutor's decisionto charge a capital offense.

Furthermore, it is inaccurate to say that a pro-

secutor has no standards to rely upon in deciding when to

request the death penalty procedure. In interpreting the

statute, the Illinois Supreme Court has stated that "Tujnless

the State's Attorney believes that there will be testimony

which will persuade the jury that the requisite elements for

a death sentence exist, he is unlikely to request a hearing."

People ex rel. Carey v. Cousins, 77 I11.2d 531, 543, 397

N.E.2d 809, 815 (1979). The statute lists seven separate

factors in aggravation, at least one of which must be proven

beyond a reasonable doubt before the penalty could be imposed.

Ill. Rev. Stat., ch. 38, § 9-1(b) (1977). Thus the prosecutor,

‘as is true of any litigant, is aware of what facts must be

present and which burden of proof must be satisfied before

he could successfully request capital punishment. The statute

itself serves as the guide in determining which cases are

appropriate for death penalty consideration.

Petitioner cites cases to this Court which, he

claims, exhibit "discrepancies among local prosecutorial

practice." Petition at 40. This is a highly speculative

conclusion, not based on facts in the record. Nothing

petitione has presented indicates that the prosecutors'

decisions inthe cases he referred to were based on mere

whim or caprice. Prosecutors, in deciding whether to request

a death penalty hearing, are not precluded from considering

the weight of mitigating factors they anticipate a defendant

will present.

Respondent submits that the Illinois Supreme Court

properly decided that the prosecutor's discretion to reqeust a

sentencing hearing is sufficiently guided. Therefore, further

review by this Court is unnecessary. |

Biba 4”

s ode pase emairia Riel FO eee ee ee CN Tee See

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a CONCLUSION

For all these reasons and because this case is

not ripe for review, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

| TYRONE C. FAHNER

| Attorney General

| State of Illinois

MELBOURNE A. NOEL, JR.,

CAROLYN B. NOTKOFF, 7

Assistant Attorneys General

188 W. Randolph Street (Suite 2200)

Chicago, Illinois 60601

(312) 793-2570

Counsel for Respondent