Petition — FORD v. STRICKLAND (No. 82-6923)
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82-6928 FILED
JUN 14 ig
NO. ALEXANDER L. STEVag.
IN THE —
SUPREME COURT OF THE UNITED STATES
October Term, 1982
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ALVIN BERNARD FORD,
Petitioner,
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CHARLES G. STRICKLAND, JR., Warden,
Florida State Prison, LOUIE L. WAINWRIGHT,
Secretary, Department of Offender Rehabilitation,
State of Florida; JIM SMITH, Attorney General,
State of Florida,
Respondents.
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PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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MARVIN E. FRANKEL
Kramer, Levin, Nessen,
Kamin & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
RICHARD H. BURR, III
224 Datura Street, 13th Floor
West Palm Beach, Florida 33401
(305) 837-2150
LAURIN A. WOLLAN, JR.
1515 Hickory Avenue
Tallahassee, Florida 32303
Counsel for Petitioner
QUESTIONS PRESENTED
t. Does the Florida Supreme Court's systematic, secret,
ex parte solicitation and consideration of extra-record,
prison-generated psychological evaluations and similar materials
of questionable reliability concerning capital appellants in
cases pending before it for sentencing review violate the
fifth, sixth, eighth and fourteenth amendments?
ye May a death sentence that is based in part upon im-
properly considered aggravating circumstances be affirmed and
executed pursuant to an appellate rule that explicitly dis-
regards evidence of nonstatutory mitigating circumstances?
36 Does the eighth amendment requirement of reliability
in capital sentencing permit the sentencer to impose death
without any guidance concerning the level of certainty that it
must have in determining that sufficient aggravating circum-
stances exist, that they outweigh mitigating circumstances, and
that death is accordingly the appropriate punishment?
4. Did the Eleventh Circuit err in upholding jury instruc-
tions that a reasonable juror might well have understood to pre-
clude consideration of nonstatutory mitigating circumstances
through:
(i) a disregard of Sandstrom v. Montana, 442 U.S. 510
(1979), thus creating a conflict with the Fifth Circuit's
condemnation of identical jury instructions in Washington v.
Watkins, 655 F.2d 1346 (5th Cir. 1981), cert. denied, 456 U.S.
949 (1982); and
(ii) a failure to recognize that instructional error
under Lockett v. Ohio, 438 U.S. 586 (1978), infects a capital
sentencing trial with prejudice sufficient to satisfy the
requirements of Wainwright v. Sykes, 433 U.S. 72 (1977), and
United States v. Frady, 456 U.S. 152 (1982)?
TABLE OF CONTENTS
QuestionS PreSented w.usvececvvscvvevveevevesvesvecveces
Pable Of AUCHOTICIESS weccveceecersscrccvicecvsessessnes
Other Authorities SSVOHSSESHPSPSSCHASASSCOSOADSOVC OVE SCOAESSE eee es
Citations to Opinions Below wecseevesevevesveceesesccens
Jurisdiction esveua sees seeevnoscseosvoe se eaoeoesseegeuz ees esree ares)
Constitutional and Statutory Provisions Involved .
Statement Of the CASE ceocccecsvdecveseecesetenesessseses
A. Course of Prior ProceedingS wiceceevevvesevvees
i
(1)
(2)
Facts Relevant to the Questions Presented...
Petitioner's Challenge to the Florida
Supreme Court's Ex Parte Solicitation,
Receipt, and Consideration of Evaluative
Materials Concerning Capital Defendants
Whose Appeals Were Before the Court. ..sseees
Petitioner's Challenge to the Florida Rule
Permitting the Affirmance of a Death
Sentence Based in Substantial Part Upon
Legally Improper Aggravating Circum-
stances When There Are Only Nonstatutory
Mitigating Circumstances. ose eae nee deen
Petitioner's Challenge to Florida's Failure
to Require That the Sentencer Be Convinced
Beyond a Reasonable Doubt That Aggravating
Circumstances Outweigh Mitigating Circum-
SCANCOS. covoccccssesseccvvvsessvcsevsessses
Petitioner's Challenge to Instructions That
Might Well Lead a Reasonable Juror to
Conclude That the Jury was Forbidden to
Consider Relevant Mitigating Circum-
stances. TETTTITET CC Tier
Reasons For Granting The Writ w.ceveevesvevevvvsessece
I.
THE FLORIDA SUPREME COURT'S SECRET, EX
PARTE SOLICITATION, RECEIPT, AND CONSIDERA~
TION OF REPORTS FROM STATE EXECUTIVE AGENCIES
CONCERNING CAPITAL LITIGANTS WHOSE APPEALS
WERE THEN PENDING FOR SENTENCING
REVIEW PRESENT VITAL CONSTITUTIONAL QUES~-
TIONS WHICH SHOULD BE RESOLVED BY THIS COURT
Page
iv
vi
14
18
17
+
IV.
THE COURT SHOULD GRANT THE WRIT TO DETERMINE
WHETHER THE EIGHTH AMENDMENT PERMITS THE
EXECUTION OF A DEATH SENTENCE BASED IN PART ON
IMPROPER AGGRAVATING CIRCUMSTANCES WHEN
THE APPELLATE RULE CONDONING THIS RESULT
EXPRESSLY DISREGARDS EVIDENCE OF NONSTATUTORY
MITIGATING CIRCUMSTANCES
THE COURT SHOULD GRANT CERTIORARI TO DETERMINE
WHETHER PERMITTING A JURY AND JUDGE TO IMPOSE
THE DEATH SENTENCE WITHOUT ANY GUIDANCE CON-
CERNING THE LEVEL OF CERTAINTY THEY MUST HAVE
IN THE CORRECTNESS OF THE JUDGMENT THAT DEATH
IS APPROPRIATE SATISFIES THE STANDARDS OF
RELIABILITY CONSTITUTIONALLY REQUIRED IN
CAPIT
THE COURT SHOULD GRANT CERTIORARI TO RESOLVE A
CONFLICT BETWEEN THE CIRCUITS REGARDING THE PROPER
CONSTITUTIONAL ANALYSIS OF CAPITAL SENTENCING
INSTRUCTIONS THAT A REASONABLE JUROR COULD UNDERSTAND
TO PRECLUDE CONSIDERATION OF NONSTATUTORY MITIGATING
FACTORS AND TO DETERMINE THE PROPER APPLICATION OF
PROCEDURAL DEFAULT PRINCIPLES TO THIS INSTRUCTIONAL
ERROR
A.
AL SENTENCING
The en banc court's
Fifth Circuit.
The court of appeals' holding that there
was insufficient "prejudice" under Wainwright
v. Sykes, 433 U.S. 72 (1977), to excuse a
procedural default presents an important
“eee eevenee
oeneeoevevee ever
treatment of the jury
instructions conflicts with this Court's
precedents regarding analysis of the con-
stitutionality of jury instructions and with
the resolution of the same issue by the
question of federal law that has not been,
but should be,
settled by this Court.
- iii -
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Page
28
32
36
37
42
Addington v.
Alvord v.
Andres v.
Antone v.
Barclay v.
U.S.
TABLE OF CASES
341 So.2d 765
380 So.2d 423
396 So.2d 184
United States,
City of Columbia,
Bonner v.
1981)
Chapman v.
Cooper v.
County Court of Ulster County v. Allen,
(1979)
Dobbert v.
Vv.
V.
~<
Edwards v.
Vv.
Vv.
City of Prichard, 661 F.2d 1206
Wainwright, 392 So.2d 1327
Wainwright,
California,
336 S0.2d 1133
416 So.2d 808
375 So.2d 1069
409 So.2d 1053
373 So.2d 895
346 So.2d 998
Florida,
374 So.2d 496
State,
407 So.2d 907
State,
Ford v. Strickland, 676 F.2d 434 (llth Cir. 1982) .... 4
Ford v. Strickland, 696 F.2d 804 (lith Cir.
1982) . . . . . . . . . . . . . . . . . . . 3-4, passim
Furman v. Georgia, 408 U.S. 238 (1972) . . -. « « « « 32, 43
Gardner v. Florida, 430 U.S. 349
CTeet) s « « ocleve « « Oe 39,-20, Bhs We, Me eee ee
Godfrey v. Georgia, 446 U.S. 420 (1980) ..... « 29, 31
Goode v. State, 365 So.2d 381 (Fla. 1979) . . « « «© « » 43
Goode v. State, 403 So.2d 931 (Fla. 1981)... . +s. 43
Green v. Georgia, 442 U.S. 95 (1979) . 2. «© «© «© © © © «© «© 45
Gregg v. Georgia, 428 U.S. 153 (1976) . ». « «© «© «© © w @ 32
Hall v. State, 420 So.2d 872 (Fla. 1982) . . . « « «© « « 43
Halliwell v. State, 323 So.2d 557 (Fla. 1975) ..... 26
Harvard v. State, 375 So.2d 833 (Fla. 1981) .....-+ 26
Henry v. Wainwright, 661 F.2d 56 (5th Cir. 1981)
(Unit B), vacated and remanded, U.S. , 102 S.Ct.
2922 (1982), judgment reinstated, 686 F.2d 311 (5th
Cir. 1982) (Unit B), cert. pending (No. 82-840). . 30
People v. Hines, 790 P.2d 398 (Cal. 1964) . . «» « « » 46
Lockett v. Ohio, 438 U.S. 586
Sei. « « = « ss 6 O27 209 3,32, Me We Oe oe
McCaskill v. State, 344 So.2d 1276 (Fla. 1977) .... 26
McCrae v. Wainwright, 422 So.2d 824 (Fla. 1982)... 23
Magill v. State, 386 So.2d 1188 (Fla. 1960) ...... 24
Magill v. State, 428 So.2d 649 (Fla. 1983) ... «ss 24
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449
(1958) . . . . . . . . . . . . . . . . * . . . . * . 43
Peek v. State, 395 So.2d 492 (Fla. 1981) . . 2. «© «© « « « 27
Proffitt v. Florida, 428 U.S. 242
oo, | UE a an SS, 19, 14, 16, 236 Sey tees
33, 35, 37, 4
Roberts (Stanislaus) v. Louisiana, 428 U.S. 325
(1976) . . * . . . . J ere . . . . . . . . . . 44
Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977) ... 44
Ruffin v. State, 420 So.2d 591 (Fla. 1982) .....+s+-. 43
Sandstrom v. Montana, 442 U.S. 510
(1979) . . . . . . . . . . . . . ivy 36, cy 38, 39, 40
Santosky v. Kramer, 455 U.S. 745 (1982) . . . «. « « « «13, 33
Smith v. North Carolina, U.S. > &tBs: S.Cks. 475
(1982) . . . J . . . . . . . . . . . . . . . . . . . . 34
Smith v. State, 400 So.2d 956 (Fla. 1981) «© « « « «© « « 43
Songer v. State, 322 So.2d 481 (Fla. 1975), vacated on
other grounds, 430 U.S. 952 (1977) . . «© « © «© »© © «© «© 43
Songer v. State, 419 So.2d 1044 (Fla. 1982) ....+.-+.+. 43
Speiser v. Randall, 357 U.S. 573 (1958) . «. « «© «© « «© « 34
State v. Dixon, 283 So.2d 1 (Fla. 1973) . .. «+. 10, 25, 34
Straight v. Wainwright, 422 So.2d 827 (Fla. 1982) .... 43
Stromberg v. California, 283 U.S. 359 (1931) . . .- «++. 30
Sumner v. Mata, 449 U.S. 539 (1981) . . «© © «© «© © © © © @ 27
Taylor v. Kentucky, 436 U.S. 478 (1978) . ... ++. 36, 42
Thomas v. State, 421 So.2d 160 (Fla. 1982) . . . «6 «© « « « 43
United States v. Frady, 456 U.S. 152
(1982) . . . . . . . . . . . . . . . . . . 36, 39, 44, 46
Vasil v. State, 374 So.2d 465 (Fla. 1979) . . . «© « «© « « 26
Wainwright v. Sykes, 433 U.S. 72 (1977) .. 15, 16, 30, 36, 37
Washington v. Watkins, 655 F.2d 1346 (5th Cir.), reh.
denied with opinion, 662 F.2d 1116 (5th Cir. 1981),
cert. denied, 456 U.S. 949 (1982) . . 15, 16, 17, 36, 37,
38, 40, 41, 44, 45
In re Winship, 397 U.S. 358 (1970) . . « « « « 13, 34, 35, 38
Woodson v. North Carolina, 428 U.S. 280
(1976) . . . . . . . . . . . oe . . . . . 32s 34, 44, 45
Zant v. Stephens, 456 U.S. 410 (1982) . . 12, 30, 31, 33, 35
OTHER AUTHORITIES
§ 921.141, Florida Statutes (1973) . . . »« « « « «© « «+ 2, 10
§ 921.141(2) Florida Statutes (1979) 12, 33
§ 921.141(3) Florida Statutes (1979) . . . « « « « « «12, 33
De Mamees. OB BEeUIG) 2 es te eo we te wm ewe om woe to 21
28 0.8.6. 8 1254(1) . . . . . . . . . . . . . . . . . . ]
- vi-
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
ALVIN BERNARD FORD,
Petitioner,
-VvV~=
CHARLES G. STRICKLAND, JR., Warden,
Florida State Prison, LOUIF L. WAINWRIGHT,
Secretary, Department of Offender Rehabilitation,
State of Florida; JIM SMITH, Attorney General,
State of Florida,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Petitioner, ALVIN BERNARD FORD, prays that a writ of
certiorari issue to review the en banc judgment of the United
States Court of Appeals for the Eleventh Circuit filed January
7, 1983. Rehearing was denied on March 17, 1983.
CITATIONS TO OPINIONS BELOW
The opinion of the court of appeals is reported at 696 F.2d
804 (TIER CAE 1983), and is set out at pages 1a-80a of the
Appendix. The order denying rehearing is set out at App. 81a.
JURISDICTION
The judgment and opinion of the court of appeals were filed
on January 7, 1982, and petitioner's timely petition for rehearing
was denied on March 17, 1983. Jurisdiction of this Court is in-
voked under 28 U.S.C. § 1254(1).
67 Citations to the Appendix accompanying this petition are desig-
nated App. ,
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the fifth amendment to the Constitution
which provides in relevant part:
No person ... shall be compelled in any
criminal case to be a witness against
himself ...;
the sixth amendment to the Constitution which provides in
relevant part:
In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted
with the witnesses against him... and to have
the assistance of counsel for his defense;
the eighth amendment to the Constitution which provides in
relevant part:
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel
and unusual punishments inflicted;
and the fourteenth amendment to the Constitution which provides
in relevant part:
[N]or shall any State deprive any
person of life, liberty, or property,
without due process of law ....
It also involves Section 921.141, Florida Statutes (1973),
which is set out at App. 82a-83a.
STATEMENT OF THE CASE
A. Course of Prior Proceedings
On July 26, 1974, an indictment was filed in the Circuit
Court for the Seventeenth Judicial Circuit, Broward County,
Florida, charging petitioner with the July 21, 1974, murder of
police officer Dimitri Walter Ilyankoff during the course of
1/
the attempted robbery of a restaurant. RPC. 254. On
i/ References to the various portions of the record relevant to
this proceeding are designated as follows:
(a) transcript of the trial in the Circuit Court for the
Seventeenth Judicial Circuit of Florida, held December 9-18, 1974,
a6 °F";
(b) record on appeal to the Supreme Court of Florida follow-
ing the denial of post-conviction relief as "RPC";
(ec) orders of the District Court and other documents filed
in the District Court, as "R"; and
(d) a supplement to the foregoing District Court record,
known as the "FIRST SUPPLEMENTAL RECORD ON APPEAL," as "SR."
December 17, 1974, following an eight-day trial, petitioner was
convicted of murder in the first degree. T. 1300-1301. On
January 6, 1975, following a jury recommendation of death, Mr.
Ford was sentenced to death.
The Supreme Court of Florida affirmed the conviction and
death sentence on July 18, 1979, and denied rehearing on
September 24, 1979. Ford v. State, 374 So.2d 496 (Fla. 1979);
App. 84a-91a. On April 14, 1980, certiorari was denied. 445
U.S. 972 (1980).
It was subsequently discovered that, in connection with its
appellate review of capital cases, the Florida Supreme Court had,
ex parte, regularly solicited and reviewed prison-generated
psychological reports and similar evaluations of death-sentenced
inmates. On September 29, 1980, Mr. Ford joined with 122 other
capital defendants in filing an application for extraordinary
relief and petition for writ of habeas corpus in the Florida
Supreme Court challenging this practice. That court dismissed
the application for failure to state a claim upon which relief
could be granted. Brown v. Wainwright, 392 So.2d 1327 (Fla.
1981); App. 92a-99a. This Court denied certiorari. 454 U.S.
1000 (1981).
Mr. Ford then commenced state post-conviction proceedings.
His motion for post-conviction relief pursuant to Fla. R. Crim.
P. 3.850 was denied by the Circuit Court in Broward County, and
its denial was affirmed by the Supreme Court of Florida. Ford
v. State, 407 So.2d 907 (Fla. 1981); App. 100a-103a. His sub-
sequent petition for habeas corpus in the United States District
Court for the Southern District of Florida was denied in an
unreported order and opinion, App. 104a-118a, and Mr. Ford
appealed. On April 15, 1982, a divided panel of the Eleventh
Circuit affirmed the District Court's denial of relief. Ford v.
Strickland, 676 F.2d 434 (11th Cir. 1982); App. 119a-141a.
Rehearing en banc was granted. The en bane court -- despite
sharp division over four of the seven issues presented -- affirmed
the district court's judgment. Ford v. Strickland, 696 F.2d 804
(11th Cir. 1982); App. 1ta-80a. Further rehearing was denied. App.
Bla.
B. Facts Relevant to the Questions Presented
This petition seeks review of a crucial. decision issued by
the Eleventh Circuit en banc "for the purpose of resolving for
this Circuit several important issues that repeatedly arise in
capital cases." App. da” The issues were the subject of
sharp division within the en banc court below. ‘The facts giving
rise to each issue are set forth seriatim.
(1) Petitioner's Challenge to the Florida Supreme
Court's Ex Parte Solicitation, Receipt, and
Consideration of Evaluative Materials Concerning
Capital Defendants Whose Appeals Were Before
the Court.
Since at least as early as 1975, the Supreme Court of Plorida
has, without the knowledge of the appellants or their counsel,
requested, received, and considered materials from state execu-
tive officials relating to death-sentenced appellants in pending
appeals. The existence of this practice has not been disputed by
respondents or the Florida court. Nor can it be in light of the
extensive documentary proof. The only thing not certain is the
full extent of the practice, which, because of its secret nature,
may never be known.
When the practice came to light, a proceeding was insti-
tuted by Mr. Ford and other Florida capital appellants asserting
2/ Eleven of the twelve active judges participated in the en banc
proceeding. The twelfth, Judge Hatchett, was disqualified because
of his participation in Mr. Ford's case while he had been a
Justice of the Supreme Court of Florida.
numerous violations of their federal constitutional rights.
Since the proceeding complained of conduct by the Supreme Court
of Florida, it was filed directly with that court as an applica-
tion for extraordinary relief and petition for writ of habeas
corpus. The petition and its appendices are set out in the
3/
Supplemental Appendix. Citing considerations of "judicial
economy because of the common issues of law and fact presented,"
Supp. App. 2b, more than a hundred prisoners under sentences of
death joined in the petition.
Petitioners alleged that the Supreme Court of Florida
has engaged in the continuing practice of requesting
and receiving information concerning capital appellants
which was not presented at trial and not a part of the
trial record or record on appeal. The information
includes but is not limited to: presentence investiga-
tion reports concerning the capital offense under
review or prior convictions unrelated to the capital
offense; psychiatric evalutions or contact notes;
psychological screening reports; recitations of a
capital defendant's refusal to submit to a psychiatric
examination from which a report could be prepared;
post-sentence investigetion reports; probation or
parole investigation reports; probation and state
prison classification and admissions summaries ... +
Except as to some of the presentence investi-
gations pertaining to the offense on appeal the
above information was requested and received without
notice to the capital appellants or their attorneys.
Supp. App. 2b-3b. An appendix to the petition documented
the practice with copies of correspondence from the Office of
3/ An attempt was made to introduce the materials contained in
the Supplemental Appendix into the record in Mr. Ford's case in
the district court. It was, however, foreclosed by the district
judge, who stated that he was "only interested in this case, and
all that about other cases is totally irrelevant.” SR. 9.
Nonetheless, because the Supplemental Appendix contained only the
pleadings filed in the Florida Supreme Court, the court of
appeals below treated those materials as properly before it.
References to the Supplemental Appendix are designated as
Supp. App. .
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Supp. App. 118b. This documentation was, perforce, “merely.
exemplary,” Supp. App. 3b, because of the secret nature of
the communications to and from the court and the fact that
"a quantity of the information received by the Court, and of
records reflecting the practice of requesting and receiving it
.e+, has at the Court's direction been destroyed or purged from
{the) . . . Court's files.” Id.
The petition asserted that the Florida court's practice
violated the petitioners’ rights “under the Due Process Clause of the
Fourteenth Amendment to the Constitution of the United States,”
Supp. App. 3b, “the right to counsel as guaranteed by the Sixth
and Fourteenth Amendments,” id., "the Eighth Amendment," id.,
"tne privilege against self-incrimination as guaranteed by
the Fifth Amendment,” id., and "the right to confrontation
aS guaranteed by the Sixth Amendment.” Id. at 4b. Each of
these contentions was briefed. Id. at 4b-13b.
Petitioners moved for the appointment of a special master
and for hearings to resolve the factual issues if any of their
allegations were materially controverted. But they never
were controverted, When the court issued an order to show
cause, Supp. App. 184b, the respondent replied by filing a motion
to dismiss that neither disputed the facts alleged in the petition
nor alleged any contrary facts. Id. at 185b-193b.
4/ As the response to this particular request demon-
Strates, the Department typically did all it could to provide the
"latest" evaluation possible. The Department's response enclosed
.s. the latest psychiatric report available on
(Mr. Francis]. Because there is not a more recent
evaluation available, I have requested the staff at
Florida State Prison to complete an updated psycholog-
ical evaluation and forward it to my office. This
report should be available in the very near future.
Supp. App. 119b.
5/
After oral argument, the Supreme Court of Florida denied
6/
the petition on the merits as a matter of law. It held that:
Even if petitioners’ most serious charges were
accepted as true, as a matter of law our view of
the non-record information petitioners have
identified is totally irrelevant either to our
appellate function in capital cases as it bears
on the operation of the statute, or to the validity
of any individual death sentence.
App. 96a. Drawing a distinction between sentence "review" and
sentence “imposition,” id.; see also id. at 98a, the court con-
cluded that: "Since we do not ‘impose’ sentences in capital
[7/]
cases, Gardner presents no impediment to the advertent or
inadvertent receipt of some non-record information.” Id. at 97a.
"(N]on-record information we may have seen, even though never
presented to or considered by the judge, the jury, or counsel,
plays no role in capital sentence 'review.'" Id. at 97a-98a.
Accordingly: "As we view the case, .. + appellate review
can never be compromised, in the constitutional sense required
8/)
by Proffitt, by the receipt of any quantity of non-record
information." Id. at 98a n.16. “The upshot... is that
petitioner's claims are untenable." Id. at 98a. All relief
was denied as to each petitioner. Id.
5/ The transcript of the oral argument before the Supreme Court
of Florida is contained in Supp. App. 194b-257b.
6/ The court criticized the procedure of joining multiple habeas
corpus petitioners in a single petition, and said that "[iJn the
future, attempts to create a class ‘action habeas corpus proceeding
in situations such as this will be rejected summarily." App. 95a.
However, in the present case, “[t]o avaid absurd technicalities,”
the court "decline(d] to treat each petition as if it were sep~
arately filed and enter a separate order or opinion on each.
Rather, our disposition of Brown's petition effectively disposes
of all claims for relief of those petitioners who have joined with
Brown." Id. The court's final order was that "(t]he petitions
of Brown and others for writs of habeas corpus and for other extra-~
ordinary relief are denied.” App. 98a.
7/. ‘Gardner _v. Florida, 430 U.S. 349 (1977).
8/ Proffitt v. Florida, 428 U.S. 242 (1976).
The Brown petitioners sought review in this Court, but cert-
iorari was denied. Brown v. Wainwright, 454 U.S. 1000 (1981).
Dissenting from this denial, Justices Marshall and Brennan recog~
nized that "petitioners might seek to develop the record on these
issues further in a federal habeas corpus proceeding.” Id. at
1003. Mr. Ford did attempt to develop a fuller record in federal
habeas corpus. The district court, however, denied discovery,
denied Mr. Ford's proffer of available evidence concerning the
Florida Supreme Court's practice, SR. 8-9, and adopted the
Florida court's conclusions of law in Brown. App. 110a-11la. On
appeal, the Eleventh Circuit disavowed the Florida court's legal
conclusions and "“assume(d) without deciding that the use by the
appellate court of the type of nonrecord material alleged here
would be unconstitutional.” Id. at 7a (plurality opinion).
Nevertheless, it found no violation of Mr. Ford's constitutional
rights because it read the Florida Supreme Court opinion in
Brown to contain a factual statement that the Florida court had
not “used” the nonrecord material. Id. at 7a-8a (plurality
opinion); id. at 29a-30a (Tjoflat, J., concurring). Five of the
eleven judges participating in the en banc decision dissented.
Two judges (Godbold and Clark) found that the Florida Supreme
Court had not clearly stated whether it relied on the nonrecord
material, id. at 17a-i8a; two judges (Kravitch and Johnson)
found in separate opinions that the Florida Supreme Court
admitted (or failed to deny) an unconstitutional use of the
nonrecord material, id. at 42a-50a, 69a-71a; and the fifth judge
(Anderson) joined all of the others' dissenting opinions. Id.
at 73a.
(2) Petitioner's Challenge to the Florida Rule Permitting
the Affirmance of a Death Sentence Based in Substan-
tial Part Upon Legally Improper Aggravating Circum-
Stances When There Are Only Nonstatutory Mitigating
Circumstances.
At the sentencing phase of Mr. Ford's trial, the court
twice instructed the jury to consider all eight of the aggravat-
ing circumstances specified in the Florida death penalty statute.
T. 1347-1348, 1354-1356. Thereafter, the jury returned a
general advisory verdict recommending the death penalty. T.
1358. The trial judge imposed the death sentence and filed
supporting findings in which he found all eight of the statutory
aggravating circumstances. App. 88a-90a. On direct appeal, the
Florida Supreme Court set aside three of the eight aggravating
circumstances: Two had no evidentiary basis, and the third
involved an impermissible double-counting of suman
Nonetheless, the court upheld the imposition of the death
sentence, because "there being no mitigating factors present
death is presumed to be the appropriate sentence. Elledge v.
State, 346 So.2d 998 (Fla.1977); State v. Dixon, [283 So.2d 1
(Fla. 1973)]." Id. at 91a. With respect to its conclusion that
there were "no mitigating factors present,” the court explained:
"we have not overlooked the testimony favorable to appellant's
character and prior behavior presented by the defense in mitiga-
9/ Two circumstances -- that the defendant was under sentence
of imprisonment when the homicide was committed, Fla.Stat.
§ 921.141 (5)(a) (West Supp. 1982), and that the defendant had
been previously convicted of another capital felony or of a
felony involving the use or threat of violence, id., § 921.141
(5)(b) -- were set aside for lack of evidence. App. 89a-90a.
Two other circumstances -- that the homicide was committed
while defendant was engaged in the attempted commission of a
robbery, id., § 921.141 (5)(d), and that the homicide was
committed for pecuniary gain, Id., § 921.141 (5)(£) -=- were
reduced to a finding of a single aggravating circumstance since
both were based upon the same aspect of the crime. App.
90a-9la.
tion during the sentencing trial.... [But o]Jur duty under
section 921.141, Florida Statutes (1975), ... is to apply fairly
the aggravating and mitigating circumstances duly enacted by the
representatives of our citizenry to the facts" of the case under
review. Id. (emphasis added).
In federal district court, Mr. Ford claimed that the
eighth amendment forbade the affirmance of a death sentence
when nearly half of the aggravating circumstances Supporting it
were held improper and the rule relied on to affirm this result
denied consideration of nonstatutory mitigating circumstances.
The district court rerected this claim with the terse statement
that Proffitt v. Florida, 428 U.S. 242, 255 (1976), required
that the Florida statutory provisions "be considered as they
have been construed by the Supreme Court of Florida." App.
109a-110a.
The en banc Eleventh Circuit affirmed the district court
by a seven-to-four majority. The majority accepted without
discussion the Florida court's determination that there
were "no mitigating factors present.” App. 12a and 19a,
It did not, therefore, address the constitutionality of an
appellate rule (*the Elledge rule") that disregards evidence
of nonstatutory mitigating circumstances. Rather, it upheld
the application of the Elledge rule in Ford on three grounds:
(1) that the sentencer had not considered improper evidence; it
merely gave weight to improper considerations based upon
otherwise admissible evidence, id. at 11a; (2) that because
there were no mitigating circumstances, there was no risk that
the sentencer's discretion had been misguided because the
Florida Supreme "[C]ourt logically presumed the weighing
process would have reached the same outcome even had the
sentencing court not added to the scales those aggravating
circumstances found impermissible...," id. at 12a; and (3) that
this presumption “seem[ed]) very like the application of a
harmless error rule." Id.
In dissent, three judges questioned the Florida court's
conclusion that there were no mitigating circumstances.
Id. at 36a n.32 and 64a-65a n.44. But they found no need to
resolve this issue because of their views either that Zant v.
Stephens, 456 U.S. 410 (1982), required certification of a
question to the Florida Supreme Court, App. 3la-4la, (Tjoflat,
joined by Anderson, JJ., dissenting), or that the decisions on
the merits in Zant and Barclay v. Florida, No. 81-6908,
cert. granted, U.S. , 103 S.Ct. 340 (1982), would
so clearly be controlling that decision ought to be deferred.
App. 61a-68a (Kravitch, J., dissenting). A fourth dissenter,
Judge Johnson, concluded that the Florida Supreme Court's
disregard of nonstatutory mitigating circumstances in applying
the Elledge rule was a violation of Lockett v. Ohio, 438 U.S.
586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982). App.
72a-73a.
(3) Petitioner's Challenge to Florida's Failure
to Require That the Sentencer Be Convinced
Beyond a Reasonable Doubt That Aggravating
Circumstances Outweigh Mitigating Circumstances.
The Florida statute requires that both the jury's recommen-
dation and the judge's sentence of death must be premised on
"findings ... as to the facts" that “sufficient aggravating
circumstances exist as enumerated in [the statute], and...
{t]hat there are insufficient mitigating circumstances to out-
weigh the aggravating circumstances." Pla.Stat. §§ 921.141(2)
and (3) (West Supp. 1982). In Mr. Ford's penalty trial, the
- 12 «
jurors were instructed that they must make these findings
before they could recommend death. However, they were not
told that they must make these findings beyond a reasonable
doubt. TT. 1345-1346. Similarly, although the trial judge made
these findings before he imposed Mr. Ford's death sentence, he
did not indicate that he made them beyond a reasonable doubt.
App. 89a-90a n.1.
In the district court, Mr. Ford claimed that the eighth
and fourteenth amendments require that these findings be made
beyond a reasonable doubt. The district court held merely that
"Proffitt v. Florida ... is sufficient itself to reject the
claim." App. 109a.
By a nine-to-two vote, the en banc Eleventh Circuit affirmed
the district court's conclusion on two grounds. First, the major=-
ity reasoned that the determinations made at the penalty trial
are not of "facts or elements of the crime” which, under In re
Winship, 397 U.S. 358 (1970), require proof beyond a reasonable
doubt. App. 15a. Rather, they involve the weighing of facts
against each other, a process "not susceptible to proof by either
party.” Id. Second, because these sentencing determinations are
central to Florida's capital punishment scheme which the Court
declared constitutional on its face in Proffitt, the majority
concluded that adherence to the Florida scheme provided Mr.
Ford a constitutionally proper sentencing proceeding. Id.
Dissenting, Judges Anderson and Clark recognized that the
determinations made by the jury and judge in a capital sentencing
proceeding are not simple "findings of fact" since they involve
the weighing of subsidiary facts and the application of a measure
of subjective judgment. Id. at 76a and n.6. But they found
that difference immaterial, relying on Addington v. Texas, 441
U.S. 418 (1979), and Santosky v. Kramer, 455 U.S. 745 (1982).
@ 13 -
To them, the relevant question was the requisite “degree of
confidence in the accuracy of the finding that the death
penalty is warranted." App. 76a. This Court's insistence that
especially reliable “procedures ... govern the sentencing
process in a death case," id. at 74a, compelled the dissenters
to find that a standard reflecting “subjective certainty” --
i.e., the reasonable doubt standard -- was necessary to guide
the critical judgments underlying a decision to impose death.
Id. at 78a-80a.
(4) Petitioner's Challenge to Instructions That
Might Well Lead a Reasonable Juror to Conclude
That the Jury was Forbidden to Consider Relevant
Mitigating Circumstances.
The instructions to the jury at the penalty phase were that:
As to aggravating circumstances, in considering
whether sufficient aggravating circumstances exist
to justify a sentence of death, you shall consider only
the following [whereupon the court read the list of
aggravating circumstances specified in the death
penalty statute) ....
As to mitigating circumstances, in considering
whether sufficient mitigating circumstances exist
which outweigh any aggravating circumstances to justify
a sentence of life imprisonment rather than a sentence
of death, you shall consider the following [whereupon
the court read the list of mitigating circumstances
specified in the statute] ....
T. 1347-1349 (emphasis added). During the jury's deliberations,
the foreman requested reinstruction concerning the aggravating
and mitigating circumstances that the jury could consider. In
the exchange that followed: (1) the judge told the foreman that
the "list" of factors in the charge constituted “the mitigating
and aggravating circumstances” the jurors were to consider; (2)
the foreman told the other jurors that the “list” of factors in
the charge constituted “what they [the judge and counsel)
consider the aggravating circumstances; what they consider the
mitigating circumstances;" and (3) the judge then reread to
- 14 -
the jury the entire portion of the instructions specifying the
aggravating and mitigating circumstances to be considered. fT.
1351-1356 (emphasis added).
In the district court, Mr. Ford claimed that these instruc
tions were calculated to lead a reasonable juror to believe
that he or she could consider only the statutory mitigating
circumstances enumerated in the instructions. Since che
bulk of his mitigating evidence did not relate to the statutory
circumstances, these instructions precluded its consideration.
The district court found that, because there was no objec
tion, "Wainwright v. Sykes [, 433 U.S. 72 (1977)] controls.” App.
107a. But it went on to determine the merits. It held that
any error in the instructions was harmless on two grounds. d.
at 107a-109a. First, unlike the Mississippi death penalty
procedure under which’ a similar jury charge was held unconsti-
10/
tutional in Washington v. Watkins, the Florida procedure
“has sentencing of death by a judge and the jury's verdict is
only advisory." App. 108a. Second, the district court believed
that the trial judge would reimpose the death sentence even if
Mr. Ford's case were remanded for a new penalty trial. Id. at
108a-109a.
The en banc Eleventh Circuit affirmed. On the merits, a
six-judge majority believed it "a rational conclusion ... that
the jury did not perceive a restriction on the use of any
mitigating evidence.” App. 10a. Four reasons were given for
this conclusion. First, the majority pointed to the use of the
10/ Washington v. Watkins, 655 F.2d 1346, 1367-1378 (Sth Cir.),
reh. denied with opinion, 662 F.2d 1116 (5th Cir. 1981), cert.
denied, 456 U.S. 949 (1982).
word “only® in tne instruction to consider “only the following”
aggravating circumstances, in contrast to its omission in the
instruction toc consider “the following” mitigating circumstances.
It noted that the same omission in the language of the statute
had led this Court in Proffitt, 428 U.S. at 250 n.8, to assume
that the statute aid not limit the consideration of mitigating
circumstances to those listed in the statute. App. 94. Second,
the majority distinguished tne instructions in Ford from
those condemned in Washington Vv. Watkins on the ground that
the Ford instructions had not included the limiting reference
in the Washington instructions to the two "preceding elements of
mitigation.” App- Qa-10a. Third, since "petitioner was not
limited in the introduction of evidence which might be con
sidered mitigating and... the jury arguments encompassed all
evidence introduced in the case," id. at 10a, the majority
reasoned that “the jury was not in fact being limited to [sic]
what it could consider." Id. Finally, because the trial judge
seemed to understand his duty to consider all the mitigating
evidence proffered by Mr. Ford, the majority found "[i]t ees
reasonable to conclude that the state judge's perception of
what could be considered was conveyed to the jury." Id.
Alternatively, the majority held that Mr. Ford had not
demonstrated sufficient prejudice to excuse his failure to
raise this claim in the Florida courts. Id. (adopting the
reasoning in Chief Judge Godbold's opinion, id. at 19a). First
finding that petitioner had committed a procedural default
under Florida law -~ since he “neither objected to the instruc
tion at trial nor raised it on direct appeal,” id. at 9a -- the
majority then inguired under Wainwright V- Sykes whether
petitioner had shown sufficient cause and prejudice to relieve
- 14-
him of the default. App. 9a-!0a and 19a. It passed the issue
of “cause,” id. at 9a, and concluded that his demonstration of
*prejudice® was insufficient because, in its view, it was un-
likely that the jury's verdict would have been any different
if it had considered the nonstatutory mitigating evidence,
App. 10a.
Dissenting from the court's disposition of this claim, Judge
Kravitch would have held that Mr. Ford Lad sufficiently demon-
strated cause and prejudice and that, under the principles
articulated in Sandstrom v. Montana, 442 U.S. 510 (1979), the
the record showed a violation of the eighth amendment require-
ments of Lockett and Eddings. She noted that the Fifth Circuit
had so held in Washington v. Watkins, where the error was
indistinguishable. App. 50a-6la.
REASONS FOR GRANTING THE WRIT
I. THE FLORIDA SUPREME COURT'S SECRET, EX PARTE
SOLICITATION, RECEIPT, AND CONSIDERATION OF REPORTS
FROM STATE EXECUTIVE AGENCIES CONCERNING CAPITAL
LITIGANTS WHOSE APPEALS WERE THEN PENDING FOR
SENTENCING REVIEW PRESENT VITAL CONSTITUTIONAL
QUESTIONS WHICH SHOULD BE RESOLVED BY THIS COURT
May an appellate court secretly gather and consider extra-
record information concerning the appellants and issues before
it for review? The question arises from the Florida Supreme
Court persistent practice of soliciting from state agencies
extra-record information regarding death-sentenced appellants
in connection with their pending appeals, without notice to the
appellants or their lawyers and without the sanction of any
Statutory or procedural authority which might have given notice
of the practice. By a narrow six-to-five vote, the Eleventh
Circuit found this startling practice acceptable. It based
that determination on an untenable inference that the Florida
Supreme Court deliberately and regularly obtained ex parte
information of a vital nature but then failed to “use” it.
This conclusion is belied by even the truncated record that Mr.
Ford has been permitted to make. The regular resort to secret
evidence in affirming capital sentences demands correction on
the most basic of constitutional grounds.
The constitutional questions presented are not unfa-
Miliar to this Court. They were raised in a different set-
ting in a petition for certiorari following the Florida Supreme
Court's ruling in Brown v. Wainwright, 392 So.2d 1327 (Fla.
1981). This Court declined to exercise its jurisdiction at
that time. Brown v. Wainwright, 454 U.S. 1000 (1981). Whatever
considerations led the Court to deny certiorari in Brown,
the current posture of this case makes it the final opportunity
for any court to resolve these questions in a seemly and
intelligible manner before petitioner and numerous other
condemned Florida prisoners are put to death. These questions
call for review by this Court at this time for several reasons.
First, at t..e time of the Brown petition, it was still
possible that the constitutional grievances presented would be
corrected in federal habeas corpus proceedings. Now it is not
possible. The en banc ruling of the Eleventh Circuit was
expressly intended to preclude and will have the effect of
precluding any further consideration of these constitutional
issues in this or any other case.
Second, at the time of Brown, the factual record was
scanty because of the Florida court's denial of petitioners’
request for an evidentiary hearing and its decision solely
on the pleadings. Thus, under 28 U.S.C § 2254(d), there was a
chance that the record would be developed in federal habeas.
- 18 -
Now there is no chance. The Eleventh Circuit not only affirmed
the denial of the evidentiary hearing sought by Ford, but based
its rejection of his constitutional contentions on an interpre-
tation of the Florida court's Brown opinion which forecloses a
factual hearing in this or any other case.
Third, the Eleventh Ciruit's badly divided ruling leaver
the question of the propriety of the Florida Supreme Court's
secret practice unresolved and virtually unaddressed. The
majority view was expressed in two opinions. The plurality
opinion by Judge Roney assumed that resort by an appellate
court to ex parte materials in reviewing capital sentences would
violate Gardner. However, it read the Brown opinion as assert-
ing that the Florida court did not “use” tste materials it had
solicited. Judge Tjoflat, the decisive sixth vote, concurred
specially. He determined that the Florida court had read the
materials but that it did not rely on them. App. 29-30a. He
then note? that he might have voted differently if Mr. Ford had
separately alleged the appearance of impropriety in the Florida
Supreme Court's practice, thinking -- inom” “= that
Mr. Ford had not done so. App. 30a. The five dissenting judges
\1/ The appearance of impropriety was raised throughout the
litigation. Mr. Ford has consistently asserted that the very
solicitation and receipt of the non-record information by the
Florida cdéurt violated his due process and eighth amendment
rights. Application for Extraordinary Relief and Petition for
Writ of Habeas Corpus at 3-5, 8-16 & 13-14; Petition for Writ of
Habeas Corpus at 20; Brief for Petitioner-Appellant at 57,
62-64, 68 & 70-73; Supplemental Brief for Petitioner-Appellant
on Rehearing En Banc at 7, 14-15, & 18. He has consistently
cited Gardner v. Florida, 430 U.S. 349 (1977), which explicitly
states that “any decision to impose the death sentence [must]
be, and appear to be, based on reason rather than caprice or
emotion, 1d. at 358 (plurality opinion) (emphasis added).
Gardner did not separate justice and the appearance of justice
as distinct and independent issues, but viewed them as insepar-
ably yoked. By citing Gardner as applied to facts which
inescapably bring both of its connected theories into play,
Mr. Ford has properly raised both issues.
- 19 —
took the view either that the Florida court had not been clear
whether it had relied on the materials or that the Florida court
had admitted using them. App. 17a-18a, 42a-50a, & 69a~-7la.
Thus, the sharp, five-one-five division of the en banc court
merely clouds the fundamental question.
Fourth, the only thing the en bane court did seem to agree
on was its unwillingness to accept the legal basis of the
Florida Supreme Court's decision in Brown. The Florida court
had upheld its challenged practice on the theory that Gardner
is inapplicable to appellate review. App. 96a-97a. The
plurality opinion below, however, “assume[d) without deciding
that the use by the appellate court of the type of nonrecord
material alleged here would be unconstitutional." App. 7a.
Thus, the prevailing state and federal court opinions upholding
the Florida practice stand on radically divergent legal theories.
This is unseemly, to say the least, if the appearance and
reality of constitutional justice in capital cases are to be
preserved.
Fifth, the en banc majority decision cannot withstand anal-
ysis. Its major premise is that the Florida court did not "use"
the ex parte materials. It arrives at this premise by reading
the Brown opinion as holding that the Florida court did not
"use" the ieetstee and by treating this “holding” as a
finding of fact. But the majority's attempt to extract such a
factual finding from the Brown opinion's ambiguous language and
faulty legal reasoning is conclusively rebutted by the procedural
posture of Brown, “he actual holding in Brown, and the record.
12/ In part, the majority's conclusion rested on the premise
that state law (as announced in Brown) prohibited the use of
such materials and that there is a presumption of regularity
in state court proceedings. The systematic, secret, ex parte
solicitation and consideration of such materials, however,
should be enough to shake that presumption.
= 20 «
1) The procedural posture: The Brown opinion could not
have made any factual findings because the procedural posture
of Brown permitted only conclusions of law. Brown was filed in
the Florida Supreme Court as an original action; there were no
findings of lower courts there on review. The Brown petitioners
filed a motion for factfinding proceedings before a special
master in the event that any of their factual allegations were
controverted. This motion was never reached because the
factual allegations were not controverted. Brown was decided
on the state's motion to dismiss. In that posture, all of the
petitioners' factual allegations were assumed to be true; the
decision could only be rendered as a matter of law, Thus,
no factual issues could conceivably have been resolved. Since
the Florida Supreme Court bypassed petitioner's request for a
hearing, conceded every factual allegation, and resolved the
matter solely as a question of law, the majority's attempt to
read into Brown a finding of fact with a presumption of
13/
correctness is plainly in error.
2) The Brown holding: The Brown opinion itself did not
make factual findings but only discussed legal issues. The
Florida court accepted petitioners' factual allegations of
solicitation, receipt, and consideration of the ex parte mate~
rials and ruled as a matter of law that they presented no con-
stitutional violation. It distinguished between the functions
of sentence “imposition” and “review,” App. 96a, 97a, & 98a,
and held that Gardner applies solely to sentence imposition.
Since "non-record information we may have seen ... plays no role
in capital sentence 'review'...," App. 97a-98a, "(a)s we
13/ See Sumner v. Mata, 449 U.S. 539 (1981), and 28 U.S.C.
3254(d). But see Edwards v. Arizona, 451 U.S. 477, 482-84
(1981) (different treatment for state court finding premised
on misapplication of governing constitutional law).
view the case, ... appellate review can never be compromised,
in the constitutional sense reee DY the receipt of any quantity
of non-record information." App. 96a mn. 16. It then concluded
that: “Even if petitioners’ most serious charges were accepted
as true, as a matter of law our view of the non-record informa-
tion petitioners have identified is totally irrelevant ... to
our appellate function in capital cases...." Id. (emphasis
14/
added). There is Simply no basis in the language or
15/
reasoning of the Plorida court's Opinion for the
factual “finding” attributed to it by the majority.
14/ In dissent, Chief Judge Godbold noted:
I read the Brown opinion differently [from the
majority). It seems to me that the Florida
Supreme Court, adopting the Subjunctive mode
in its opinion, has not directly stated that
it did not actually rely on non-record infor-
mation.... The disparate views that the judges
of this court have expressed about the import
of Brown convincingly demonstrate the intract-
able ambiguity of the Florida Supreme Court's
opinion,
App. 18a,
15/ In dissent, Judge Johnson Clearly explained that the
Florida Supreme Court's Opinion had nothing to do with the
factual question of whether that court had "used" the
information that it secretly acquired:
It is important to note that the Florida
Supreme Court has never denied considering non-
record material of the kind alleged in this case,
he court merely attempted to draw a
Instead, t y p
legal distinction between the statutory review”
process and constitutiona y require super-
Visory standards, The majority's acceptance
of chts distinction, in my Opinion, is nothing
more than the adoption of a legal conclusion
expressed by the Florida Supreme Court. Even
where the court in Brown stated that "non-
record information we may have seen, even though
never presented to or considered by the judge,
the jury, or counsel plays no role in capital
sentence 'review,'" 392 $0.24 at 1332-33,
the court was only articulating its Statutoril
mpose uty. It was not stating its actua
Practice. For this reason I find it unnecessary
to discuss the “presumption of regularity"
relied on in part by the majority.
App. 7ia. (emphasis added),
- 22 «
3) The record: The Florida Supreme Court's own opinions
and practices belie the majority's premise that the Florida
court did not “use” the ex parte materials. Ir reaching its
legal conclusion in Brown, the Florida court accepted the alle-
gations regarding the “non-record information we may have seen,”
App. 97a, its “reading of non-record documents," App. 98a, and
"[t)he 'tainted' information we are charged with reviewing.”
App. 98a n.17. In a subsequent case, it made clear that Brown
"neld that the allegations of receipt and consideration of such
information by appellate judges, even if true, did not estab-
lish error...." McCrae v. Wainwright, 422 So.2d 824, 827 (Fla.
1982) (emphasis added). Thus, the Florida court has gone out
of its way to enumerate every conceivable constituent of its
questionable practice -- receiving, seeing, reading, reviewing,
and considering ex parte materials -- and to uphold the practice
as constitutionally permissible,
Moreover, the practice itself demonstrates the hollowness
of the en banc majority's semantic distinction between "use,"
on one hand, and "solicit," "receive," "see," “read,” “review,”
and “consider,” on the other.
If the court does not use the disputed non-record
information in performing its appellate function, why
has it systemically sought the information?
Brown v. Wainwright, 454 U.S. 1000, 1001 (1981) (Marshall,
J., dissenting from the denial of certiorari). If the Florida
court "solicited the material with the thought it should, would
Or might be used” and then decided “that it should not be so
used...," as the en banc majority suggested, App. 8a, then why
did it continue to solicit such materials over a period of
years? The Florida court's attempted response -=- which even
the en banc majority viewed as less than “candid,” App. 8a --
- 23 -
only compounds the issue. It said that: "The ‘tainted’ infor-
mation we are charged with reviewing was ... in every instance
obtained to deal with newly articulated procedural standards
ooo,” Specifically identifying Lockett. App. 98a Oat Pond
But if that is true, the Florida court must have “used” the
materials. And if in fact they were used for capital appellants'
benefit, why conceal it? If the materials were never used, or
only used to advantage capital appellants, why order the
materials purged from the court's files when the practice was
discovered?
The six-to-five majority conclusion that the Florida court
did not “use” the materials is also belied by actual experience.
An oral argument before the Florida Supreme Court makes the
point. Seventeen-year-old Paul Magill had been sentenced to
death. At oral argument, his counsel urged that a life sentence
should have been imposed. She relied, in part, upon psychiatric
information presented to the trial court. But she was then ques-~
tioned by the Chief Justice of the Florida Supreme Court about
an inconsistent, extra-record psychological evaluation that the
Florida court had secretly obtained from the prison. What
clearer “use” could there be?
16/ In fact, the practice began in 1975, three years before
Lockett. See App. 9a.
17/ The appendix below contains a motion by Magill's appellate
counsel. The motion reveals that during oral argument then-Chief
Justice Overton referred to a psychological screening report
prepared after Mr. Magill's sentencing and after his incarcera-~
tion on death row. The report was discussed by the Chief
Justice in relation to the presence or absence of mitigating
circumstances in the case, an issue that bore directly on whether
the death sentence imposed upon Mr. Magill should have been
reversed or affirmed. The death sentence was in fact vacated
by the Florida Supreme Court because of the trial court's failure
to articulate the mitigating circumstances it may have considered.
Magill v. State, 386 So.2d 1188 (Fla. 1980). The reimposition
of the death sentence was later affirmed. Magill v. State,
428 So.2d 649 (Fla. 1983).
o 24
Sixth, the Florida court's own resolution of these questions
is no more satisfactory. It was based on the purported distinc-
tion between sentence “imposition” and “review.” In the Florida
court's view, “(njeither of [the court's] sentence review func-
tions ... involves weighing or reevaluating the evidence adduced
to establish aggravating and mitigating circumstances." App.
96a. AS a result, “nonrecord information [the Justices) may
have seen, even though never presented to or considered by tne
[trial] judge, the jury, or counsel, plays no role in capital
sentence ‘review.'” App. 97a-98a.
This analysis fails for several reasons. To Say that non-
record information has no proper place in the Florida court's
appellate review is not to say that such information cannot
affect that court's performance of its function. Manifestly, it
can. The Florida Supreme Court undertakes a proportionality
review: to “review [each death] case in light of the other
decisions and determine whether or not the punishment is too
great.” Proffitt, 428 U.S. at 251 (quoting State v. Dixon, 283
So.2d 1, 10 (Fla. 1973)). Secret evidence that tends to support,
refute, or clarify the nature of the aggravating and mitigating
circumstances in the cases being compared-~-such as prison clas-
sification records showing violence or in-prison psychiatric
reports purporting to document lack of remorse, future dangerous-
ness, or mitigating psychiatric disorder -- would necessarily
affect such a proportionality review. Indeed, the Florida
justices would have to be superhuman to ignore such evidence,
which they specifically solicited in connection with that
review, onc2? they had read and considered it.
Moreover, the Florida Supreme Court's review function is
not nearly as circumscribed as the Brown opinion suggested. It
had previously described the Florida capital sentencing process
as “trifurcated." See, e.g., Dobbert v. State, 375 So.2d 1069,
1071 (Fla. 1979). Under its prior opinions, its review included
“a separate responsibility to determine independently whether
the imposition of the penalty is warranted.” Songer v. State,
322 So.2d 481, 484 (Fla. 1975) (emphasis added), vacated on
other grounds, 430 U.S. 952 (1977). This duty to make an inde-
pendent determination requires the Florida court to “evaluate
anew the aggravating and mitigating circumstances ...." Harvard
v. State, 375 So.2d 833, 834 (Fla. 1977), cent. denied, 441 U.S.
956 (1979). Accord Peek v. State, 395 So.2d 492, 500 (Fla.),
cert. denied, 451 U.S. 964 (1981); Vasil v. State, 374 So.2d
465, 471 (Fla. 1979); McCaskill v. State, 344 So.2d 1276, 1280
(Fla. 1977); Adams v. State, 341 So.2d 765 (Fla. 1977);
Halliwell v. State, 323 So.2d 557, 561 (Fla. 1975). This
Court relied on that duty in upholding the Florida statute in
Proffitt. 425 U.S. at 253. The secret consideration of
questionable but untested ex parte materials such as in-prison
psychiatric reports clearly can affect a reviewing court's
determinations of the appropriateness of a capital sentence,
whether that determination involves a reweighing of the aggra-
vating and mitigating circumstances or merely an evaluation of
the acceptability of the oriyinal sentencer's weighing.
Seventh, the issues presented here beg the reasoned exami-
nation that only the granting of certiorari now can provide.
The abstruse analysis of the en banc majo: ity did not dispose of
some borderline or frivolous constitutional claim. It sanctioned
a practice fundamentally at war with due process. The gross
unfairness of a procedure governing life and death where non-
record information is secretly acquired and considered by an
appellate court calls into question the traditional foundations
of our system.
a 2 =
Whether or not capital defendants are entitled to "a
greater degree of reliability” in the process that sends them to
their death, Lockett, 438 U.S. at 604; see, e.g., Gardner, 430
U.S. at 364, they are entitled to the protections of due process,
to the effective assistance of counsel, to confront the evidence
against them, and to be free of cruel and unusual punishment and
compulsory self-incrimination. No less than other litigants,
they are entitled to an orderly and regular course of judicial
proceedings in which evidence is received and tested by the
traditional adversary methods of the Anglo-American system of
justice. But the Florida Supreme Court practice challenged here
is more evocative of the Star chamber” than the reasoned,
reliable review required by this Court*s precedents.
When this practice caine to light, despite the Florida
court's efforts to keep it secret and to purge its files, peti-
tioner and other similarly situated death row prisoners duly
pursued their remedies in both the state and federal courts. In
one place, they were told that no findings of fact need be made
because the practice was constitutionally acceptable. In the
other, they were told that the practice might well be unconsti-
tutional but that findings of fact never made established that
it had not really occurred. Nothing could be more unseemly than
to have an issue of such magnitude, affecting so many lives and
raising such fundamental questions about the operation of the
18/ The Star Chamber, which operated during the reign of the
Tudors, was empowered both to proceed solely on rumor and to
compel self-incrimination. It was abolished by Act of
Parliament in 1641 because of popular revulsion at its prac-
tices. The challenged Florida court practice included
Clandestine consideration of untested psychological reports --
some made by corrections personnel, App. 95a -- based on
in-prison evaluations which the death sentenced prisoners had
little ability to avoid and which they were not warned would be
used against them in their pending capital appeals. See Estelle
v. Smith, 451 U.S. 454 (1981).
judicial process, “resolved” with finality by so contradictory
a course of proceedings. This Court's judgment on the issue
can alone set the matter right.
Il. THE COURT SHOULD GRANT THE WRIT TO DE-
TERMINE WHETHER THE EIGHTH AMENDMENT
PERMITS THE EXECUTION OF A DEATH
SENTENCE BASED IN PART ON IMPROPER
AGGRAVATING CIRCUMSTANCES WHEN THE
APPELLATE RULE CONDONING THIS RESULT
EXPRESSLY DISREGARDS EVIDENCE OF
NONSTATUTORY MITIGATING CIRCUMSTANCES
The issue underlying the question presented here is similar
to those in botn Barclay v. Florida, No. 81-6908, and Zant v.
Stephens, No. 81-89: whether a death sentence that rests, in
part, upon improper aggravating circumstances may nonetheless
be affirmed on review and carried out. The present case,
however, adds a dimension to Barclay and Zant that makes it
particularly appropriate for consideration by this Court.
Here, the state law premise upon which the Florida Supreme
Court affirmed Mr. Ford's death sentence is clearly articulated:
-
the two-pronged rule of Elledge v. State, 346 So.2d 998 (Fla.
1977). The Elledge rule provides that a sentence premised in
part on improper aggravating circumstances will be vacated if
there are any statutory mitigating circumstances present. This
result is dictated by the necessity to “guard against any
unauthorized aggravating factor going into the equation which
might tip the scales of the weighing process in favor of death.”
Id., 346 So.2d at 1003. But under the second prong of the
Elledge rule, the sentence must be affirmed if there are no
statutory mitigating circumstances: '
»« 26 =
It appears that the United States Supreme
Court does not fault a death sentence
predicated in part upon nonstatutory
aggravating factors where there are no
mitigating circumstances. The absence
of mitigating circumstances becomes
important, because, so long as there are
some statutory aggravating circumstances,
there is no danger that nonstatutory
circumstances have served to overcome the
mitigating circumstances in the weighing
process which is dictated by our statute.
Section 921.141(2)(b) and (3)(a), Florida
Statutes.
Id. at 1002-1003 (emphasis deleted). The application of this
prong of the Elledge rule to Mr. Ford's case was expressly
grounded on the absence of the "mitigating circumstances duly
enacted by the representatives of our citizenry.” App. 91a.
The Florida Supreme Court acknowledged that “testimony favorable
to appellant's character and prior behavior [had been] presented
by the defense in mitigation during the sentencing trial." Id.
Such nonstatutory mitigating evidence simply does not count for
Elledge purposes.
The very statement of the Elledge rule reveals its
constitutional infirmity. If there are nonstatutory mitigat-
ing circumstances present, then the consideration of improper
aggravating circumstances taints the weighing process just as
surely as when statutory mitigating circumstances are in the
balance -- upsetting the “informed, focused, guided and objec-
tive inguiry” required by innumerable precedents. See, e.g.,
Proffitt, 428 U.S. at 259; Godfrey v. Georgia, 446 U.S. 420,
427-28 (1980). And insofar as the Elledge rule prevents con-
sideration of nonstatutory mitigating circumstances at the
appellate level, it is a plain violation of Lockett and Eddings:
The disregard of nonstatutory mitigating circumstances as a matter
of law by an appellate court in order to sustain an otherwise
improperly imposed death sentence differs not at all from the
- 29 -
disregard of such circumstances in the first instance by the
sentencer in order to impose the death sentence. Eddings, 455
U.S. at 19618
The majority opinion below does not address the question
actually presented by this case. It inexplicably accepts with-
out discussion the Florida court's conclusion that there were no
mitigating circumstances present. App. 12a (plurality opinion);
App. 19a -20a (Godbold, C.J., and Clark, J., concurring). In
dissent, only Judge Johnson clearly recognizes that the Florida
Supreme Court's disregard of nonstatutory mitigating circum-
stances violates Lockett and Eddings. App. 139°"
Judge Roney's plurality opinion on the Elledge issue is
entirely unsatisfactory for another reason. It attempts to
distinguish situations in which the consideration of aggravating
circumstances is improper because they are unconstitutional or
21/
nonstatutory, as in Zant or Henry v. Wainwright, from
situations in which the consideration is improper because of a
19/ A third constitutional infirmity of the Elledge rule need
not be reached in this case. Even if there were no mitigating
circumstances at all, affirmance under the Elledge rule would
be constitutionally impermissible because the appellate court
could not determine whether the sentencer would have found the
proper aggravating circumstances sufficient to justify a
death sentence. Put another way, a general sentence based in
part upon proper considerations and in part upon improper ones
would have to be vacated under the principles of Stromberg v.
California, 283 U.S. 359 (1931), and its progeny. This is the
question presented in Zant; an affirmance in Zant would,
therefore, require reversal here.
20/ The other three judges who dissented with respect to the
court's resolution of this issue questioned the Florida Supreme
Court's conclusion that there were no mitigating circumstances.
They found no need to press the subject, however, because of
their view that the matter should have been resolved under
the third question raised by the application of the Elledge
rule, discussed supra n.19. App. 36a-37a, 65a, and 73a-/4a.
21/ 661 F.2d 56 (5th Cir. 1981) (Unit B), vacated and remanded,
U.S. , 102 S.Ct. 2922 (1982), judgment reinstated, 686
F.od 311 (5th Cir. 1982) (Unit B), cert. pending (No. -840).
- 30 -
lack of evidence to establish the circumstances, as in Ford.
App. lla. That distinction must fail. The constitutional
infirmity of predicating a death sentence in part upon improper
aggravating circumstances is that sentencing discretion is not
sufficiently —«," when it is channeled in part by
considerations that should have played no role. As this Court
framed the question presented in Zant, the focus must be on the
effect that improper consideration of aggravating circumstances
has upon the channeling process, ratner than on why considera-
tion was improper. 455 U.S. at 416017,2—
The plurality's alternative ground -- adopting Chief Judge
Godbold's characterization of tne Elledge rule as a harmless
error rule, App. 12a & 19a-20a -- is equally flawed,
First, it fundamentally misunderstands the Elledge rule as
employed by the Florida Supreme Court. The Elledge rule does
not involve a particularized harmless error analysis to deter-
mine on the facts of each case whether an improperly considered
aggravating circumstance distorted the weighing process.
Rather, it is a categorical rule based on a legal proposition.
Under Elledge, the improper consideration of any aggravating
Circumstances after the consideration of one proper one must be
harmless in the absence of statutory mitigating circumstances.
22/ “[I)f a State wishes to authorize capital punishment...
i]t must channel the sentencer's discretion by ‘clear and
objective standards' that provide ‘specific and detailed
guidance,' and that 'make rationally reviewable the process for
imposing a sentence of death.'" Godfrey v. Georgia, 446 U.S.
420, 428 (1980) (footnotes omitted).
23/ This analysis fails for another reason: Petitioner
did allege consideration of constitutionally improper aggra-
vating circumstances. In his petition for a writ of habeas
corpus in the district court and on appeal to the Eleventh
Circuit, Mr. Ford claimed that three of the five aggravating
circumstances which the Florida Supreme Court determined to
have been properly considered should have been set aside as
well, because the application of these circumstances to the
facts of Mr. Ford's case violated the principle of Godfrey
v. Georgia, 446 U.S. 420 (1980).
= 31 -
"[I)n the weighing process which is dictated by our statute,”
Elledge, 346 So.2d at 1003, the absence of statutory mitigating
circumstances leaves nothing to balance against even a single
proper aggravating circumstance. Thus, to call this a harmless
error rule does not avoid the fact that the legal premise of
tne Elledge rule violates Lockett.
Second, even if Elledge were a particularized fact-based
harmless error rule, its application to this case could not be
squared with Chapman v. California, 366 U.S. 18 (1967). Where
there are substantial nonstatutory mitigating circumstances --
as the Florida court recognized here, App. 9!a -- the improper
consideration of three out of eight aggravating circumstances
can hardly be considered harmless beyond a reasonable doubt.
Accordingly, certiorari should be granted to determine
the constitutional propriety of the application of the Elledge
rule to Mr. Ford's case.
III, THE COURT SHOULD GRANT CERTIORARI TO DETERMINE
WHETHER PERMITTING A JURY AND JUDGE TO IMPOSE
THE DEATH SENTENCE WITHOUT ANY GUIDANCE CON-
CERNING THE LEVEL OF CERTAINTY THEY MUST HAVE
IN THE CORRECTNESS OF THE JUDGMENT THAT DEATH
IS APPROPRIATE SATISFIES THE STANDARDS OF
RELIABILITY CONSTITUTIONALLY REQUIRED IN
CAPITAL SENTENCING
———_<s ee ee ee eee Oe eee
It is well settled that the death penalty can be constitu-
tionally imposed only pursuant to procedures that assure “relia-
bility in the determination that death is the appropriate
punishment in a specific case.” Woodson v. North Carolina,
428 U.S. 280, 305 (1976). Until now, this concern for reliabil-
ity has focused on the need for guidance respecting the range
of factual matters considered by the sentencer. See Furman
v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S.
- 32 -
153, ‘95 (1976). In this regard, the Court has assumed that
adequate guidance is provided “wnen the sentencing authority's
discretion is guided and channeled by requiring examination of
specific factors that argue in favor of or against imposition
of the death penalty, thus eliminating total arbitrariness and
capriciousness in its imposition." Proffitt, 428 U.S. at
258.
However, now that the statutes that gave rise to these
holdings have been “clarified in concrete cases," Zant, 456
U.S. at 414, a previously unrecognized threat to reliability
in capital sentencing has emerged. This threat arises not from
the indeterminacy of the factual matters that the sentencer
may consider but from the indeterminacy of the “level of
subjective certainty,” Santosky, 455 U.S. at 769, that the
sentencer must reach about the correctness of the several
fact-based determinations leading to the ultimate conclusion
that death is the appropriate punishment in that particular
case. See Woodson, supra. Under Florida law, the sentencer
must find the existence of some aggravating circumstances and
it may or may not find mitigating circumstances. It then must
determine whether the aggravating circumstances are "sufficient"
to warrant the death penalty. If there are mitigating circum-
stances, it must determine whether they are outweighed by the
aggravating factors. Fla. Stat. § 921.141 (2) and (3). What
standard guides the sentencer's exercise of judgment concerning
each of these life-or-death determinations?
The area for uncertainty is large. When, for example, a
jury considers whether aggravating circumstances are sufficient
to warrant the death penalty and whether aggravating circum-
stances outweigh mitigating circumstances,
[ijt seems . . . entirely possible
that a jury might answer both of
those questions affirmatively “and
yet feel that a comparison of the
totality of tne aggravating factors
with the totality of the mitigating
factors leaves it in doubt as to the
proper penalty.
Smith v. North Carolina, __ U.S. at » 103 S.Ct. 474, 474-475
(1982) (Stevens, J., dissenting from denial of certiorari). In
such a case, the death penalty can nevertheless be imposed
pursuant to the Florida statute -- "in spite of factors which
may call tor a less severe penalty,” Lockett, 438 U.S. at 605
=- because the jury has no guidance as to the proper manner in
which to resolve such doubt. Thus, at the very core of the
process, the sentencer is left to its own inherently arbitrary
devices.
This risk of unreliability can be minimized only by
requiring capital sentencing determinations to be made under a
"reasonable doubt" standard. Standards of proof serve “to
allocate the risk of error between the litigants and to indicate
the relative importance attached to the ultimate decision."
Addington, 441 U.S. at 423. “Where one party has at stake an
interest of transcending value...this margin of error is
reduced as to him by the process of placing on the other party
the burden...of persuading the factfinder...beyond a reasonable
doubt.” Speiser v. Randall, 357 U.S. 513, 525-26 (1958). The
reasonable doubt standard “impresses on the trier of fact the
necessity of reaching a subjective state of certitude of the
facts in issue." In re Winship, 397 U.S. at 364. Given this
Court's persistent concern that the decision to impose the
death penalty be reliable in proportion to its importance, see,
e.g., Woodson, 428 U.S. at 305, the use of the reasonable doubt
= 34 «
standard as a test of “the degree of confidence our society
thinks [the sentencer] ... should have in the correctness” of his
or her capital sentencing determinations, Addington, 441 U.S.
at 423 (quoting Winship, 397 U.S. at 370 (Harlan, J., concur-
ring)), seems particularly appropriate.
The majority opinion below failed to recognize these
principles. It held that a reasonable doubt standard is not
required because the judgments made in capital sentencing are
not factual judgments but involve the weighing of facts. Yet,
regardless of how one characterizes the nature of the various
determinations made by the capital sentencer, they require "a
large measure of judgment." App. 76a n.6 (Anderson, and Clark,
JJ., dissenting). The applicability of some standard of
certainty to these determinations, as well as the propriety of
"reasonable doubt" as the standard, is, as Judge Anderson
succinctly observed, “near obvious.” App. 76a.
The majority also rejected this conclusion on the ground
that it was foreclosed by Proffitt's general endorsement of the
Florida statue. App. 15a. But the Court has recently made
clear that its approval of a state's capital sentencing statute
on its face does not foreclose later challenges to specific
procedures, since the Court's earlier “review of the statute
did not lead us to examine all of its nuances." Zant, 456 U.S.
at 414. Although critical to the administration of the death
penalty, the present issue has never been submitted to or
addressed by this Court. The Court should, therefore, grant
the writ to determine whether the eighth and fourteenth amend-
ments require that, before a determination is made to recommend
or impose the death penalty in a specific case, the sentencer
must reach a "subjective state of certitude," In re Winship,
that death is the appropriate punishment.
IV. THE COURT SHOULD GRANT CERTIORARI TO RESOLVE A
CONFLICT BETWEEN THE CIRCUITS REGARDING THE PROPER
CONSTITUTIONAL ANALYSIS OF CAPITAL SENTENCING
INSTRUCTIONS THAT A REASONABLE JUROR COULD UNDERSTAND
TO PRECLUDE CONSIDERATION OF NONSTATUTORY MITIGATING
FACTORS AND TO DETERMINE THE PROPER APPLICATION OF
PROCEDURAL DEFAULT PRINCIPLES TO THIS INSTRUCTIONAL
ERROR
The jury instructions at Mr. Ford's capital sentencing
trial might well have led a reasonable juror to believe that he
or she was permitted to consider only statutory mitigating
circumstances, in violation of the Lockett and Eddings require-
ment that the sentencer must consider all relevant mitigating
evidence. The result was to preclude consideration of virtually
all of the evidence proffered by Mr. Ford in mitigation, since
only a small portion related to statutory mitigating circum-
stances. The en banc court rejected this Lockett contention on
alternative grounds. It held on the merits that, despite the
alleged defects in the instructions, "a rational conclusion is
that the jury did not perceive a restriction on the use of any
mitigating circumstances." App. 10a. Alternatively, the court
held that a procedural default in the state courts barred federal
review because Mr. Ford failed to demonstrate "prejudice" as
required by Wainwright v. Sykes and United States v. Frady, 456
U.S. 152 (1982). Id.
Certiorari should be granted on this issue for several
reasons. The en banc court's holding on the merits conflicts
with this Court's precedents regarding analysis of jury instruc-
tions for constitutional defects, see Sandstrom v. Montana, 442
U.S. 510 (1979); Taylor v. Kentucky, 436 U.S. 478, 489-490
(1978), and with the resolution of precisely the same issue by
the United States Court of Appeals for the Fifth Circuit. See
Washington v. Watkins, 655 F.2d 1346, 1367-1378 (Sth Cir.),
reh. denied, 622 F.2d 1116 (5th Cir. 1981), cert. denied, 456
« 36 -
U.S. 949 (1982). The holding on procedural grounds applies the
"prejudice" prong of Sykes's “cause” and “prejudice” test in a
way that runs afoul of important eight amendment principles.
A. The en banc court's treatment of the jury instructions
conflicts with this Court's precedents regarding
analysis of the constitutionality of jury instructions
and with the resolution of the same issue by the
Pitth Circuit.
Under Sandstrom, proper analysis of the constitutionality
of jury instructions "requires careful attention to the words
actually spoken to the jury, ... for whether a defendant has
been accorded his constitutional rights depends upon the way in
which a reasonable juror could have interpreted the instruction.”
Id., 442 U.S. at 514. Judicial interpretation of the law upon
which an instruction is premised is not determinative; what
counts is “the interpretation which a jury could have given the
instruction." Id. at 516-517. In analyzing the jury instruc-
tions at issue in this case, the court below purported but
failed to follow these principles. In addition, its failure to
follow Sandstrom set it in conflict with the Fifth Circuit's
24/
decision in Washington v. Watkins.
The court below based its ruling on four reasons. First,
it stressed the fact that the trial court instructed the
jury to “consider the following" statutory mitigating factors
but had instructed them to “consider only the following"
aggravating factors, a direct paraphrase of the statute. It
noted this Court's observation in Proffitt, 428 U.S. at 250
24/ Even though the Eleventh Circuit adopted as “binding ...
precedent" the decisions of the United States Court of Appeals
for the Fifth Circuit "as that court existed on September 30,
1981, handed down by that court prior to the close of business
on that date,” Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981), and Washington was decided on September 14,
1981, the Eleventh Circuit nonetheless failed to follow Washing-
ton in this case. Presumedly, this was based on the Eleventh
Circuit's position that, as an en banc court, it is free to reject
prior Fifth Circuit panel opinions. See Sullivan v. Wainwright,
695 F.2d 1306, 1310 n.7 (11th Cir. 1983); Stein v. Reynolds
Securities, 667 F.2d 33, 34 (11th Cir. 1982). Thus, the
decision here is in conflict with the Fifth Circuit.
a 29S «
n.8, that the statute does not preclude consideration of non-
Statutory mitigating factors. Second, it distinguished the
Pifth Circuit's decision in Washington on the ground that there
the trial court had also directed the jury's attention to two
previously enumerated mitigating circumstances. In Ford,
however, no parallel instruction was given. Third, it noted
that since evidence of nonstatutory mitigating factors was
admitted, “the jury was not in fact being limited to [sic] what
it could consider.” App. 10a. Finally, it noted a passage in
the judge's sentencing opinion that found there were no nonstatu-
tory mitigating factors to outweigh those in aggravation. It
found it “reasonable to conclude" from the trial judge's correct
understanding of the law that his perception was conveyed to the
jury. Id.
Nothing about the court's analysis comports with Sandstrom.
Its ultimate holding was only that "a rational conclusion” is
that the jury did not think it was precluded from considering
evidence of nonstatutory mitigating circumstances; it did not
find that no reasonable juror could have interpreted the
instructions that way. But another and more rational conclu-
sion based on the language of the instruction and the subsequent
exchanges between the jury and the court is that the jury did
think itself precluded. Certainly, "a reasonable juror could
have interpreted the instruction..." that way. Sandstrom, 422
U.S. at 514 (emphasis added). "That reasonable men might
Gerive a meaning from the instructions given other than the
proper [and constitutional rule of law) is probable. In death
cases doubts such as those presented here should be resolved in
favor of the accused.” Andres v. United States, 333 U.S. 740,
752 (1948). Thus, there was constitutional error.
Moreover, when one considers the four reasons that led the
court below to its "rational conclusion," it becomes apparent
both that the court did not follow Sandstrom and that its
25/
conclusion is not rationally supported. With regard to the
first reason, the Fifth Circuit had previously considered the
identical jury charge and convincingly rejected the conclusion
later reached by the Eleventh Circuit:
In instructing the jury as to the two aggravating
factors that were at issue in the case, the trial court
quite properly made it clear to the jury that it could
consider only those two aggravating factors, and no
others: "Now consider only the following elements of
aggravation in determining whether the death penalty
should be imposed....” (Emphasis added.) Almost imme-
diately thereafter, in language that almost exactly
paralleled that in which the trial court circumscribed
the jury's consideration of aggravating factors, the
court told the jury to consider the two statutorily
prescribed mitigating factors hat were at issue in
the case: "Now consider the following elements of
mitigation in determining whether the death penalty
should not be imposed....” (Emphasis added.) Unques-
tionably, a reasonable juror might well infer from
this parallel syntax that the enumerated factors --
both aggravating and mitigating -- were the sole
fetors that he was permitted to consider in the
discharge of his oath....
The State suggests that, to the contrary, the
omission of the word "only" from the instruction
as to mitigating circumstances would lead a reasonable
juror to infer that his consideration of mitigating
factors was not limited to those announced by the
trial court. Perhaps an extraordinarily attentive juror
might rationally have drawn such an inference from the
mission of this single word. Indeed, such narrow
parsing of language is far from unknown in the related
context of judicial interpretation of legislative
pronouncements. Nonetheless, at best the State's
argument suggests that there is more than one reason-
able interpretation of the crucial langauge in the
charge; this does not mean the charge is not constitu-
tionally infirm, for the Supreme Court has held that
"whether a defendant has been accorded his constitu-
tional rights depends upon the way in which a reasonble
juror could have interpreted the instruction." Sandstrom
442 U.S. at 514, 99 S.Ct. at 2454 (emphasis added).
25/ To be sure, the en banc court's failure to find under
Sandstrom that a reasonable juror could have thought himself
precluded was premised on its reading of Frady, 456 U.S. at
170, to shift the burden to petitioner to demonstrate that the
jury was misled. App. 9a. We show below both that the court
misapplied Frady and that the jury was indeed misled.
= 39 -
Washington, 655 F.2d at 1370 (footnotes omitted) (emphasis in
original).
Similarly, the court's reliance on this Court's observation
in Proffitt is misplaced. Sandstrom makes clear that no matter
how persuasive or authoritative a judicial interpretation
may be, "it is not the final authority on the interpretation
which a jury could have given the instruction.” 422 U.S. at
516-17. This Court's observation in Proffitt does not suggest
that the language of the instruction -- which tracked the
Statute -- was clear on its face. Virtually every court in
Florida, including the Florida Supreme Court itself, had parsed
the same statutory language and made the opposite interpretation.
See Cooper v. State, 336 So.2d 1133, 1139 & n.7 (Fla. 1976)
(holding that the same language limits consideration to the
aggravating and mitigating circumstances listed in the statute).
The en banc court's conclusion about how a jury would have
understood this instruction is based on a sophisticated judicial
parsing of language that no jury could be expected to md
-- even if it had the text in front of it, which it did not --
and that even the Florida Supreme Court did not achieve.
The second factor relied on by the court below was its
purported distinction of Washington on the ground that, in
Washington, the trial judge had made a further reference to
"the preceding [two enumerated] elements of mitigation.”
Washington's holding of constitutional error clearly relied
primarily upon the portion of the Washington instructions that
is identical to those in the present case; its reference to
26/ The en banc majority's didactic parsing of the jury instruc-
tion in a way that no lay juror could reasonably be expected to
duplicate is uncomfortably reminiscent of its reading of the
Brown court's subjunctive assumption of the petitioners’ factual
allegations as a "finding of fact.” See Point I, Supra.
= 60 -
the "preceding elements” passage was merely corroborative.
If corroboration of the effect of the instructions common to
the two cases is needed, it is found in Ford in greater measure
than in Washington. The original instructions in Ford left
the jury uncertain about which mitigating circumstances they
were permitted to consider. As a result, the foreman asked
the judge during deliberations for additional instruction
concerning the permissible aggravating and mitigating circum-
Stances. As noted above: (1) the judge told the foreman that
the "list" of factors in the charge constituted "th
o
Y
litigating
and aggravating circumstances" which the jurors were to consider;
(2) the foreman repeated to the other jurors that the “list” of
factors in the charge constituted
counsel] consider the aggravating circumstances; what they
consider the mitigating circumstances"; and (3) the judge
thereupon read the entire offending, syntactically parallel
portion of the original instructions to the jury a second time.
T. 1351-1356 (emphasis added). Thus, it is obvious that the
jury found the original instructions far less clear than did
the en bane majority. The judge's subsequent efforts only
reinforced the erroneous impression that the statutory mitigat=-
ing circumstances were exclusive.
The en banc court's third reason was that the jury did
hear evidence and argument on the nonstatutory mitigating
factors. But the question is not whether the jury heard the
evidence, it is whether the jury thought it was permitted to
consider it. The sentencers in Lockett and Eddings also heard
the nonstatutory mitigating evidence. But, as Washington
explains, the “evidence and argument” analysis
completely miss[es] the point of the ... holding
in Lockett. Sandra Lockett also introduced evidence
of nonstatutory mitigating factors, and also argued
their relevance to the sentencer. The fatal flaw in
Lockett was not the exclusion of evidence relating to
nonstatutory mitigating factors, but the limitation on
the sentencer's consideration of that evidence except
as it related to the statutory mitigating factors.
Neither should [the] challenge fail because
ees COunsel adverted to nonstatutory mitigating
circumstances during closing argument. As the Supreme
Court has noted in a related context, “arguments of
counsel cannot substitute for instructions by the
court." Taylor v. Kentucky, 436 U.S. 478, 468-89, 98
S.Ct. 1930, 1936-37, 56 L.Ed.2d 468 (1978).
655 F.2d at 1375.
The en bane court's fourth reason provides even less
support for its conclusion. Nothing in the trial judge's
sentencing opinion, written after the jury returned its death
verdict, could possibly indicate what the jury might or did
perceive from the instructions given prior to its deliberations.
That the trial judge correctly understood the law has no bearing
on what the jury thought if he didn't tell them. The court
below did not and cannot point to a single word of the instruc-
tions or any of the proceedings in the jury's presence that
purportedly conveyed this “perception” to them.
B. The court of appeals' holding that there was
insufficient “prejudice” under Wainwright v. Sykes,
433 U.S. 72 (1977), to excuse a procedural
default presents an important question of federal
law that has not been, but should be, settled by
this Court.
As an alternative ground, the en banc court held that Mr.
Ford had not demonstrated sufficient prejudice to excuse
his failure to raise the jury instruction claim "at trial
[or] ... On direct appeal." App. 9a, 10a and 18a-19a. Having
determined that Mr. Ford had committed a procedural default
27/
under Florida law, the en banc court passed over the question
27/ Subsequent to the ruling in Ford, counsel became aware that
the Florida Supreme Court does not in fact follow a con-
sistent procedural default rule that can serve as "an indepen-
dent and adequate state procedural ground that bars the
= 42 -
8/
whether Mr. Ford had shown sufficient cause for his default
and focused on whether there was sufficient prejudice resulting
from the claimed constitutional error to warrant its review on
the merits. App. 9a, 10a and 19a. Applying the Court's
27/ continued
federal courts from addressing the issue on habeas corpus."
County Court of Ulster County v. Allen, 442 U.S. 140, 148
(1979). In his state post-conviction proceedings in Straight
v. Wainwright, 422 So.2d 827 (Fla. 1982), the petitioner
raised the same instructional error as that presented here.
Compare id. at 831 with App. 101a. Straight's former counsel
had committed the same procedural default as Ford's. Compare
stbagit: 422 So.2d at 829-39 with App. 102a. Yet in Stra ate
the Florida Supreme Court reached the merits of the claim,
So.2d at 831, while in Ford, the court refused to consider the
issue because of the prior procedural default. App. 10la.
This inconsistency, it turns out, is by no means rare.
Compare Alvord v. State, 396 So.2d 184 (Fla. 1981); Smith v.
State, 400 So.2d 956, 958-959 (Fla. 1981); Goode v. State, 403
So.2d 931, 932 (Fla. 1981); Dobbert v. State, 409 So.2d 1053,
1058 (Fla. 1982); Demps v. State, 416 So.2d 808, 809 (Fla.
1982); Songer v. State, 419 So.2d 1044, 1047 (Fla. 1982);
Antone v. State, 410 So.2d 157, 163 (Fla. 1982); Thomas v.
State, 421 So.2d 160, 162 (Fla. 1982) (court finds procedural
defaults) with Douglas v. State, 373 So.2d 895, 896-897 (Fla.
1979); Adams v. State, 380 So.2d 423, 424 (Fla. 1980); Demps v.
State, 416 So.2d at 809; Ruffin v. State, 420 So.2d 591, 594
(Fla. 1982); Hall v. State, 420 So.2d 8672, 873-74 (Fla. 1982)
(court reaches merits despite failure to raise issue on direct
appeal).
In effect, Florida's procedural default “rule” is merely a
device by which the state court can turn on or off at will its
receptivity to constitutional claims. Barr v. City of Columbia,
378 U.S. 146, 149-50 (1964). See also NAACP v. Alabama ex rel.
Patterson, 357 U.S. 449, 458 (1958). The result is that, when
they subsequently present their constitutional claims in
federal habeas corpus proceedings, some death sentenced peti-
tioners are able to obtain rulings on the merits while others
are not. Since the determination of a capital sentencing
issue on the merits can mean the difference between life and
death, the lightning-like arbitrariness of Florida's procedural
default "rule" cannot be sanctioned because it results in the
same random cruelty condemned in Furman.
28/ The en banc court did not rule on the “cause” require-
ment. However, it did note that, prior to Ford's trial in
1974, the Florida courts had consistently ruled that only
statutory circumstances could be considered in mitigation.
Indeed, the Florida Supreme Court so ruled two years later
in Cooper v. State, 336 So.2d at 1139 and n. 7 (1976). Lockett
was not decided until 1978, four years after trial. Thus,
there was no way counsel could have foreseen this constitutional
development and known to raise it at trial.
- 43 =
articulation of the “prejudice” standard in Frady, 456 U.S. at
170, the court reached the conclusion that Mr. Ford's demonstra-
tion of prejudice was insufficient.
The nonstatutory mitigating evidence
consisted of testimony by Ford's
mother and girlfriend about his family
life, education, and work history and
testimony by a psychiatrist portraying
him as a bright young man frustrated by
dyslexia. We agree with Chief Judge
Godbold that failure to consider this
testimony would not create a substantial
likelihood that there was actual and
substantial disadvantage to the defendant.
App. 10a.
The en bane court's analysis misreads Frady, misapplies
this Court's precedents under the eighth amendment regarding
the critical importance of consideration of all relevant
mitigating evidence, and conflicts with the Fifth Circuit's
decision in Washington. It also seriously distorts the
nature of the nonstatutory mitigating evidence submitted to
the jury in this case.
Under Frady, the petitioner must show "actual and substan-
tial disadvantage, infecting his entire trial with error of con-
stitutional dimensions," 456 U.S. at 170 (emphasis in original);
there must be a "substantial likelihood the erroneous...
instruction prejudiced [his] chances with the jury." Id. at
174. Plainly, there was such a substantial likelihood here. A
fundamental principle of this Court's cases governing capital
sentencing is that the sentencer must be permitted to consider
all mitigating evidence. This Court has never hesitated to
reverse a death sentence if the sentencer's consideration of
mitigating circumstances was in any way restricted. Woodson v.
North Carolina, 428 U.S. at 303-305; Roberts (Stanislaus) v.
Louisiana, 428 U.S. 325, 331-334 (1976); Roberts (Harry) v.
Louisiana, 431 U.S. 633, 636-637 (1977); Lockett, 438 U.S. at
- 44 -
607-608; Green v. Georgia, 442 U.S. 95, 97 (1979); Eddings, 455
U.S. at 113-14. Accord Washington, 655 F.2d at 1375. If the
instructions in Ford limited the jury to considering only
statutory mitigating circumstances -- as we have shown they did
29/
-- then Mr. Ford suffered “actual and substantial disadvantage.”
Since the consideration of all mitigating evidence is "“consti-
tutionally indispensible,” Woodson, 428 U.S. at 304, this
Gisadvantage “so infected the sentencing proceedings as to
drain them of fundamental fairness. " Washington, 655 F.2d at
1376.
Moreover, in not one of the cases where the Court
has reversed because mitigating evidence was excluded from
consideration has it considered the strength, substantiality,
or persuasiveness of the mitigating evidence that the sentencer
was prevented from considering. The only touchstone has been
relevance. If relevant mitigating evidence has been excluded
from th. sentencer's consideration, the death sentence has been
reversed,
The sentencer, and the Court of
Criminal Appeals on review, may de-
termine the weight to be given rele-
vant mitigating evidence. But they
may not give it no weight by excluding
such evidence from their consideration
[footnote omitted) ... . On remand
the state courts must consider all rele-
vant mitigating evidence and weigh it
against the evidence of the aggravating
circumstances. We do not weigh the
evidence for them.
Eddings, 455 U.S. at 114-15, 117. Accord Washington, 655 F.2d at
29/ The bulk of the mitigating evidence that Mr. Ford proffered
was not relevant to any of the statutory mitigating circumstances.
See discussion infra at 46. The court below does not suggest
that it could have been considered by the jury in connection
with any of the enumerated statutory mitigating circumstances.
1375. In contrast to this clear principle -=- which recognizes
both the intractable nature of the decision to impose death and
the inappropriateness of a federal appellate court's substitut-
ing itself for the sentencer -- the en banc court has imported
a “weighing” test into the analysis of whether a capital defendant
was “prejudiced” by the exclusion of some mitigating evidence.
This should not stand unreviewed.
Finally, it should be noted that the en banc majority
seriously distorted the nature and importance of the mitigating
evidence in this case. As summarized by the dissent:
Ford's mother testified that his father
had been a belligerent alcoholic during
his childhood. She described petitioner's
efforts as a boy, to assume paternal respon-
sibilities toward his younger siblings,
including working during high school and
after graduation to provide financial
Support for the family. A psychiatrist
testified that Ford was bright and an
overachiever but that he suffered from a
type of brain damage known as Dyslexia,
which results in a difficulty working with
numbers. The psychiatrist described Ford's
generally successful endeavors in his
employment, which were subsequently thwarted
when a promotion placed him in a position
requiring mathematical computations. In
the psychiatrist's view, Ford's actions in
committing the robbery and murder stemmed
from intense depression and frustration
related t> his disability rather than from
a lack of moral standards. The psychiatrist
stated that he believed petitioner could be
rehabilitated,
App. 56a. Even if a weighing test could be indulged to
second-guess the sentencer's decision in matters governing
life and death <= a proposition entirely without support
30/
in this Court's decisions -- there is no way an appel-
30/ In Frady, the Court did review the evidence to determine
whether the verdict would have been different. However,
Frady involved a determination of guilt, closely bound by legal
rules defining the elements of the offense and the burden of
proof demanded for conviction. It did not involve predicting
the reaction of a jury to mitigating evidence in the context of
the delicate decision to take or spare a human life. See
People v. Hines, 390 P.2d 398, 402 (Cal. 1964).
- 46 =
late court can determine what sentence a jury would have
rendered had it been permitted to consider the evidence just
described. This is particularly true here, where the other
side of the equation was unfairly weighted by the improper
consideration of at least three of the eight aggravating
circumstances. See Point I!, supra. If the Court's admonitions
regarding reliability in capital sentencing are to have any
meaning, the writ should be granted.
= 47 -
CONCLUSION
For the reasons express herein, che petition for a writ of
certiorari should be granted.
Dated: dun 13, 19% 3
Respectfully submitted,
(\ / / |
MARVIN E. FRANKEL
Kramer, Levin, Nessen,
Kamin & Frankel
919 Third Avenue
New York, New York 10022
(212) 715=9100
i
-
- a
RICHARD H. BURR, IIt
224 Datura Street, 13th Floor
West Palm Beach, Florida 33401
(305) 837=2150
‘
~~ se ovr = *~ we be
LAURIN A, WOLLAN, JR.
1515 Hickory Avenue
Tallahassee, Florida 32303
(904) 222-4245
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