# Petition — Davis v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1428%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1014 ## Text xo. 82-6729 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 GIRVIES DAVIS, Petitioner PEOPLE OF THE STATE OF ILLINOIS, Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS THEODORE A. GOTTFRIED State Appellate Defender Office of the State Appe 300 East Monroe, Suite l Springfield, IL 62701 (217) 782-7203 COUNSEL FOR PETITIONER CHARLES M. SCHIEDEL Supervising Attorney Supreme Court Unit Office of the State Appellate Defender OF COUNSEL RECEIVED May 13,1983 Orrice ur ime CLERK SUPREME CORT US. llate Defender 00 RECEIVED io, 82 6729 MAY 1.6 1983 IN THE Orricc ur int CLERK SUPREME COURT. US SUPREME COURT OF THE UNITED STATES October Term, 1982 GIRVIES DAVIS, Petitioner PEOPLE OF THE STATE OF ILLINOIS, Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS QUESTIONS PRESENTED FOR REVIEW l. (a) Does due process permit a reviewing court to affirm a death sentence on the basis of a factual determination that was not made by the sentencing jury? (b) Does the Eighth Amendment permit the execution of a defendant in the absence of a finding at trial that he took or intended to take life? 2. Is the Eighth Amendment ban on unguided dis- cretion in capital cases violated by a sentencing scheme that places no defined limits on factors that may be considered as reasons for imposing death? 3. Does the standardless, post-charging discretion given to Illinois prosecutors to convene a death penalty hearing in murder cases violate the Eighth and Fourteenth Amendments? 4. Does a statute which fails to provide any form of comparative review of capital cases violate the Eighth and Fourteenth Amendments? - QS. Does the Sixth Amendment allow a state to on exclude blacks from a jury on the basis of race? ii. IV. Vv. TABLE OF CONTENTS Opinion Below . . . . . . . . . . . . . . . . Jurisdiction . . . . . . . . . Constitutional and Statutory Provisions Involved . . .«+«-+«-+«ee-e » °° Statement of the Case... . Reasons for Granting Certiorari. . l. THIS COURT SHOULD GRANT CERTIORARI: (a) TO RESOLVE A CONFLICT BETWEEN THE HOLDING OF THE ILLINOIS SUPREME COURT AND THE DECISION IN PRESNELL V. GEORGIA, 429 U.S. 14, 58 L.£d.20 207, 99 S.Ct. 235 (1978) THAT A REVIEWING COURT CANNOT AFFIRM A DEATH SENTENCE ON THE BASIS OF A FACTUAL DETERMINATION WHICH WAS NOT MADE BY THE SENTENCING JURY... - (b) TO RESOLVE Kk QUESTION POSED BY MR. JUSTICE WHITE'S CONCURRENCE IN LOCKETT V. OHIO, 438 U.S. 586, 57 L.Ed.20 975, 96 S.Ct. 2954 (1978) AND LEFT UNDECIDED BY ENMUND V. FLORIDA, U.S. , J3 L-Bd.2a 02 5.Ct. 33887 (1982): WHETHER THE EIGHTH AMENDMENT PERMITS THE EXECUTION OF A DEFENDANT FOR MURDER IN THE ABSENCE OF A FINDING BY THE TRIER OF FACT THAT THE DEFENDANT INTENDED TO TAKE THE LIFE OF THE VICTIM. . . >. . * . * . . * * * * 2. THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE A QUESTION CURRENTLY PEND- ING IN BARCLAY V. PLORIDA, NO. 81-6908: WHETHER THE EIGHTH AMENDMENT BAN ON UNGUIDED DISCRETION IN CAPITAL CASES IS VIOLATED BY A SENTENCING SCHEME WHICH PLACES NO DEFINED LIMITS ON THE FACTORS WHICH MAY BE CONSIDERED AS REASONS FOR IMPOSING DEATH. ... . iii. ll -14 Wie TABLE OF CONTENTS (cont.) Conclusion Appendix A Appendix B THE ILLINOIS DEATH PENALTY STATUTE VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS BY ALLOWING PROSECUTORS TO EXERCISE STANDARDLESS DISCRETION IN SEEKING THE DEATH PENALTY FOLLOW- ING A CONVICTION . « «© © © © © © © « THE ILLINOIS DEATH SENTENCING SCHEME FAILS TO PROVIDE ADEQUATE COMPARATIVE REVIEW PROCEDURES TO INSURE THAT THE DEATH PENALTY IS NOT IMPOSED IN AN ARBITRARY OR DISPROPORTIONATE MANNER MR. DAVIS WAS DENIED HIS RIGHT TC TRIAL BY AN IMPARTIAL JURY BY THE PROSECUTION'S PEREMPTORY EXCLUSION OF ALL BLACK JURORS. .. +++ + . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv. Pag: 17 24 TABLE OF AUTHORITIES Cases Barclay v. Florida, No. 81-6908 . ...+ + + «+» Clark v. Louisiana State Penitentiary, 697 F.2d 75 (1982) . . . . . . . . . . . . . . . . . Commonwealth v. Soares, 377 Mass. 593, 387 N.E.2d. 499 (1979) . .* . . . . . * .* .* * .* * . . . . . . . Enmund v. Florida, U8 » 73 L.Ed.2d 1140, aan Bice. Baek taeGe). « 6 ee ae eo 7 Furman v. Georgia, 92 S.Ct. 2726 408 U.S. 238, 33 L.Ed.2d 346, (A972) « « © + u's © OH, @\8 Gregg v. Georgia, 428 U.S. 153, 49 L.ED.2d 859, 96 S.Ct. 2909, (1976). ar i ok er ee Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir., 1981) cert. granted sub nom. Pulley v. Harris, No. 82- March 21, 1983) .. « « «© « e Henry v. Wainwright, 661 F.2d 56 (5th Cir., 1981), vacated on other grounds, U.S. » 73 L.Ed.2d 1326, 102 S.Ct. 2922, (1982), aff'd 686 F.2d 311 (lith Cir., Umit B, 1962). «~ «© ecse ee eer Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973, 98 Bieee 2954 (1978) . . . . . . . . . . . . People v. Wesley Brents, Illinois Appellate Court, Sth District, RO. 16274. . .«e«eeee2eet ee © People ex rel. carey v. Cousins, 77 I111.2d 531, 397 People v. Davis, I1l.2d , No. 54276 (Feb. 18, l ). —- Ye @ 8s oe oe ae Pe ee ee, eo 6 (ea, £2. a 4 82 Il1l1.2d 145, 411 N.E.2d People 7. oe Gleckler, People v. Greer, 79 Ill.2d 103, 402 N.E.2d 203 (1980) . People v. Donald Grotn, Sangamon County Case No. Page 14, 15 12 26 9, 11, 12 15,16,18,2 18, 22, 23 15, 24 14 11 21 17, 19 9,11,16,25 21 21 20 21 People v. Vernon Hicks, Illinois Appellate Court, ath District, WO. 16674 . + «2222728 2 eo 8 21 People v. Glen Hipkins, 97 Ill.App.3d 579, 423 N.E.2d . . . . . . . . . . . . . . . . . . . . 20 People v. Robert ST ae 70 Ill.App.3d 166, . . . . . . . . . . . . . . . . 20 People v. Michael LeCrone, Illinois Appellate Court, ath District, No. 15877 . . . . . . . . . . . . . 21 People v. James Lee, Illinois Appellate Court, 4th D str ct, No. 16273 . . . . . . . . . . . . . . . 21 People v. Lewis, 88 I11.2d 129, 430 N.E.2d 1346 (1961), cert. denied, U.S. __, 73 L.Ed.2d 1308, 102 S.ct. (1982). » ee ee eevee 17,18,19 People v. Ozark Nesbit, Sangamon County Case, No. = . . . . . . . . . . . . . . . . . . . . 21 People v. Phillip Peeples, Illinois Appellate Court, 759 . . ,. . . . . . . ,. . . . 21 People v. Michael Robinson, 87 Ill.App.3d 621, 410 N.E.20 21 (1980) . . . . . . . . . . . . . . 20 People v. Thompson, 435 N.Y.S.2a 739 (1981). + + «© + 26 People v. Walker, 84 I11.2d 512, 419 N.E.2d 1167 . . . . . . . . . . . . . . . . . . . . . . 20 People v. Wheeler, 22 Cal.3d 248, 148 Cal. Rptr. 890, . (1978) . . . . . . . . . . . . . . . 26 Presnell v. Georps 439 U.S. 14, 58 L.Ed.2d 207, . Ge 1978) . . . . . . . . . . . . . . . 9 Pprofitt v. Wainwright, 685 F.2d 1227, (llth Cir., . . . . . . . . . . . . . . . . . . . . . . 15 State v. Bartholemew, 654 P.2a 1170, 1183 Wash. . . . . . . . . . . . . . . . . . . . . . . 15 Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 759, Ss. t. 4 (1965) a's @ -s "8 6 © 76 8: BJP Soe 25 Statutes Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-1 (b) 1-8. a. et a 14 vi. Statutes (cont. ) 1ll.Rev.Stat., 1977, Ch. 38, Sec. 9-1(b) and (c) « «+ » 19 1ll.Rev.Stat., 1977, Ch. 386, Sec. 9rilC) »- >= ss % * ° 14 tll.Rev.Stat., 1977, Ch. 98, Bec. 9-1(G) - + 222 2° 17 tll.Rev.Stat., 1977, Ch. 38, Sec. 9-l(e) »- *+ 2s * * * ° 14 vii. NO. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 GIRVIES DAVIS, Petitioner PEOPLE OF THE STATE OF ILLINOIS, Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS The petitioner, GIRVIES DAVIS, prays that a writ of certiorari issue to review the judgment and opinion of the Supreme Court of Illinois which held, over two dissents, that a sentence of death was properly imposed and that the Illinois death penalty statute does not violate the Eighth Amendment's proscription of cruel and unusual punishment. OPINION BELOW The opinion of the Supreme Court of Illinois was filed on February 18, 1983, as No. 54276. It has not yet been reported. A copy of the opinion is attached hereto as Appendix A. JURISDICTION The judgment of the Supreme Court of Illinois was entered on February 18, 1983. A petition for rehearing was denied by order of the court on April 8, 1983, a memorandum of which order is attached hereto as Appendix B. This petition is @* ? being filed within sixty days of the Illinois Supreme Court's denial of rehearing. The jurisdiction of this Court is invoked under 28 U.S.C. Sec. 1257 (3). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Sixth Amendment to the Constitution of the United States provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury The Eighth Amendment to the Constitution of the United States provides: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The Fourteenth Amendment to the Constitution of the United States provides in pertinent part: No State shall...deprive any person of life, liberty, or property, without due process of law... The offense of murder in Illinois is defined in I1l.Rev. Stat., 1977, Ch. 38, Sec. 9-l(a): A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: (1) He either intends to kill or do great bodily harm to that in- dividual or another, or knows that such acts will cause death to that individual or another; or (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) He is attempting or committing a forcible felony other than voluntary manslaughter. ~” le lacing a T.V. set in his car, he was told by Holman that Holman had shot the woman. (R. 42-45) Evidence was presented that a Frieda Mueller was found shot in her home on December 8, 1978. (Vol. XI, R. 63-68) It was also shown at trial that a woman named Esther Sepmeyer had been killed on July 13, 1979. Petitioner told police he and Holman had burglarized her home but that he had told Holman tae to leave the woman alone. However, Holman shot her while petitioner was outside. (Vol. XII, R. 120-122) In closing argument, the prosecutor told the jury that petitioner was guilty of felony murder regardless of whether he intended that Mr. Biebel be killed. (Vol. XIII, R. 79- 81) The jury was then instructed, in part, that it could find the petitioner guilty of murder if it found that petitioner, or one for whose conduct he was responsible, had caused the death, and that petitioner was committing the crime of burglary. (R. 148) The jury returned a general verdict of guilty. (R. 155) A sentencing proceeding was then conducted before the same jury. The State first showed that petitioner had been convicted of murder in two unrelated cases for which he was sentenced to imprisonment. The jury found that this rendered petitioner statutorily liable to the death penalty. (Vol. XIV, R. 9-37, 213) At the second stage of sentencing, over petitioner's objection, the State introduced as non-statutory aggravation, the fact that the wife of a murder victim had given birth to a child following her husband's death. (Vol. X’, R. 36) The State was also allowed, over objection, to show the jury a video-taped conversation in which petitioner told the prosecutor that he would plead guilty in exchange for a swift execution. (R. 120-129) After being instructed that they must consider "any aggravating ... factors ... relevant to the imposition of 006 the death penalty", and deliberating for eight and one half hours, the jury determined that petitioner should be sentenced to death. (C. 215, R. 180) Petitioner's conviction and death sentence for the murder of Mr. Biebel were appealed to the Illinois Supreme Court. It was argued that petitioner could not be put to death for the murder in the absence of a finding that he actually killed or intended to kill, the victim. The exclusion of black jurors, the State's use of nonstatutory factors in aggravation, the failure to require comparative appellate review of death sentences, and the standardless discretion granted the State to seek the death penalty were also challenged on appeal. A majority of the Illinois Supreme Court held that petitioner was properly sentenced to death, even if guilty only of felony murder, because the evidence showed he had “reason to contemplate” that Mr. Biebel's life would be taken. People v. Davis, I11l.2d (Appendix A, pg. 34) The court rejected all challenges to the Illinois statute and affirmed petitioner's sentence without engaging in any form of comparative or proportionality review. People v. Davis, I1l.2d (Appendix A, pg. 15) In separate dissents, Justice Goldenhersh and Justice Simon stated that the death sentence should be vacated in light of Enmund v. Florida, U.S. __, 73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982). Justice Goldenhersh found that “nothing in the record supports [the] conjecture” that petitioner had reason to contemplate that Mr. Biebel would be killed. People v. Davis, __—«*tll.2d (Appendix A, pg. 36) (Goldenhersh, J., concurring in part and dissenting in part) Justice Simon, reasoning that the majority had expanded the definition of the term "contemplate" to include foreseeability, found that this analysis "does violence to the clear holding of Enmund that a person convicted of felony murder cannot constitutionally be put to death absent a showing that he intended that life be taken[.]" People v. Davis, I11.2d (Simon, J. dissenting) (Appendix A, pg. 46) On April 8, 1983, the Illinois Supreme Court denied a petition for rehearing. Cn REASONS FOR GRANTING CERTIORARI THIS COURT SHOULD GRANT CERTIORARI: (a) TO RESOLVE A CONFLICT BETWEEN THE HOLDING OF THE ILLINOIS SUPREME COURT AND THE DECISION IN PRESNELL V. GEORGIA, 439 U.S. 14, 58 L.éd.2d 1978) THAT A REVIEWING COURT CANNOT AFFIRM A DEATH SENTENCE ON THE BASIS OF A PACTUAL DETERMINATION WHICH WAS NOT MADE BY THE SENTENCING JURY. Girvies Davis was sentenced to death for the murder of Charles Biebel. At no point in his trial or sentencing was a finding made that he killed, intended to kill, or contemplated that Mr. Biebel's life would be taken. Moreover, the jury which convicted and sentenced Mr. Davis may have found that he had no intent to kill but was guilty only of felony murder. A majority of the Illinois Supreme Court affirmed the death sentence after finding, on review, that the evidence showed Mr. Davis had "reason to contemplate” that a life would be taken. The court based this conclusion on evidence that Mr. Davis had participated in a prior burglary where his companion had killed a person. People v. Davis, I11.2d (Appendix A, pg. 34) Regardless of whether this result accords with Enmund v. 4 Florida, U.S. , 73 %..Ea.2a 1140, 102 S.Ct. 3368 (1982), it is certainly in violation of this Court's holding o OAT in Presnell v. Georgia, 439 U.S. 14, 58 L.Ed.2d 207, 99 S.Ct. 235 (1978), that a reviewing court cannot affirm a death sentence on the basis of a factual determination not made by the sentencing jury. In Presnell, the Supreme Court of Georgia had affirmed a death sentence for murder in the course of a kidnaping with bodily injury. The court found that bodily injury had resulted from the forcible rape of one of the victims. Because this specific finding had not been made by the sentencing jury, which may have found Presnell guilty of only statutory rape, this Court held that the affirmance of the death sentence violated due process. Presnell, said this Court, was entitled to have the validity of his sentence appraised on consideration of the case as it was triec and as the issues were determined in the trial court. 58 L.Ed.2d at 211. The issue of whether Girvies Davis contemplated the taking of a life was never determined by the jury which convicted him and sentenced him to death. The affirmance of that sentence violates due process. This Court should grant certiorari and reverse the judgment of the Illinois Supreme Court. C4 -_~ (b) THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE A QUESTION POSED BY MR. JUSTICE WHITE'S CONCURRENCE IN LOCKETT V. OHIO, 438 U.S. 586, 57 L.Ed.2d 973, 99 S.Ct. 25954 (1978) AND LEFT UNDECIDED BY ENMUND V. FLORIDA, U.S. , 73 L.Ed.2d 1140, 102 S.Ct. 3368 T1582): WHETHER THE EIGHTH AMENDMENT PERMITS THE EXECUTION OF A DEFENDANT FOR MURDER IN THE ABSENCE OF A FINDING BY THE TRIER OF FACT THAT THE DEFENDANT INTENDED TO TAKE THE LIFE OF THE VICTIM. In affirming the sentence of death in this case a majority of the Illinois Supreme Court distinguished Edmund v. Florida, U.S. » 73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982) on the basis of evidence which supposedly indicated petitioner's contemplation that life would be taken. Even assuming that this determination is factually correct, the result violates the Eighth Amendment. It should be noted that one of the dissenting justices found “nothing in the record” to support this "conjecture", People v. Davis, Ill.2d ss (Appendix A, pg. 36) (Goldenhersh, J. concurring in part and dissenting in part) while another felt that the cited evidence showed no more than that death was "forseeable” People v. Davis, I11l.2d. (Appendix A, pg. 46) (Simon, J. dissenting). In his concurrence in Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973, 98 S.Ct. 2954 (1978), Mr. Justice White noted that the facts of that case: "might well permit the inference that the petitioners did in fact intend the death of the victims. But there is a vast difference between permitting a factfinder to consider a defendant's C44 ‘ willingness to engage in criminal conduct which poses a substantial risk of death in deciding whether to infer that he acted with a pur- pose to take life, and defining such conduct as an ultimate fact equivalent to possessing a purpose to kill as Ohio has done.” 57 L.Ed.2d at 1004. It is apparent from the holding in petitioner's case that Illinois has elevated conduct giving rise to an inference of intent to kill to an “ultimate fact," equivalent to possessing a purpose to kill. Because of the factual situation in Enmund v. Florida, __—iULS. __, 73 L.Ed.2d 1140, 102 S.Ct. 3368 (1982), this Court was not required to resolve the question now presented. In Enmund there were no facts to support an inference that the defendant acted with the intent to take life. Since the Enmund decision, however, the United States Court of Appeals for the Fifth Circuit has held in Clark v. Louisiana State Penitentiary, 694 F.2d 75 (1982), that, even where there was evidence that the defendant did the actual killing, because the jury was not required to find that the defendant killed or possessed an intent to kill, the Eighth Amendment, as interpreted in Enmund, does not permit his execution. The court stated: Before the Constitution will allow this conviction and sentence, however, we must know that the jury found beyond any reasonable doubt that Clark, personally, did have that mind to kill....We are left with "a level of uncertainty and unreliability [in] the fact finding process that cannot be tolerated in a capital case." Beck v. Alabama (citations omitted) ae te 694 F.2d at 78. ma, yt The decision of the Fifth Circuit is obviously at odds with the holding of the Illinois Supreme Court ir, this case. As in Clark it cannot be determined from the jury instructions and the verdicts returned that a finding was made that Girvies Davis possessed an intent to kill. Is is respectfully submitted that this situation will arise in numerous other cases where a conviction of murder and a sentence of death do not require a finding of intent to kill. This Court should grant certiorari to resolve the important constitutional question of whether such a result violates the Eighth Amendment. » ~- oP] THIS COURT SHOULD GRANT CERTIORARI TO RESOLVE A QUESTION CURRENTLY PENDING IN BARCLAY V. FLORIDA, NO. 81-6908: WHETHER THE EIGHTH AMENDMENT BAN ON UNGUIDED DISCRETION IN CAPITAL CASES IS VIOLATED BY A SENTENCING SCHEME WHICH PLACES NO DEFINED LIMITS ON THE FACTORS WHICH MAY BE CONSIDERED AS REASONS FOR IMPOSING DEATH. An Illinois defendant convicted of murder is liable to the death penalty when the State proves beyond a reasonable doubt the existence of one or more statutorily defined factors. Ill.Rev.Stat., 1977, Ch. 38, Sec. 9-l(b)1-8. If one of these factors is found, the sentencing jury is statutorily required to consider any “additional aggravating factors” relevant to the imposition of the death penalty. These factors may include but need not be limited to the statutory factors necessary to render the defendant liable to the death penalty. Ch. 38, Sec. 9-l(c). The nature of the additional factors in aggravation is not defined by statute. The admissibility of these nonstatutory factors is not limited by the rules of evidence. Ch. 38, Sec. 9-l(e). Thus, when an Illinois defendant has been found liable to the death penalty there are no restrictions on the factors which may then be considered as reasons for actually imposing death on that defendant. It is respectfully submitted that this scheme violates the Fighth Amendment ban on unguided sentencing discretion in capital cases. This conclusion follows from the holding wf the United States Court of Appeals for the Fifth Circuit in Henry v. Wainwright, “ he SS 661 F.2d 56 (5th Cir., 1981), vacated on other grounds, U.S. __, 73 L.Ed.2d 1326, 102 S.Ct. 2922 (1982), aff'd 686 P.2d 311 (llth Cir., Unit B, 1982). The sentencing jury in Henry was instructed that in considering aggravating circumstances the jurors were not limited to Statutorily defined factors. 661 F.2d at 57. The Fifth Circuit held that this instruction improperly broadened sentencing discretion and violated this Court's decision in Furman v. Georgia, 408 U.S. 238, 33 L.Ed.2d 346, 92 S.Ct. 2726 (1972). Illinois juries in capital cases are required to consider undefined nonstatutory factors in aggravation. The jury in petitioner's case was instructed to consider "any" aggravating factors relevant to the imposition of the death penalty. (C. 215) The Henry decision has been followed in Profitt v. Wainwright, 685 F.2d 1227 (llth Cir., 1982), and State v. Bartholemew, 654 P.2d 1170, 1183 Wash. (1982); but see, Harris v. Pulley, 692 F.2d 1189, 1194 (9th Cir., 1982), cert. granted sub nom. Pulley v. Harris, No. 82-1095 (Mar. 21, 1983) The issue of whether a death sentence can be premised on the consideration of nonstatutory aggravating factors is currently before this Court in Barclay v. Plorida, No. 8l- 6908, (oral argument held March 30, 1983.) In its effort to obtain a death sentence for Girvies Davis, the State of Illinois was allowed to introduce nonstatutory aggravation regarding such inflammatory and irrelevant factors as the birth of a child to the widow of a murder C45 victim and the petitioner's erstwhile offer to plead guilty in exchange for a prompt execution. The Illinois Supreme Court approved the use of this nonstatutory aggravation, holding that the evidence was properly admitted for the consideration of the jury in determining the penalty to be imposed. People v. Davis, I1l.2d . (Appendix A, pg. 23, 27) The unrestricted consideration of undefined nonsteatutory aggravation will inevitably lead to the kind of arbitrary and capricious imposition of death condemned by this Court in Furman v. Georgia. It will increase the danger that death will be imposed for emotional rather than rational reasons and will preclude any possibility of meaningful appellate review. There will be no way to determine if one sentencing jury has considered the same undefined aggravating factors as another and thus no way to meaningfully distinguish cases in which death is imposed from those in which the defendant's life is spared. For these reasons this Court should grant certiorari and reverse the sentence of death affirmed by the Illinois Supreme Court. 3. THE ILLINOIS DEATH PENALTY STATUTE VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS BY ALLOWING PROSECUTORS TO EXERCISE STANDARDLESS DISCRETION IN SEEKING THE DEATH PENALTY FOLLOWING A CONVICTION. The Illinois Death Penalty Statute is unique. It is the only death statute that permits the prosecutor to exercise discretion to decide who shall be spared from the ultimate penalty during the middle of a death penalty proceeding. In every other state, a death penalty hearing automatically follows the conviction. After a conviction for murder, a death penalty hearing can be held only “[w]here requested by the State.” I11.Rev.Stat., 1977, Ch. 38 Sec. 9-l(d). The Supreme Court of Illinois recognized that this statutory language places the decision on whether to convene a death hearing solely and squarely in the hands of the Illinois prosecutor. People ex rel. Carey v. Cousins, 77 I11.2d 531, 397 N.E.2d 809 (1979). Four of the seven Justices now sitting on the Supreme Court of Illinois believe that the Illinois Statute violates the Eighth Amendment. See People v. Lewis, 88 Ill.2d 129, 430 N.E.2d 1346 (1981). In the Cousins case, three Justices -- Ryan, Clark, and Goldenhersh -- joined in a dissent. All three opined that giving the Illinois prosecutor the crucial decision, without any guiding standards, of who shall be spared from the ultimate penalty, violated the Eighth Amendment. A fourth, Mr. Justice Simon, adopted this position in Lewis and has adhered to it ae l in subsequent cases. Although the three Cousins dissenters reaffirmed their views in Lewis, each refused to join Justice Simon for reasons ranging from stare decisis to reliance that this Court would review the case. People v. Lewis, 430 N.E.2d at 1364. (Chief Justice Goldenhersh and Justices Ryan and Clark, concurring). It is apparent from this Court's decisions that four of the seven Illinois Supreme Court Justices are correct in their view that the statute is unconstitutional. This Court in Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909 (1976), stated: While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishment, it did recognize that the penaity of death is different in kind from any other punishment imposed under our System of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. 428 U.S. at 188, Applying Furman v. Georgia to the Statutes being reviewed, this Court in Gregg held: Furman mandates that where discretion is afforded a sentencing body on a matter SO grave as the determination of whether a human life should be taken or spared, that discretion must be Suitably directed and limited so as to minimize the risk of wholly eeretien and capricious action. Emphasis adde 2S. at ° 1 Justice Simon was not sitting on the court in November, 1979, when Cousins was decided. e418 In Illinois, the prosecutor has the unfettered discretion to decide whether to convene a death penalty hearing. The failure to “suitably direct" the prosecutor's post-trial discretion is the legal equivalent of the failure to "suitably direct" the sentencing body's discretion. Stated ar ther way, by requiring the prosecutor to exercise standardless discretion during a death penalty proceeding, Illinois has recreated the pre-Furman problem. In upholding the constitutionality of the Illinois death penalty statute, the Illinois Supreme Court has relied on the majority opinion in Cousins. People v. Lewis, 430 N.E.2d at 1354. In Cousins, the Court recognized the the Illinois statute contained no guidelines to govern the prosecutor's decision whether to convene a death penalty hearing. However, the court referred to the aggravating and mitigating factors listed in I1l.Rev.Stat., 1977, Ch. 38, Sec. 9-1(b) and (c). The court then assumed that the pro- secutor would be guided by these factors. However, as Justice Ryan pointed out in his dissent in Cousins, there is no requirement in the statute that the prosecutor be so guided, and therefore the prosecutor is free to ignore these factors in making his decision. People ex rel. Carey v. Cousins, 397 N.E.2d at 822. (Justice Ryan, dissenting). In fact after nearly 6 years of operation of the Illinois Statute, facts and cases are now available to demonstrate the arbitrary and capricious exercise of discretion by local prosecutors which demonstrates the unconstitutionality of the statute. For example, in People v. Greer, 79 Ill.2d 103, 402 N.E.2d 203 (1980), both the Illinois Attorney General and the local prosecutor admitted that the local prosecutor's predecessor had erroneously (and successfully) sought imposition of the death penalty. In two other cases, the prosecutors reversed their own decisions to seek imposi- tion of the death penalty for reasons apparently unrelated to either the possible existence of an aggravating factor or the prosecutor's evaluation of the evidence. See People v. Glen Hipkins, 97 I1l.App.3d 579, 423 N.E.2d 208 (1981); People v. Michael Robinson, 87 Il1l.App.3d 621, 410 N.E.2d 121 (1980). In People v. Walker, 84 I11l.2d 512, 419 N.E.2d 1167 (1981), the local prosecutor initially agreed to allow the defendant to plead guilty and receive a sixty-year sentence. The defendant later withdrew the plea. The prosecutor, citing "mistake" and concern for “conservation of tax dollars" as affecting his earlier opinion, changed his mind and requested the death penalty after defendant pleaded guilty once again. A good example of the arbitrariness which exists in practice appears in a comparison of two similar central Illinois jurisdictions, Champaign and Sangamon Counties. Since the enactment of the Illinois Death Penalty Statute, prosecutors in Champaign County have sought the death penalty in every murder case in which they felt an aggravating factor was present. See People v. Robert Kirkpatrick, 70 Ck Ill.App.3d 166, 387 N.E.2d 1284 (1979), (double murder); People v. Jerry Gleckler, 82 I11.2d 145, 411 N.E.2d 849 (1980) (double murder); People v. Michael LeCrone, Illinois Appellate Court, 4th District, No. 15877 (murder-robbery) ; People v. Phillip Peeples, 4th District, No. 16759 (murder- attempted rape). This practice is in sharp contrast to the apparent policy in nearby Sangamon County, where although five murder defendants were subject to the death penalty because a statutory aggravating factor existed, the prosecution has never sought the death penalty. See People v. Ozark Nesbit, Sangamon County Case No. 78-CF-537 (second murder conviction); People v. Wesley Brents, 4th District, No. 16274 (murder- robbery); People v. James Lee, 4th District, No. 16273 (murder-robbery); People v. Vernon Hicks, 4th District, No. 16674 (murder-attempted murder-armed robbery); People v. Donald Groth, Sangamon County Case No. 80-CF702 (second murder conviction). The different results in these cases demonstrate that the fear of guideless prosecutorial discretion under section 9-1(d), to which Justice Ryan's dissent in Cousins referred, has now been borne out in practice. It is no answer to the constitutional problem to argue that Gregg decided the issue. This Court in Gregg recognized that certain types of pre-trial prosecutorial discretion are unavoidable. One of the arguments urged by the defendants in Gregg and its companion cases was that the inherent power of the prosecutor to undercharge, not charge at all, and plea bargain, all of which would allow a particular defendant to } escape the death penalty, rendered all death penalty statutes unconstitutionally arbitrary and capricious. In rejecting this argument, the Court viewed these prosecutorial decisions to be unavoidable and an integral part of our system. Gregg allows the Illinois prosecutor to make the traditional re-trial choices. But, the Illinois prosecutor is also given the power under the Illinois statute to make a post-trial choice and a vital one at that: whether to convene the penalty hearing and put the defendant's life in jeopardy. It is this choice, which was not an issue in Gregg, that we challenge here on Eighth Amendment grounds. Thus, one major difference between the prosecutor's inherent pre-trial discretion attacked in Gregg and the prosecutor's discretion attacked here is that the former is unavoidable while the latter is fully avoidable. * There is another major difference between the discretion approved in Gregg and that of Illinois prosecutors. In Georgia, the only way for a prosecutor to avoid a death penalty hearing is to refuse to charge NE 2d 1046. the Supreme Court in Swain slated thal “|t jhe essential mature of the peremptory chalienge is thal it is ore exercised Withoul @ Peason Slated, wilhoul inquiry and without being subject Ww UM court's control” (4 US 22. 2, 6 SC B24, 66, 13 L.Ed 2d 759, 772), the court observed later in the Opinion Unat the pur- emptor) challenge iw not designed wo facili- late or justify @ system which resulls in denying black perorm “the same mgt and Opportunity W participate in the admuinis- tration of justice enjoyed by the white poy- viation” (S80 US B2, 24, & S.Ct B24, =, 13 L.Ed 2d 759, 774.) Thus, | construe Swain as recognizing that peremptory ehal- lenges are not Wally outside Une control of the tra! court Second, | beleve Unat the strength of the Swain holding has been diminushed by later Gecisions under the sixth amendment in Duncan v. Louisiana (1968), 891 U.S 145, SCt 144, 2 LEd.2d 491, and Taylor v. Louisiana (1975), 419 U.S $22, 95 S.Ct 692, 42 L Ed 24 68) §=These decisions recognized “the fair