# Petitioners Brief — Spaziano v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 447

## Text

Table of Authorities Continued

Douglas v. State, 373 So.2d 895 (Fla. 1979)
Douglas v. State, 328 So.2d 18 (Fla. 1976)

Duncan v. Louisiana, 391 U.S. 145 (1968)
Eddings v. Oklahoma, 455 U.S. 104 (1982)
Engle v. State, 438 So.2d 803 (Fla. 1983)

Enmund vy. Florida, ___ U.S. ___, 102 S.Ct. 336
(1982)

Felicia v. United States, 495 F.2d 353 (8th Cir. .1974) .
Ford v. Strickland, 696 F.2d 804 (11th Cir. 1983) ....
Furman v. Georgia, 408 U.S. 238 (1972)
Gardner v. Florida, 430 U.S. 349 (1977)

20, 21, 22, 27, 29, 33, 34, ;
Hall v. State, 403 So.2d 1319 (Fla. 1981)
Hawkins v. State, 436 So.2d 44 (Fla. 1983)
Hawkins v. Wainwright, 408 U.S. 941 (1972)
Herzog v. State, 439 So.2d 1372 (Fla. 1983)

Holloway v. Florida, 449 U.S. 905 (1980)

Holloway v. State, 379 So.2d 953 (Fla. 1980)

Horning v. District of Columbia, 254 U.S. 135 (1920) .
Hoy v. State, 353 So.2d 826 (Fla. 1978)

Humphrey v. Cady, 405 U.S. 504 (1972)

In re Baker, 267 So.2d 331 (Fla. 1972)

Inre Florida Rules of Criminal Procedure, 403 So.2d 979
(Fla. 1981)

vi

Table of Authorities Continued

Jenkins v. United States, 380 U.S. 445 (1965)
Johnson v. Florida, 408 U.S. 939 (1972)
Johnson v. State, 393 So.2d 1069 (Fla. 1981) ...
Jones v. State, 332 So.2d 615 (Fla. 1976)

Jurek v. Texas, 428 U.S. 262 (1976)

Keeble v. United States, 412 U.S. 205 (1973) .
Knight v. State, 338 So.2d 201 (Fla. 1976)

Lane v. State, 337 So.2d 976 (Fla. 1976)

Lindsey v. State, ___ So.2d __, (Ala. Ct. Crim. App. 1
a No. 483) appeal pending Alabama Supreme
ourt

Lockett v. Ghio, 488 U.S. 586
RE ee re 24, 29, 32, 34, 38, 42, 46,

Lusk v. State, ___. So.2d , 9 Fla. L. Week 39 (Fla.
1984)

McCaskill v. State, 344 So.2d 1276 (Fla. 1977)

McCrae v. State, 395 So.2d 1145 (Fla. 1981)

McGautha v. California, 402 U.S. 183 (1971) ... 238, 28,
Mead v. State, 101 So.2d 373 (Fla. 1958)

Messer v. State, 330 So.2d 137 (Fla. 1976)

Miller v. State, 332 So.2d 65 (Fla. 1976)

Miller v. State, 415 So.2d 1262 (Fla. 1982)

Mitchell v. State, 101 So.2d 373 (Fla. 1958)

Mitchell v. State, 157 Fla. 121, 25 So.2d 73 (1946) ....

on. v. State, ___ So.2d ____ (Ala. Ct. Crim. App. 3d
iv. No. 604), appeal pending Alabama Supreme
Court No. 82-743

Newman v. Wainwright, 464 F.2d 615 (5th Cir. 1972) .
Nims v. State, 70 Fla. 530, 70 So. 565 (1915)

Vil
Table of Authorities Continued

Norris v. State, 429 So.2d 688 (Fla. 1983)
Odom v. State, 403 So.2d 936 (Fla. 1981)
Paramore v. Florida, 408 U.S. 935 (1972)
People v. Fitzpatrick, 308 N.Y.S. 2d 18 (1970)
Pitts v. Wainwright, 408 U.S. 941 (1972)
Porter v. State, 429 So.2d 293 (Fla. 1983)
Presnell v. Georgia, 439 U.S. 14 (1978)
Proffitt v. Florida, 428 U.S. 242

Quince v. State, 414 So.2d 185 (Fla. 1982)
Richardson v. State, 437 So.2d 1091 (Fla.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555

(1980)
Reed v. State, 267 So.2d 70 (Fla. 1972)
Routly v. State, 440 So.2d 1257 (Fla. 1983)
Sawyer v. State, 313 So.2d 680 (Fla. 1975)
Schiro v. State, 451 N.E.2d 1047 (Ind. 1983)

Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981), modified,
671 F.2d 858 (5th Cir. 1982)

Smith v. State, 403 So.2d 933 (Fla. 1981)
Snipes v. State, 154 Fla. 262, 17 So.2d 93 (1944)
Spaziano v. Florida, 454 U.S. 1037 (1981)
Spaziano v. State, 483 So.2d 508 (Fla. 1983)

—— v. Wainwright, 578 F.2d 582 (5th Cir.
1978)

State v. Dixon, 283 So.2d 1 (Fla. 1973)
State v. Hickman, 189 So.2d 254 (Fla. 2d DCA 1966) .
State v. King, 282 So.2d 162 (Fla. 1973) 9, 17, 18

State 2 rel Mauncy v. Wadsworth, 293 So.2d 345 (Fla.
1974)

Vili

Stevens v. State, 419 So.2d 1058 (Fla. 1982)
Tedder v. State, 322 So.2d 908 (Fla. 1975)
Thomas v. Florida, 408 U.S. 935 (1972)

Jay Thompson v. State, Indiana Supreme Court No. &882-
S 303 (Harrison County No. 81-S 62, sentenced on
March 18, 1982)

Trop v. Dulles, 356 U.S. 86 (1958)
Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982) ..

Tucker v. Zant, ___. F.2d ___, No. 83-8137 (11th Cir.
January 20, 1984)

United States v. Bailey, 468 F.2d 652 (5th Cir. 1972), aff'd
en banc, 480 F.2d 518 (Sth Cir. 1973)

~ United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969)

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

United States v. John, 437 U.S. 634 (1978)

Washington v. State, 482 So.2d 44 (Fla. 1983)

Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981),
reh. den. with opinion, 662 F.2d 1116 (5th Cir.), cert
denied, 456 U.S. 949 (1982)

CP
—

Weaver v. State, 220 So.2d 53 (Fla. 2d DCA 1969) ....
White v. State, 403 So.2d 331 (Fla. 1981) ........... 50,
Williams v. Florida, 399 U.S. 78 (1970) ....... 21, 34,
Williams v. New York, 337 U.S. 241 (1949)

Williams v. Wainwright, 408 U.S. 941 (1972) 40
Witherspoon v. Illinois, 391 U.S. 510 (1968) ....... 24, 32
Woodson v. North Carolina, 428 U.S. 280 (1976) .. passim
Zant v. Stephens, ____ U.S. —__.,, 108 S.Ct. 2733 (1983) 45
Zeigler v. State, 402 So.2d 365 (Fla. 1981)

STATUTES:

Fla. Stat. § 982.465 (1973)
Fla. Stat. § 921.141 (1973)
Fla. Stat. § 782.07 (1973)
Fla. Stat. § 782.04 (1973)

—
th

ix

Table of Authorities Continued

Fla. Stat. § 775.15 (Supp. 1974)
New Mexico Acts of 1939, Ch. 49
RULEs:

Fed. R. Civ. P. 50

Fla. R. Crim
Fla. R. Crim.

OTHER:
Books and Reports

American Bar Association, Minimum Standards in
Sentencing

American Law Institute, Model Penal Code (Prop. Off.
Draft 1962) 37,

Berns, For Capital Punishment (1979)

Bowers, Executions In America (1974)

Cohen, Reason and Law (1950) .....................
Goodhart, English Law and the Moral Law (1953) ....
Kalven & Zeisel, The American Jury (1966)

Packer, The Limits of the Criminal Sanction (1968) ...

Partridge & Eldridge, The Second Circuit Sentencing
rae § A Report to the J udges of the Second Circuit
(Wash., D.C., Federal Judicial Center 1974)

President’s Commission on Law Enforcement and
Administration of Justice: The Challenge of Crime
- i i ree Society Task Force Report, The Courts
( |

X

Table of Authorities Continued
Page
Royal Commission on Capital Punishment, 1949-1953
(1953) 30, 37, 46
Rubin, The Law of Criminal Correction (1973)

Stephen, A General View of the Criminal Law of England
(2d ed. 1890)

Periodicals

Ehrhardt and Levinson, Florida’s Legislative Response
to Furman: An Exercise in Futility? 64J. Crim. L. &
Criminology 10 (1973) 38, 39

Foley, Florida After the Furxean Decision: Discretion in
the Imposition of the Death Penalty (unpublished
paper at the University of North Florida)

Gardner, The Renaissance of Retribution — An Exami-
nation of Doing Justice, 1976 Wisc. L. Rev. 781 .. 30

Gillers, Deciding Whe Dies, 129 U. Pa. L. Rev. 1
(1983) ' +. passim
Greenwalt, “Unconirol!lable” Actions and the Eighth

Amendment: Implications of Powell v. Texas, 69 Col-
um. L. Rev. (1969)

Hart, The Aims of the Criminal Law, 23 L. & Contemp.
Soc. Prob. 401 (1958)

Hoffman and Meierhober, a of Guidelines of
Sentencing, 3 L. & Psych. Rev. 53 (1977)

LaFont, Assessment of Punishment — A Judge or Jury
Function, 38 Tex. L. Rev. 834 (1960)

Liebman and Shepard, Guiding Capital Sentencing Dis-
cretion Beyond the “Boiler Plate”: Mental Disorder
as a Mitigating Factor, 66 Geo. L. J. 757 (1978) ..

Manneheim, The Capital Punishment Cases: A Criticism
of Judicial Method, 12 Loy. L. Rev. 85 (1978) ....

Marcus, Allen Instruction in Criminal Cases: Is the Dee

ev.

mite Charge About to be Defused? 43 Mo. L.
013 (1978)

xi

Table of Authorities Continued
Page

Post-Furman Death Sentences in Florida (unpublished
compilation prepared by Capital Punishment Proj-
ect, Department of Sociolo
Director, University of Flori

New York District Attorney’s Association, Memorandum
and Draft Bill (October 17, 1960)

hear 6d Trial of Crimes, 23 Wash. and Lee L. Rev. 1
(1

Radelet and Vandiver, The Florida Supreme Court and

Death Penalty Appeals, 74J. Crim. L. and Criminol-
ogy 401 (1983) 31, :

Shipiro, First Degree Murder Statutes and Capital
Sentencing Procedures: An Analysis and Compari-
son of Statutory Systems for the Imposition of the
Death Penalty in Georgia, Florida, Texas, and

Louisiana, 24 Loy. L. Rev. 709 (1978)

37
Togman, The Two-Trial System in Capital Cases, 39
Rais ae Oe oF re a 25, 37

Wollan, The Death Penalty After Furman, 1974 Crim. J.
Sys. Rev. 213

Comment, Jury Discretion and the Unitary Trial Proce-
dure in Capital Cases, 26 Ark. L. Rev. 33 (1972) .

Note, Florida’s Legislative and Judicial Responses To
Furman v. Georgia: An Analysis and Criticism, 2
Fla. St. L. Rev. 108 (1974)

BRIEF FOR PETITIONER

OPINIONS BELOW

The initial opinion of the Florida Supreme Court on direct
appeal affirming petitioner’s conviction, but remanding his
death sentence in light of Gardner v. Florida, 430 U.S. 349
(1977), is reported in Spaziano v. State, 393 So.2d 1119 (Fla.
1981), cert. denied, 454 U.S 1037 (1981) and is set out in the
Joint Appendix at pages 18-23. The opinion of the Supreme
Court of Florida affirming the reimposition of the death sent-
ence is reported at 433 So.2d 508 (Fla. 1983) and is set out at
pages 45-51 of the Joint Appendix.

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C. § 1257(3),
the petitioner having asserted below and asserting herein a
deprivation of rights secured by the Constitution of the United
States. The judgment of the Supreme Court of Florida was
entered on May 26, 1983. A timely motion for rehearing was
denied by that court on July 13, 1983. The Honorable Lewis F.
Powell, Jr., Associate Justice of the Supreme Court of the
United States, issued an order extending the time within
which to file a petition for writ of certiorari to and including
October 11, 1983. Certiorari was granted on .‘anuary 9, 1984.
—_. U.S. —__, 104 S.Ct. 697 (1984).

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

This case involves the Fifth, Sixth, Eighth and Fourteenth
Amendments to the Constitution of the United States which
are set out in Appendix A hereto. This case also involves the
following provisions of the statutes and rules of the State of
Florida, which are set forth at Appendix A: Fla. Stat.
$§ 782.04, 921.141, 932.465, and Fla. R. Crim. Proc. 3.490.

STATEMENT OF THE CASE

On August 21, 1973, the decomposing corpse of a young
woman was discovered in a garbage dump in Seminole County,
Florida (T 213)'. The deceased was identified, by dental rec-
ords, as Laura Harberts, last seen alive on August 5, 1973.

Joseph Spaziano was indicted by a Seminole County grand
jury for the first degree murder of Ms. Harberts on September
12, 1975 (JA 2-3). The state’s chief witness was an acquaintance
of Mr. Spaziano named Anthony Dilisio, who was sixteen years
old at the time of the events in question. He testified that he
accompanied wetitioner to a dump, for the ostensible reason,
according to Dilisio, that petitioner could show him some of the
women that he had raped and tortured (T 626-627). Dilisio
testified that he saw two female bodies situated in the dump (T
631). He did not report what he had seen to the police (T 689).

The state’s case rested exclusively upon the testimony of
Dilisio, whose credibility was sharply contested at trial. Peti-
tioner argued that Dilisio was unworthy of belief for several
reasons. First, Dilisio had a motive to lie (R 49-50). Second,
according to his father, Dilisio had a tendency to exaggerate
the truth, although not to the point of being an “extreme”
pathological liar (R 182). Third, Dilisio was an admitted drug
user before, during and after the alleged incident at the dump.
(T 655-657). Fourth, he never testified about the alleged in-
cident at the dump until after he went to a police hypnotist (R
80). Further, Dilisio gave several inconsistent statements

‘In the brief, the symbol “JA” will be used to designate references
to the Joint Appendix. As to the portions of the record not included in
the Joint Appendix, the following symbols will be used:

The transcript of the original sentencing trial;
The record on appeal in the direct appeal;

The record on appeal in the resentencing proceed-
ings.

3

regarding the location of the bodies he allegedly saw and the
route taken to arrive there.

Aside from Dilisio the evidence consisted of testimony of two
of the deceased’s friends and two individuals who had known
Mr. Spaziano. The state attempted to prove through the testi-
mony of Beverly Fink and Jack Mallen, the deceased’s room-
mate and the roommate’s boyfriend, that Mr. Spaziano knew
the deceased prior to her death. Both witnesses testified that
an individual they identified as Mr. Spaziano came to the door
of the apartment sometime in July and asked to see the de-
ceased (T 401-402, 467-468). However, they identified that
individual, who said he was a traveling cook, to be Mr. Spa-
ziano from an arguably suggestive photographic lineup, see
State’s Exhibit 7. Ms. Fink also testified that the deceased was
dating several individuals, one of whom was name “Joe”, but
none of whom was Mr. Spaziano (T 408-409, 410, 411, 487). In
addition, William Coppick and Mike Ellis testified that approx-
imately two years prior to the alleged incident, Mr. Spaziano
lived in a trailer in the same general area where the deceased’s
body was found. Mr. Coppick also testified that Mr. Spaziano
told him about finding some bones, but never said where or
exactiv when the alleged conversation took place (T 563, 572).
Mr. Ellis further stated that Mr. Spaziano took him to the
general area where the body had been found and he concluded
that Mr. Spaziano went to get some marijuana “stashed” there
(T 599-600, 602-603). Again, Mr. Ellis was unsure of the date
when this took place. The medical examiner testified that he
conducted an autopsy the morning after the body was dis-
covered (T 292) and found no evidence of trauma (T 294) and
could not give an opinion as to the cause of death (T 298).

After the submission of evidence, outside the presence of the
jury, the trial judge presented petitioner with the choice of
waiving the statute of limitations which had run as to all lesser
included noncapital offenses or having the jury instructed only
as to first-degree murder. Petitioner chose the latter with the
result that the jury was not permitted to consider verdicts of

guilt of lesser included, noncapital offenses (T 751-755). The
jury, after deliberating more than five hours and after being
given a “jury deadlocked” charge, returned a verdict of guilty
of first-degree murder (T 808-820). The same jury recommend-
ed that petitioner be sentenced to life imprisonment (TS 28),
but the advisory verdict was overridden by the trial judge who
sentenced petitioner to death (JA 13). Thereafter, petitioner
appealed his conviction and sentence to the Florida Supreme
Court, which affirmed the conviction but reversed the death
sentence for a violation of Gardner v. Florida, 430 U.S. 349
(1977), and remanded for a hearing before the trial judge.
Spaziano v. State, 393 So.2d 1119 (Fla. 1981). In that direct
appeal petitioner specifically raised the issue regarding the
constitutionality of his death sentence under Beck v. Alabama,
447 U.S. 625 (1980) where the jury had been precluded from
considering petitioner’s guilt of an offense less than capital
homicide. The Supreme Court of Florida squarely reached the
federal question in its opinion on direct appeal and ruled that
there had been no constitutional violation (JA 22). The federal
question was further pursued by petitioner in his motion for
rehearing. The court denied rehearing, though the two dis-
senting justices wanted to consider the question further (JA
24). Petitioner also challenged the constitutional propriety of
the imposition of the death sentence over the jury’s life verdict,
but because of the court’s disposition—the Gardner remand of
the sentence—these questions were not reached.

A Gardner resentencing hearing was held on May 8, 1981 in
the trial court before the judge only, in accord with the Florida
Supreme Court’s limited remand. Despite the earlier jury
verdict of life, petitioner was again sentenced to death (JA 29).

Petitioner appealed his death sentence to the Florida Su-
preme Court, which affirmed. Spaziano v. State, 433 So.2d 508
(1983). In his appeal, petitioner again challenged the propriety
of overriding the jury’s life verdict. He contended that the
override in his case violated the Eighth and Fourteenth
Amendments and that it is constitutionally impermissible in all
cases to override the jury’s verdict for life. The Florida Su-

preme Court ruled directly upon the federal question, relying
upon its previous decision in Douglas v. State, 373 So.2d 895
(Fla. 1979) where it upheld the constitutionality of the override
under the Fifth, Sixth, Eighth and Fourteenth Amendments,
and again found no constitutional violation in the procedure
(JA 48-49). Further, the court affirmed petitioner’s death sent-
ence: “We find the facts suggesting that the death sentence be
imposed over the jury’s recommendation of life, . . . meets the
clear and convincing test to allow the override of the jury’s
recommendation in accordance with previous decisions of this
Court.” (J A 48). The question was again presented to the court
by motion for rehearing requesting the court to reconsider its
previous decisions holding that the jury override did not
violate the Fifth, Sixth, Eighth and Fourteenth Amendments.
The court denied rehearing (JA 52).

Petitioner timely filed in this Court his petition for a writ of
certiorari which was granted on January 9, 1984 (JA 53).

SUMMARY OF ARGUMENT

1. This case is before the Court in precisely the same legal
and factual posture as was Beck v. Alabama, 447 U.S. 625
(1980). Mr. Spaziano’s jury, just as Mr. Beck’s jury, was pre-
cluded by operation of law from considering any offenses less
than capital homicide, though there was a reasonable basis in
the evidence to support such lesser included offenses. Beck
found such a situation to “introduce a level of uncertainty and
unreliability into the factfinding process that cannot be toler-
ated in a capital case.” Jd. at 643. The dangers identified in
Beck came to pass in this case. The jury, faced with an impossi-
ble two-option dilemma, had great difficulty reaching a ver-
dict, dging so only after an Allen charge. This situation posed
as great a threat to reliability as did the situation in Beck. More
than in Beck the record shows that the evil it predicted actually
occurred in this case. The jury issued an almost immediate life
sentencing verdict under circumstances indicating that it was
using that verdict as a safeguard against the result of its
two-option dilemma. Accordingly, Beck controls this case and

6

mandates that Mr. Spaziano’s death sentence be vacated. The
fact that the source of the unreliability was a statute of limita-
tions rather than an “express statutory provision” as charac-
terized by the court below, does not make Mr. Spaziano’s case
more reliable or more constitutionally tolerable.

2. Whether analyzed under the Eighth Amendment, the
Sixth Amendment or the Due Process Clause, Florida’s jury
override violates the Constitution. First, the objective indicia
such as historical usage and legislative enactments compel two
conclusions: (1) that juries, not judges, are best equipped to
make reliable death decisions and (2) that a jury’s decision for
life is inviolate.

Second, the Court’s independent judicial judgment should
confirm the nearly universal legislative rejection of the jury
override in capital cases. Death is different, in part, because it

is a uniquely retributive punishment. Since the death penalty
is society’s expression of outrage at offensive conduct, the jury
not the judge, is more likely to reliably place the offense and
the offender on society’s yardstick of moral outrage. Further,
petitioner will demonstrate that the countervailing considera-
tions are insufficient to justify the override procedure. Flor-
ida’s override is based on no judgment, legislature or judicial,
that such a procedure serves an important state interest; the
override is rather a misguided attempt to comply with Fur-
man. In addition, jury nullification, i.e., the jury’s exercise of
its power to bring in a verdict of acquittal in the teeth of both
law and facts, is not a factor. By expressing its judgment to
spare the life of a particular accused, the jury is not nullifying
the law; it is performing precisely the function for which it was
empaneled. Finally, while judges may bring a variety of pro-
fessional skills to noncapital sentencing, those skills cannot
substitute for a jury sitting as the “peers” of the accused. To
the extent that the death decision is a decision whether to be
retributive, it is the jury, not the judge, that has the “ex-
pertise.” To the extent that the death decision involves find-
ings of fact, Bullington v. Missouri, 451 U.S. 430 (1981) man-
dates that the jury’s findings cannot be overridden.

‘

3. The Florida standards governing the override of ajury’s
life verdict were, in this case, applied in a manner that deni-
grated the jury’s consideration of mitigating factors and that
was so vague and broad as to violate the constitutional require-
ment of reliability in death determinations. Petitioner’s death
sentence was the result of pincer-like constraints on the jury’s
ability to exercise its decision-making power in a rational and
reasonable manner. On the one hand, the jury was deprived of
the ability accurately to gauge the weight of the evidence
against petitioner because of the failure to give the lesser
included offenses. On the other hand, the jury’s apparent at-
tempt to proportion its verdict to petitioner’s culpability at the
sentencing phase was overriden by the judge.

Florida law holds that a jury’s verdict for life cannot be
overturned unless no reasonable basis exists for the verdict.
But that standard was not applied here, because there was a
reasonable basis for the jury’s life verdict: the weakness of the
evidence regarding petitioner’s culpability. Reasonable people
could and did disagree over the fate of Joseph Spaziano.

ARGUMENT
I

A DEATH SENTENCE IMPOSED AFTER A JURY VERDICT
OF GUILT OF A CAPITAL OFFENSE, WHEN THE JURY
WAS NOT PERMITTED TO CONSIDER A VERDICT OF
GUILT OF LESSER INCLUDED OFFENSES THOUGH THE
EVIDENCE WOULD HAVE SUPPORTED SUCH A
VERDICT, VIOLATES THE EIGHTH AMENDMENT AND
THE DUE PROCESS CLAUSE.

This case is before the Court in precisely the same factual
and legal posture as was Beck v. Alabama, 447 U.S. 625 (1980).
Mr. Spaziano’s jury, just as Mr. Beck’s jury, was precluded by
operation of law from considering any offenses less than capital
homicide, though there was a reasonable basis in the evidence
to support such lesser-included offenses. The lack of this “third
option” was found in Beck to “introduce a level of uncertainty
and unreliability into the factfinding process that cannot be

8

tolerated in a capital case.” Jd. at 643. Those dangers identified
in Beck plainly came to pass in this case. We will demonstrate
that Beck controls to require Mr. Spaziano’s death sentence be
vacated, and that the state’s statute of limitations does not
excuse or make more constitutionally tolerable the uncertainty
and unreliability interjected into Mr. Spaziano’s trial.

A. Beck Requires Reversal Of Mr. Spaziano’s Death Sent-
ence

The offense in this case was alleged to have occurred be-
tween August 4 and August 22, 1973 (R 27). Two years and
some three weeks later, an indictment was sought and re-
turned, on September 12, 1975, charging Mr. Spaziano with
first degree murder (JA 2-3). The three weeks beyond two
years is important because the statute of limitations for nonca-
pital offenses in Florida was two years and there was no
limitation on capital offenses. § 932.465, Fla. Stat. (1973).
Three weeks may seem to be a short period of time, but it made
a great difference in Mr. Spaziano’s trial. The timing of the
indictment posed the question of jurisdiction on the lesser-
included offenses of first degree murder. At the close of the
evidence, Mr. Spaziano was given the choice of either waiving
the applicable statute of limitations with respect to the lesser
included noncapital offenses (attempted first degree murder,
second degree murder, third degree murder and
manslaughter)’ or having the jury instructed only as to first
degree murder (T 751-755). Mr. Spaziano declined the offer to

* Florida law is settled that the trial court must instruct the jury on
all lesser included offenses. E.g. Brown v. State, 206 So.2d 377, 381
(Fla. 1968). In fact at the time of Mr. Spaziano’s trial this require-
ment applied even if there was no evidence to support the lesser
offenses. Jd. That rule was changed effective October 1, 1981 to
require instructions on lesser offenses only when supported by the
evidence. In re Florida Rules of Criminal Procedure, 403 So.2d 979
(Fla. 1981).

9

waive the statute of limitations.’ As a result, the jury was
given only two options—guilty of first degree murder or
acquittal.‘ The jury had a great deal of difficulty with these two
options. Deliberations lasted more than six hours (T 808-820),
were interrupted by judicial inquiry,’ and were reported as
deadlocked. The jury was then given the “Allen charge” and
only minutes later returned the verdict of guilt (T 820).

In Beck, the Court held that “the death penalty may not be
imposed” where the jury is not permitted to consider a verdict
of guilt of a lesser included non-cspital offense where the
evidence would support such a verdict. 447 U.S. at 627. The
Court’s holding applies equally to Mr. Spaziano’s case. Draw-

In fact, there was a question at the time of Mr. Spaziano’s trial
whether a waiver of the statute of limitations would even be effec-
tive. E.g. Tucker v. State, 417 So.2d 1006, 1011 (Fla. 3d DCA 1982)
(“{T]he issue of whether a defendant may waive the statute of limita-
tions for purposes of conviction appears never to have been directly
addressed in Florida, . . .”). The question arises because Florida
considers the limitations to be a “jurisdictional” bar, and hence need
not be pleaded in the trial court by the defendant and can be raised at
any time. E.g. Mead v. State, 101 So.2d 373 (Fla. 1958): State v.
King, 282 So.2d 162 (Fla. 1973); Tucker v. State, 417 So.2d at 1012:
id. at 1014 (Pearson, J., concurring specially).

‘ As the jury was instructed: “There are only two verdict alterna-
tives in this case. The alternatives are, not guilty, or, in the alterna-
tive, guilty of murder in the first degree as set out in the indictment.”
(T 805-806).

* As the hour grew late, the court inquired of the foreman: “if given
more time is there a reasonable probability that the jury could agree
cn a verdict, it being the jury’s function to do so.” (T 815) About two
hours later, the court called the jury out to inquire again whether it
would be able to reach a verdict (T 817). The foreman replied: “At this
point, Your Honor, I don’t believe so.” (T 817). The judge thea gave
the “jury deadlock” or “Allen” charge to the jury over defense
objection.

* Allen v. United States, 164 U.S. 492 (1896).

10

ing upon its reasoning in Keeble v. United States, 412 U.S. 205
(1973), the Court reaffirmed the principle that “providing the
jury with the ‘third option’ of convicting on a lesser included
offense ensures that the jury will accord the full benefit of the
reasonable-doubt standard.” 447 U.S. at 635. This is so for
while a jury should, “as a theoretical matter,” return a verdict
of acquittal where the prosecution has not established every
element of the offense charged, the lack of lesser-included
offense instructions creates the “substantial risk that the
jury’s practice will diverge from theory.” 447 U.S. at 635
(quoting Keeble, 412 U.S. at 212). Theory diverges from prac-
tice because

where one of the elements of the offense charged remains
in doubt, but the defendant is plainly aly of some
offense, the jury is likely to resolve its doubts in favor of
conviction.

Id. Thus, Keeble heid that an instruction on the lesser included
offense was a critical procedural right that could not be denied
to a federal criminal defendant. And Beck extended the Keeble
reasoning to a state capital case and found that the lack of the
“third option” so threatened the accuracy of the factfinding
process that it could not be tolerated under the Constitution.
The “procedural safeguard” of the instruction on lesser in-
cluded offenses is especially important in a capital case for
“death is a different kind of punishment”, Gardner v. Florida,
430 U.S. 349, 357 (1977), and entails a “corresponding differ-
ence in the need for reliability.” Woodson v. North Carolina,
428 U.S. 280, 305 (1976) (plurality opinion). Echoing the
reasoning of Keeble, Beck found the lesser included option to be
a constitutional imperative in a capital case:

[w]hen the evidence unquestionably establishes that the
defendant is guilty of a serious, violent offense—but
leaves some doubt with res to an element that would
justify a conviction of a capital offense—the failure to give
the jury the “third option” of convicting on a lesser in-

1]

cluded offense would seem inevitably to enhance the risk
of an unwarranted conviction.

Such a risk cannot be tolerated in a case in which the
defendant’s life is at stake.

Beck, 447 U.S. at 637.

“In the final analysis” precluding a jury’s consideration of
the third option “interjects irrelevant considerations into the
factfinding process, diverting the jury’s attention from the
central issue of whether the State has satisfied its burden of
proving beyond a reasonable doubt that the defendant is guilty
of a capital crime.” These irrelevant considerations “introduce
a level of uncertainty and unreliability into the factfinding
process that cannot be tolerated in a capital case.” Jd. at
642-643.

The risk of an unwarranted conviction of a capital offense
came to pass in the present case in a manner that falls squarely
within the four corners of Beck. Mr. Spaziano’s jury, like Mr.
Beck’s, was faced with the predicament of having but two
options in its guilt determination. That this predicament
actually interjected itself into the jury’s deliberation is shown
by the difficulty the jury had in reaching a verdict, a verdict
returned only after the “dynamite charge.” Mr. Spaziano’s
jury was faced with what it was told was a very brutal offense,
but with only flimsy evidence to support guilt of the capital
offense. There was no direct evidence of the offense, no evi-
dence as to the cause of death, the manner and means of death,
or a motive for the death. In short, there was virtually no
evidence as ta the degree of homicide.

The state » case rested exclusively’ upon the testimony of
16-year-old Tony Dilisio, who had no personal knowledge of the

’ As the prosecutor told the trial court during a motion to preclude
Dilisio’s testimony: “If we can’t get in the testimony of Tony Dilisio,
we'd absolutely have no case here whatsoever... . So either we're
going to have it through Tony, or we're not going to have it at all.” (T
614)

12
offense itself and related only what Mr. Spaziano purportedly
told him and showed him at the scene weeks later, though he
said he had never believed Mr. Spaziano (T 627-628). More-
over, Dilisio’s credibility was placed in substantial doubt by a
number of factors, including his motives to testify falsely, his
tendency to “exaggerate” the truth, his admitted extensive
drug use during relevant times, and the fact that he did not
report what he had supposedly seen and only “recalled” the
subject of his testimony after undergoing police hypnosis. Ac-
cordingly, there was no direct evidence of a premeditated
homicide*—if, how, when, why it might have occurred—
leaving just the indirect supposition evidence that was itself
subject to considerable question.

Since there was no evidence as to the manner, means or
motive of the death, there could certainly be a question of
whether the state had met its burden of proving the intent
required for the capital offense. For example, even taking the
state’s evidence at face value, the jury could have believed that
the state had shown that Mr. Spaziano was somehow involved
in or knew about the homicide and was thus culpable in that
offense, but not believed that the state had met its burden of
proving the essential element of premeditation.’ This element
could be in further doubt if the jury rejected even part of
Dilisio’s story. With evidence on the essential element of

* Though in Florida a charge of first degree murder includes both
premeditated and felony murder, Knight v. State, 338 So.2d 201 (Fla.
1976), Mr. Spaziano’s jury was instructed only on the theory of
premeditation (T 794-96).

*Evidence of premeditation cannot be left to “guesswork and
speculation.” Weaver v. State, 220 So.2d 53, 59 (Fla. 2d DCA 1969).
“(IJn order to constitute murder in the first degree it must be estab-
lished beyond every reasonable doubt, not only that the accused
committed an act which resulted in the death of another human
being, but it must be proven that before the commission of the act
which results in death that the accused had formed in his mind a
distinct and definite purpose to take the life of another human being

13

premeditation so lacking, a verdict of second degree murder
(“evincing a depraved mind regardless of human life,” § 782.04
(2), Fla. Stat. (1973)] would certainly have been reasonable.
See, e.g., Hall v. State, 403 So.2d 1319 (Fla. 1981) (evidence
showing that the defendant was involved in the killing, but not
showing how the killing was actually accomplished, was in-
sufficient to establish premeditation, but did support second
degree murder. )"° The evidence certainly could have supported
a conviction for a lesser included offense. But the jury was not
given that option.

More than in Beck, therefore, this case presents solid indica-
tions that the evil predicted by Beck actually occurred here.
Mr. Spaziano’s jury had obvious difficulty reaching a verdict.
Its deliberations were interrupted several times by judicial
inquiry—one time the judge reminded the jury that it was its
“function to return a verdict” (T 815)."' As the deliberations

drew on, the judge called the jury out to ask whether it would
be able to reach a verdict (the jury had not at that point
reported a deadlock). The foreman said: “At this point, I don’t

and deliberated or meditated upon such purpose for a sufficient
length of time to be conscious of a well defined purpose and intention
to kill another human being, and if then in the execution of such
purpose and design he kills another, his act is murder in the first
degree.” Snipes v. State, 154 Fla. 262, 17 So.2d 93, 97 (1944).

It is also reasonable that a verdict of manslaughter could he
returned under the residual aspect of that offense which is defined as:
“The iilling of a human being by the act, procurement or culpable
negligence of another, in cases where such killing shall not be justifi-
able or excusable homicide nor murder, . . .” (emphasis supplied)
Fla.Stat. § 782.07 (1973); cf., Snipes v. State, supra (where the court
found insufficient evidence of premeditation and reduced the verdict
to manslaughter, though it eventually decided to order a new trial
because of “prejudice.”).

" See Jenkins v. United States, 380 U.S. 445 (1965) (Finding coer-
cive a judge’s statement to the jury that “You have got to reach a
decision in this case.”)

14

believe so.” (T 817). The judge responded by giving (over
objection) the “Allen” or “dynamite” charge. Having been
“dynamited,” the jury returned a verdict within minutes (T
820).

The reliability of the guilt determination was plainly
threatened further by the Allen charge. The jury was given
only two options and was having great difficulty with its im-
possible dilemma. Poised in this impossible situation, how-
ever, the jury was then further pressured by the “Allen”
charge.” “While it is, of course, impossible to gauge what part
[the Allen charge] played in the jury’s action of returning a
verdict” within minutes after the charge, “this swift resolution
of the issues in the face of positive indications of hopeless
deadlock, at the very least give rise to serious questions in this
regard.” United States v. United States Gypsum Co., 438 U.S.
422, 462 (1978). There can be little doubt in this case of the
“substantial risk that the jury’s practice . . . diverge[{d] from
theory.” Keeble, 412 U.S. at 212.

That risk is made even more evident by the jury’s sentencing
verdict. In contrast to the difficulty the jury had in reaching its
guilty verdict, it reached an almost immediate sentencing ver-
dict of life imprisonment. This verdict suggests strongly that
the jury was attempting to use the life verdict as its only
available safeguard against the overall weakness of the evi-
dence. If it had believed the state’s evidence, the jury would

2 The “Allen charge”, though approved by the Court, has itself
been subject to considerable criticism as threatening the reliability
and independence of the jury’s verdict. See, e.g., United States v.
Bailey, 468 F.2d 652 (5th Cir. 1972), aff'd en banc, 480 F.2d 518 (5th
Cir. 1973); United States v. Fioravanti, 412 F.2d 407 (3d Cir. 1969).
Because of the threats to reliability posed by the “Allen charge” the
modern trend is away from its use. See generally Annot., 97 A.L.R.
3d 96 (1980); Annot., 44 A.L.R. Fed. 468 (1979); Marcus, Allen
Instruction in Criminal Cases: Is the Dynamite Charge About to be
Permanently Defused? 43 Mo.L.Rev. 613 (1978); ABA Standards
Relating to Trial by Jury, § 5.4 (1968).

1d

have believed that Mr. Spaziano had committed a brutal
crime." The life verdict thus suggests strongly that the jury
was concerned over the result of its two-option dilemma, and
sought a “third option” through its sentencing verdict.

Accordingly, the record plainly shows that the threats to the
reliability of the guilt determination were real. As determined
by Beck, “the death penalty may not be imposed under these
circumstances.”

B. The Intolerable Uncertainty And Unreliability Is Not Ex-
cused By The Statute Of Limitations

As discussed in the preceeding section, the record reveals a
constitutionally impermissible risk of an unwarranted convic-
tion through the withholding from the jury of the third option
of convicting Mr. Spaziano of a lesser included offense. The
Supreme Court of Florida, however, sought to excuse that
unconstitut onality and distinguish Beck, reasoning that
rather than an “express statutory prohibition” as in Beck, the
preclusion of the third option in this case arose from a separate
statute of limitations. This difference, the Florida court be-
lieved, rendered constitutional his otherwise unconstitutional
death sentence. (JA 22)

The Florida Supreme Court’s attempted distinction of Beck
must fail because the results are identical: here as in Beck there
are serious risks of unreliability. Under the Florida court’s
reasoning, Mr. Spaziano could have had a constitutionally fair
trial—without the intolerable risk of unreliability—if only the

'’ As the Florida Supreme Court observed in reviewing a pre-
Furman capital case where the jury had recommended mercy: “The
deceased was killed by some assassin in cold blood, and if this defend-
ant was in fact guilty of it there were no circumstances that called for
or justified an extension of mercy, unless it was incorporated into the
verdict as a safeguard against the prickings of the jurors’ con-
sciences. . . .” Nims v. State, 70 Fla. 530, 70 So. 565, 566 (1915);
accord Davis v. State, 90 So.2d 629, 632 (Fla. 1956).

16

state had filed the indictment one month earlier. Since, how-
ever, the state filed the indictment three weeks after the
statute of limitations had run as to the lesser offenses, the
resulting two-option unreliability became tolerable. Such
reasoning is unsatisfactory. The harm found in Beck is the
harm of a distorted factfinding process at a time when the
defendant’s life is at stake. The factfinding does not become
less distorted simply because the source of the denial of the
third option is different.

The State of Florida certainly has an interest in administer-
ing its own statute of limitations. It is, however, purely a state
policy decision which the State is free to change as it wishes. In
fact the statute of limitations has now been amended in a
manner that if applicable to Mr. Spaziano’s case would not bar
the lesser offenses." Nevertheless, at the time of Mr. Spa-
ziano’s trial the State had chosen a two-year limitations period
for all noncapital offenses. It had thus chosen, as state policy,
that prosecution of all second degree murders, third degree
murders, or manslaughters was barred if not undertaken with-
in two years. Thus, if Mr. Spaziano were to receive a new trial
with a jury properly instructed upon the lesser included
offenses and the jury returned a verdict for a lesser offense, a
legal determination by the judge that the statute of limitations
barred adjudication would result not from Beck, but from che
State’s own policy choice. Mr. Spaziano would simply receive
the benefit given by the statute of limitations to all others

“Section 932.465, Florida Statutes (1973) was substantially
amended and renumbered as Fila. Stat. § 775.15 (Supp. 1974), effec-
tive October 1, 1975. As amended there is no limitation on capital and
life felonies, a four-year limitation on first degree felonies, and three
years for all other felonies. Thus, if it had been applicable to Mr.
Spaziano’s trial, the statute would not have barred the lesser in-
cluded offenses. It was, however, inapplicable because under Florida
law it is the statute of limitations in effect at the time of offense that
governs. E.g. State ex rel Mauncy v. Wadsworth, 293 So.2d 345 (Fla.
1974).

17

guilty ofa like offense. As the Florida Supreme Court held, ina
somewhat different context, with regard to the statute of
limitations:

A jury has said this man is not guilty of murder in the first
degree and, therefore, he is entitled to every benefit to
which any one else can be entitled who is also only guilty of
murder in the second degree. ... [The State cannot]
deprive him of the benefit of the statute of limitations
while others guilty of the like offense may have tk 2 benefit
of the statute of limitations. . .

Mitcheli v. State, 157 Fla. 121, 25 So.2d 73, 75 (1946). This
reasoning also answers the question, should it be posed, as to
why the defendant should not be forced to waive the statute of
limitations in order to receive a fair trial in accord with Beck.
As can be seen from Mitchell, that statute of limitations is
considered a “substantive right” in Florida. See also Lane v.
State, 337 So.2d 976 (Fla. 1976); State v. King, 282 So.2d 162
(Fla. 1973). And, a defendant cannot be required to waive a
substantive right in order to receive a constitutionally fair
trial. Thus, because a court may not have jurisdiction to adjudi-
cate a defendant guilty of the lesser included offense is not of
constitutional import. In fact, the Court’s decision in Keeble
did not depend upon whether the trial court had jurisdiction to
adjudicate and sentence on the lesser offense. The question of
jurisdiction on that lesser offense was not decided in Keeble
and thus was not a part of its holding. See United States v.
John, 437 U.S. 634, 636 n. 3 (1978); Felicia v. United States,
495 F.2d 353 (8th Cir. 1974).

The question as to whether a trial court may adjudicate a
defendant convicted of a lesser included offense, is a separate
legal decision that just be made by the trial court applying a

'’ The Florida legislature had passed an amendment to the statute
of limitations that excepted lesser included offenses from the limita-
tions bar when a capital offense was charged. The Florida Supreme
Court struck that statute as violative of equal protection on the
reasoning quoted in the text.

1»

separate analysis of state law. A number of legal questions can
arise in applying a statute of limitations which are quite apart
from the determination of the offense.'* These decisions must
be made by the judge and a judge cannot avoid those decisions
simply by preventing a verdict from being rendered on a lesser
included offense. As expressed in dissent by Justice Boyd in
Holloway v. State, 379 So.2d 953 (Fla. 1980):

The accused has a right to have the jury instructed on all
less serious included offenses regardless of the expiration
of the limitations period on the lesser offenses. The pur-
pose of these instructions is to guide the jury in reaching
the proper verdict and the running of the statute of limita-
tions should have no effect.

The function of the jury, in reaching the proper verdict, is
to make factual et not legal determinations. If the jury
finds that the conduct of the accused fits under a certain
category of crime, it so informs the court in its verdict. The
judge then decides the legal question of whether upon the
verdict rendered an adjudication of guilt is proper. If the
verdict finds the accused guilty of an offense barred by the
statute of limitations, the court should acquit the defend-
ant.

Id. at 954 (Boyd, J., dissenting from the dismissal of cer-
tiorari). These observations were echoed by Justice Blackmun
in dissent from denial of certiorari in Holloway: “Whether the
trial court properly may enter a judgment of guilt should the
jury convict for a lesser included offense seems to me a sepa-
rate legal matter with which the factfinder need have no con-
cern.” Holloway v. Florida, 449 U.S. 905, 908 (1980) (Black-
mun, J., dissenting). See also Spaziano v. Florida, 454 U.S.
—__., ——, 102 §.Ct. 581 (1981) (Marshall, J., dissenting).

“For example, it must be determined whether the statute of
limitations was tolled by some state action, State v. Hickman, 189
So.2d 254 (Fla. 2d DCA 1966), when the statute began to run in the
case, State v. King, supra, the sufficiency of the allegations in the
indictment, Mitchell v. State, 101 So.2d 373 (Fla. 1968), and the
sufficiency of the evidence te show commission within the limitations
period, Bail v. State, 204 So.2d 523 (Fla. 3d DCA 1967).

19

Moreover, establishing a different rule for a statute of
limitations bar than for an express statutory bar, would create
a painfully obvious opportunity for prosecutorial abuse. The
mandate of Beck could be avoided by simply waiting to file an
indictment until after the limitations period had run, thereby
“mak{ing] it easier to convict” the defendant, Keeble, 412 U.S.
at 212. It would permit a prosecutor to determine whether a
defendant would receive a constitutionally reliable trial, simp-
ly by the timing of the filing of an indictment. Surely such a
result cannot be logically defended.

Rather, a defendant charged with first degree murder
should be entitled to a constitutionally reliable factfinding re-
gardless of whether the statute of limitations has run as to the
lesser included offense. A jury instructed on lesser included
offenses that returns a verdict for such an offense would be
doing precisely what a jury is supposed to do, determining if
and what offense has been proven by State. A judge who
determines later that adjudication is barred by the statute of
limitations would be doing precisely what he should do, resolv-
ing legal questions. And if adjudication is barred, the defend-
ant would receive precisely what was intended by the state in
its statute of limitations. In short, the system would function
precisely as it should. Such a procedure accommodates the
interest of the defendant and society in assuring that the
factfinding is accurate, and enforces the state policy with re-
gard to its statute of limitations.

Accordingly, the record in this case stands as stark witness
to the evil-come-true of Beck. The lower court decision must be
reversed.

20

II

A TRIAL JUDGE’S OVERRIDE OF A JURY'S FACTUALLY
BASED DECISION AGAINST THE DEATH PENALTY
MUST, IN ALL CASES, VIOLATE THE FIFTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS

A. The Jury Override Should Be Measured By Th« Evolving
Standards Cor erning The Imposition Of The Death
Penalty

This case presents a narrow issue. The constitutionality of
Florida’s overall death penalty system is not in dispute here;
relatively few death sentences in Florida or elsewhere are
imposed as a result of an override of a jury life verdict.”
Petitioner will demonstrate that, if a jury takes part in capital
sentencing at all, its life verdict must be binding. To do so, we
will discuss the reasons for involving a jury in the capital
sentencing decision. Regardless of whether jury sentencing is
required for capital sentencing, the question of jury in-
violability is closely interwoven with the question of jury sen-
tencing; many of the reasons for requiring a jury sentence in
capital cases also counsel that a jury’s verdict for life must be
final.

Petitioner acknowledges that the Court has suggested that
the power ofa Florida judge to override ajury’s life recommen-
dation is constitutional. Proffitt v. Florida, 428 U.S. 242, 252
(1976); Dobbert v. Florida, 432 U.S. 282, 294-96 (1980); Barc-
lay v. Florida, __— U.S. ——, 103 S.Ct. 3418 (1983); id. at
3426-27 (Stevens and Powell, J.J., coneurring). But the issue
was not presented or briefed in any of those cases and the

‘7 Sew notes 24, 25, and 26, and accompanying text, infra.

‘8 In none of these cases was the constitutionality of the override
procedure at issue. In Proffitt, both judge and jury recommended
death, 428 U.S. at 246; the sole issue was whether the imposition of
death ini any case under the Florida statute violated the Constitution.
Id. at 245; see Gregg v. Georgia, 428 U.S. 153, 202 n. 51 (1976) (noting
the “limited grant of certiorari” in the five 1976 cases). In Dobdbdert,

21

Court’s observations on the issue “though weighty and re-
spectable, are nevertheless, dicta.” Duncan v. Louisiana, 391
U.S. 145, 155 (1968). As made clear in Duncan, Williams v.
Florida, 399 U.S. 78, 91, 93 (1970), and Ballew v. Georgia, 435
U.S. 223, 231 (1978) when the scope of the right to a jury is
concerned dicta will not do."

The Court’s death penalty jurisprudence has developed in a
dynamic manner because of the “obligation to re-examine
capital sentencing procedures against evolving standards of
procedural fairness in a civilized society.” Gardner v. Florida,
430 U.S. 349, 358 (1977). In evaluating the constitutionality of
a procedure for imposing the death penalty, the Court applies a
two-part test derived from the proposition that the “{eighth]
amendment must draw its meaning from the evolving stand-
ards of decency that mark the progress of a maturing society.”
Gregg v. Georgia, 428 U.S. 153, 173 (1976), (quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958)). First, the Court looks to

contemporary values and public attitudes as manifested by
objective indicia such as historical usage and legislative enact-

the grant of certiorari was also limited and did not include this issue,
432 U.S. at 284; the Court held only that, given the presumed
protections of Tedder, “defendants are not significantly dis-
advantaged vis-a-vis . . . the old statute” for purposes of the ex post
facto clause. 432 U.S. at 296. In reaching the issue of the judge’s
consideration of nonstatutory factors in Barclay, the Court pre-
sumed but did not discuss the constitutionality of the override proce-
dure. _. U.§ at —__, 108 S.Ct. at 3420.

'8 It is settled that the Court does not resolve issues not raised on
certiorari. Mazer v. Stein, 347 U.S. 201, 208 n.6 (1954). This rule
applies with special force in the context of the jury issue. “Perhaps
because the right to jury trial was not directly at stake, the Court’s
remarks. . . took no note of past cr current developments regarding
jury trials, did not consider its purposes and functions, [and] at-
tempted no inquiry into how well it was performing its job...”
Duncan, 391 U.S. at 155; accord Ballew, 435 U.S. at 231; Williams,
399 U.S. at 91, 93.

22

ments. Second, it makes an independent judicial assessment of
the constitutionality of the practice in question. A challenged
procedure must pass both parts of the Eighth Amendment test
to be constitutional. The Court has used this two-step analysis
to evaluate the constitutionality of the death penalty itself,
Gregg v. Georgia, supra; of capital punishment for rape, Coker
v. Georgia, 433 U.S. 584 (1977); of the death penalty for those
who only aid and abet murder, Enmund v. Florida, ___ U.S.
——, 102 S.Ct. 3368 (1982); of mandatory death penalties,
Woodson v. North Carolina, 428 U.S. 280 (1976); and of capital
laws excluding lesser included offense charges. Beck v. Ala-
bama, supra.

This approach under the eighth amendment is remarkably
similar to the analysis applied in Duncan v. Louisiana, in,
evaluating whether the sixth amendment right to jury trial
should be made binding on the states. The Court in Duncan
first examined the history and prevailing practice of trial by
jury in criminal cases. 391 U.S. at 151-154. See also Baldwin v.
New York, 399 U.S. 66, 70-72 (1970). After reviewing such
objective indicia, the Court then considered the “purposes and
functions” of trial by jury and evaluated “how well [the jury]
was performing its job.” 391 U.S. at 155.

In determining whether the jury override procedure is con-
stitutionally permissible, then, the Court must consider how
that procedure has functioned in the actual context of the
modern capital sentencing system. For

it might be said that the patton in question is not
necessarily eo to fairness in every criminal sys-

tem inat might be imagined but is fundamental in the
con?ex . of the criminal processes maintained by the Amer-
iean cae

whether the Beetes cat uapese approached in this way the question
can impose [capital] p cones with-
see a jury trial ao a/s rent from the

dite 391 seaa at pen n. M4.

23

The required analyses under the Eighth Amendment, the
Sixth Amendment, and the Due Process Clause coalesce in this
case. As we show below, they indicate that a judge may not
override a jury’s life sentence.

B. The Objective Indicia Are That Contemporary Values
Hold A Jury’s Life Sentence Inviolate

The indicia of the nation’s judgment concerning who should
decide who dies include “history and traditional usage, legisla-
tive enactments, and jury determinations.” Woodson v. North
Carolina, 428 U.S. at 289. Together, they dramatically compel
two conclusions: (1) that juries, not judges, are best equipped
to make reliable death decisions and (2) that a jury’s decision
for life is inviolate.

Since the mid-nineteenth century, American legislatures
have decided with near unanimity that no person should be
sentenced to die without the consent of his peers. Prior to
Furman v. Georgia, “except for ur States that entirely abo-
lished capital punishment in ( ddle of the last century,
every American jurisdiction has at some time authorized jury
sentencing in capital vases.” McGautha v. California, 402 U.S.
183, 200 n. 11 (1971). The Woodson plurality traced this histo-

ry:

The inadequacy of distinguishing between murderers
solely on the basis of legislative criteria narrowing the
definition of the capital offense led the States to grant
juries sentencing discretion in capital cases. Tennessee in
1838, followed by Alabama in 1841, and Louisiana in 1846,
were the first states to abandon mandatory death sent-
ences in favor of discretionary death penalty statutes.”

» It is noteworthy that Tennessee instituted a binding life recom-
mendation by the jury in 1838, made it nonbinding in 1858, and finally
returned in 1919 to the original policy of finality which it maintains
today (see Appendix C). See also Gohlston v. State, 43 Tenn. 126 (16
Thompson), 223 =. W. 839 (1920) (noting return to binding jury mercy
power).

24

This flexibility remedied the harshness of mandatory stat-
utes by permitting the jury to respond to mitigating fac-
tors by withholding the death penalty. . . . By 1973, all of
these remaining jurisdictions had replaced their automa-
tic death penalty statutes with discretionary jury sentenc-
ing.

428 U.S. at 291-92. See also Lockett v. Ohio, 438 U.S. 586,

598-99 (1978); Bowers, Executions In America 7-9 (1974).

Thus, the majority of legislatures have made juries rather
than judges the sentencer in capital cases. A much larger
majority has determined that, when there is a jury, its decision
for life is final. Indeed, the practice of overriding a jury’s
verdict in favor of life is contrary to the overwhelming national
practice at least since 1948. At no time since 1948 have more
than three American jurisdictions authorized the rejection of a
jury’s determination for mercy in a capital case.

Out of 42 jurisdictions (including the United States) with
discretionary capital punishment for murder in 1948,” only
New York, Delaware and Utah sanctioned the practice of jury
override. By the time of Furman in 1972, only Delaware and
Utah out of 41 capital murder jurisdictions permitted jury
overrides (including the United States and the District of
Columbia); New York made a mercy decision by either the
judge or the jury binding in 1963.2

Prior to Furman death sentences after jury mercy recom-
mendations were only rarely imposed or executed. There were

*! See Andres v. United States, 383 U.S. 740, 767 (1948) (Frankfur-
ter, J., concurring). Inadvertently, Justice Frankfurter listed New
York as binding and New Mexico as nonbinding, but see New Mexico
Acts of 1989, Ch. 49 (jury recommendation of life imprisonment in
capital case binding).

= See Witherspoon v. Illinois, 391 U.S. 510, 525-527 and nn. 2-8
(1968) (Douglas, J., concurring). Both Utah and Delaware now make
life imprisonment automatic unless the jury unanimously agrees on
death. See Appendix C.

™ See People v. Fitzpatrick, 308 N.Y.S.2d 18, 22 (1970).

25

no executions in Delaware after 1949. All seven Utah execu-
tions between 1948 and 1972 involved cases where the jury
recommended death; in two other cases death sentences were
affirmed by the Utah Supreme Court after jury life recommen-
dations, but the defendants received executive clemency (see
Appendix D for Utah cases). Commentators have also ob-
served that under the pre-1963 New York law, trial judges
almost “invariably” followed jury recommendations of mercy.
See Togman, The Two-Trial System in Capital Cases, 39
N.Y.U.L. Rev. 50, 75 n. 171 (1964) (citing New York District
Attorney’s Association, Memorandum and Draft Bili (Octo-
ber 17, 1960)). Thus, at least since 1948, death sentences after
jury decisions for life have been rare in legislative practice and
rarer yet in application.

Of the 38 jurisdictions that have chosen to retain the death
penalty since Furman, 30 require a penalty jury’s consent for
death. In five of the other states, the judge alone decides
penalty. None of the jurisdictions that permitted the override
of a jury life determination in 1948 have retained such a prac-
tice. New York ended it in 1963, and Utah and Delaware now
provide for a life sentence unless all 12 jurors agree on death.
In only three states does the jury make a non-binding recom-
mendation: only Florida, Indiana and Alabama permit death
sentences after jury decisions for life (see Appendix C). As of
February 1984, only two death sentences after jury life
determinations have been imposed under the Indiana statute,
one of which has been affirmed.™ Four have been imposed
under the Alabama statute, but none have yet been affirmed.”

* The Indiana Supreme Court affirmed the jury override in Schiro
v. State, 451 N.E.2d 1047 (Ind. 1983). The second case is currently
awaiting briefing in that court, Jay Thompson v. State, Indiana
Supreme Court No. 882-S303 (Harrison County No. 81-S62, sent-
enced on March 18, 1982).

* The case of Murry v. State was affirmed on March 29, 1983 by the
Alabama Court of Criminal Appeals (3 Div. No. 604), but is pending
decision in the Alabama Supreme Court (No. 82-743). That court
requested further briefing after oral argument in Murry on the

26

With but one exception, therefore, all of the affirmances of
death sentences imposed over a jury’s life verdict since Fur-
man have been in Florida.”

The Florida practice is itself an historical anomaly. The jury
recommendation of mercy in a capital case was final from 1872
to 1972; as explained below, the present override procedure is
the result of confusion over Furman’s requirements and not of
dissatisfaction with jury discretion for mercy.”

Over the past 30 years, there has been a consistent national
judgment of near uniform scope that a jury determination of
life in a capital case must be absolutely final. Twenty-one
states now make life imprisonment automatic if even one juror
fails to agree for death (see Appendix C); some of these states
(e.g. Georgia, Louisiana, Virginia) specifically authorize the
jury to impose life regardless of the weight of the aggravating
circumstances. By requiring only a simple majority, and by
instructing the jury to return a verdict for death whenever it
finds that statutory aggravating circumstances outweigh
mitigating circumstances, the Florida practice depreciates the
jury’s role far more than the national practice has generally
found necessary or acceptable.

The degree to which states have chosen jury sentencing and
jury inviolability is dramatic. The timing also is significant.
“only after Furman v. Georgia did eight states opt for judge
sentencing. Notably, it was also after Furman that ten states

question of whether the override of a jury’s life verdict violates the
state constitution. The case of Lindsey v. State, was affirmed by the
Court of Criminal Appeals on November 1, 1983 (1 Div. No. 483) and
is awaiting briefing in the supreme court. The remaining two cases
are pending in the Court of Criminal Appeals: Neeley v. State, 7 Div.
No. 145; Jones v. State, 1 Div. No. 377.

* There have been 83 overrides in Florida. The Florida Supreme
Court has affirmed 20 of these death sentences, but of the 20 only 13
remain on Death Row. See Appendix B.

™ See § D(1), infra.

27

adopted mandatory death laws. The Woodson plurality did not
consider this development an indication of contemporary
standards, attributing it instead to an erroneous assumption
by those states that mandatory death laws were the only way
to comply with Furman’s ‘multi-opinioned decision.’ The
enactment of judge sentencing after Furman should be viewed
the same way, especially since all eight states choosing it had
for decades used juries in sentencing capital defendants.” Gil-
lers, Deciding Who Dies, 129 U. Pa.L. Rev. 1, 43-44 (1980).
The same is true for the jury override.

Evolving contemporary standards have resulted in the re-
moval of the “onus of inflicting capital punishment” from the
trial judge and entrusted the life or death decision to the
common sense judgment of the jury. United States v. Jackson,
390 U.S. 570, 576 n. 12 (1968). This involvement of the jury in
capital sentencing reflects the “reluctance to entrust plenary
power over the life . . . of the citizen to one judge or a group of
judges ...,” Duncan v. Louisiana, 391 U.S. at 156, and
evinces a recognition that capital sentencing “places the real
direction of society in the hands of the governed. . . and not in
. . . the government.” Powell, Jury Trial ef Crimes, 23 Wash.
& Lee L. Rev. 1, 5 (1966). Like the lesser included offense
charge, “while [this Court has] never held that a defendant is
entitled to [the practice] as a matter of due process, the virtual-
ly universal acceptance of the [practice] in both state and
federal courts establishes the value to the defendant of this
procedural safeguard.” Beck v. Alabama, 447 U.S. at 638.

C. Independent Judicial Judgment Confirms The Unaccepta-
bility Of The Jury Override

As noted in Coker v. Georgia, “the attitude of state legisla-
tures and sentencing juries do not wholly determine this con-
troversy, for the Constitution contemplates that in the end our
own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amend-
ment.” 433 U.S. at 598; accord Enmund v. Florida, __ U.S.
at __, 102 S.Ct. at 3376; Gregg v. Georgia, 428 U.S. at 183.

28

Court’s independent judgment should confirm the nearly uni-
versal legislative rejection of the jury override in death cases
for several reasons.

The legislative shift from judge to jury sentencing, dis-
cussed above, occurred in response to two factors. The first
was jury nullification. When death was mandatory for speci-
fied offenses, “jurors on occasion took the law into their own
hands in cases which were willful, deliberate and premeditated
in any view of that phrase, but which nevertheless were clearly
inappropriate for the death penalty. In such cases they simply
refused to convict of the capital offense.” McGautha v. Califor-
nia, 402 U.S. at 200. See also Woodson v. North Carolina, 428
U.S. at 280-92. But there was another, more fundamental
reason for the shift: state legislatures recognized that the
nature of the death decision is different in quality from a
sentence of a term of years and that this difference requires

jury sentencing.”

** There are several indications in the patterns of legislative
determination that the life or death decision is fundamentally a jury
decision. First, if the penalty jury is unable to agree on sentence, all
but one of the thirty states that use juries require a life sentence. If
there were not a strong interest in having the jury make death
sentence decisions, one would expect more lawmakers to have given
the power to the court following jury disagreement. Second, of the
twenty-nine states that require a jury to agree before death may be
imposed, twenty-five explicitly require unanimity. Statutes in the
remaining four are not explicit, but none permit a nonunanimous jury
to impose death. Third, this pattern occurs despite Witherspoon’s
holding that scrupled jurors may not be challenged for cause from the
penalty panel and despite the consequent reduction in a state’s ability
to control the composition of the sentencing jury. After Witherspoon,
there was no movement to reduce the unanimity requirement, as a
dissenter had suggested, or to shift the penalty decision to judges.
Fourth, juries have been retained even though it is no longer‘possible
for a state to limit by operation of law the evidence the sentencer
hears in mitigation of penalty. See Gillers, supra, at 16-19. See also
appendix C.

29

Not only is death irrevocable, but the motives for its imposi-
tion differ from punishments of even life imprisonment. Reha-
bilitation, an important goal in noncapital sentencing, see Wil-
liams v. New York, 337 U.S. 241,248 (1949), is irrelevant here.
Incapacitation has never been embraced by this Court as an
objective of the death penalty, perhaps because imprisonment
serves society’s interest in removing potentially dangerous
persons from our midst. See Gillers, supra, at 47. Deterrence is
a matter of great importance to legislatures debating the death
penalty, but not to particular sentencers deliberating whether
the penalty should be imposed in a given case.” Jd. at 49-53.
Retribution stands as the primary motive impelling the sen-
tencer’s judgment that a particular defendant should die.

In Gregg v. Georgia, the Court reasoned that “capital
punishment is an expression of society’s outrage at particularly
offensive conduct” and that “the decision that capital punish-
ment may be the appropriate sanction in extreme cases is an
expression of the community’s belief that certain crimes are
themselves so grievous an affront to humanity that the only
adequate response may be the penalty of death.” 428 U.S. at
184; see also Furman, 408 U.S. at 308 (Stewart, J., con-
curring); id. at 394-95 (Burger, C.J., dissenting); id. at 452-54
(Powell, J., dissenting). The plurality quoted Lord Justice
Demming’s statement that:

Punishment is the way in which society expresses its
denunciation of wrong doing, and, in order to maintain
respect for law, it is essential that the punishment in-
flicted for grave crimes should adequately reflect the re-
vulsion felt by the great mp ed of citizens for them. It is
a mistake to consider the objects of punishment as being
deterrent or" reformative or preventive and nothing else.
. . . The truth is that some crimes are so outrageous that
society insists on adequate punishment, because the

* To decide to execute a particular defendant on the basis of gener-
al deterrence would violate the Lockett principle that death sent-
ences must be individualized. See Gillers, supra, at 47-53.

30

wrong-doer deserves it, irrespective of whether it is a
deterrent or not.

Gregg, 428 U.S. at 184 n. 30.”

The Court’s recent opinions reflect the centrality of the
retributive justification for capital punishment.

(T]his retributive justification requires that capital
punishment be imposed only on those who are deserving of
society’s ultimate sanction. See Zant v. Stephens, 51
U.S.L.W. 4891, 4895 (1983) (in order to avoid con-
stitutional invalidation, aggravating factors must “rea-
sonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of mur-
der”). Hence, the retributive nature of the capital sent-
ence is reflected in the Supreme Court’s frequently re-
ated concern . . . that the sentencer’s focus be on the
individual offender and his crime. Lockett v. Ohio, 438
U.S. 586, 602-05 (1978); Woodson v. North Carolina, 428
U.S. 280, 304 (1976). . . . The retributive justification for
capital punishment requires that the sentencing decision
turn in large part on considerations of the justice of impos-
ing death on a given offender for 3 given
crime. See Zant v. Stephens, 51 U.S.L.W. at 4895.

Tucker v. Zant, No. 83-8137, Slip op. at 4-5 (11th Cir. Jan. 20,
1984).

But if the decision whether to impose death in a particular
case is essentially a retributive judgment, who is in the best

® See also Stephen, A General View of the Criminal Law of Eng-
land 99 (2d ed. 1890); van den Haag, Punishing Criminals 12-13
(1975); Berns, For Capital Punishment, 154-55 (1979); Packer, The
Limits of the Criminal Sanction 43-44 (1968); Royal Commission on
Capital Punishment, 1949-53, € 52 (1953); Cohen, Reason and Law 50
(1950); Gardner, The Renaissance of Retribution—An Examination
of Doing Justice, 1976 Wisc. L. Rev. 781,798; Greenwalt, “Uncon-
trollable” Actions and the Eighth Amendment: Implications of
Powell v. Texas, 69 Colum.L.Rev. 927, 929 (1969); Goodhart, Eng-
lish Law and the Moral Law 98 (1953); Hart, The Aims of the
Criminal Law, 23 L. & Contemp. Soc. Prob., 401 (1958). Cf. Rich-
mond Newspapers Inc. v. Virginia, 448 U.S. 555, 572 (1980).

31

position to make that judgment, a judge or a jury? And what
should we do when judge and jury disagree?" Resolution of
both inquiries hinges on the relative reliability of the underly-
ing determination that we ask the judge or jury to make.

Because the death decision is a retributive one and because
retribution is an expression of the will of the community, a
greater degree of reliability is achieved if the representatives
of the community are heard from and followed. The kind of

*! The question is not a matter of merely theoretical importance.
The two institutions disagree over death with some frequency. As of
February 14, 1984, Florida trial judges have overridden jury ver-
dicts of life in 83 cases, although only twenty have been affirmed and
five of those were subsequently vacated on other grounds and two
inmates died by suicide. Post-Furman Death Sentences in Florida
(unpublished compilation prepared by Capital Punishment Project,
University of Florida, Department of Sociology, Michael Radelet,
Director) (copy available from counsel for petitioner) (See Appendix
B). Florida’s experience with its override makes clear that “we are
not talking about alternative routes to the same destination.” Gillers,
supra, at 68.

The choice between judge and jury may matter in other ways as
well. Two studies have concluded that Florida juries were less in-
fluenced by a capital defendant’s race and socio-economic status than
were judges:

There was no evidence that characteristics of the defendant
influenced the decisions made by the juries. However, many of
these characteristics (sex, comleatinant status, relationship to
victim, and type of attorney) were related to the final decisions
of the judges. In other words despite the juries’ unbiased recom-
mendations the judges imposed the death penalty in a manner
that was biased against males and the unemployed.
Foley, Florida After the Furman Decision: Discrimination in the
Imposition of the Death Penalty (unpublished paper at the Universi-
ty of North Florida) (copy available from counsel for petitioner)
(quoted in Gillers, supra, at 68 n. 318). See also Radelet & Vandiver,
The Florida Supreme Court & Death Penalty Appeals, 74J. Crin
L. & Criminology 401 (1963).

32

reliability discussed by the Court in cases such as Lockett
refers to the accuracy of the decision to be retributive.

The retributive nature of the death decision suggests that
the jury is best equipped to make that determination and,
when the two institutions disagree, that the errors are being
made by the judges choosing death, not the juries choosing life.
The life override is a classic example of the proposition that
“when juries differ with the result at which the judge would
have arrived, it is usually because they are serving some of the
very purposes for which they were created and for which they
are now employed.” Duncan v. Louisiana, 391 U.S. at 157
(citing Kalven and Zeisel, The American Jury (1966)). The role
of the jury in capital sentencing is to “maintain a link between
contemporary community values and the penal system” that
reflects the “evolving standards of decency that mark the
progress of a maturing society.” Witherspoon v. Illinois, 391

U.S. 510, 519 n. 15 (1968). The jury’s job is to “introduce into
the process a lay judgment, reflecting values generally held in
the community concerning the kinds of potential harms that
justify the state” in seeking a @efendant’s death. Humphrey v.
Cady, 405 U.S. 504, 509 (1972).™ That is a job that a jury can
best perform. Ss

® The role of the jury as conscience of the community is perhaps
most clear in a capital punishment scheme such as Florida’s. The
Florida Supreme Court has acknowledged repeatedly that the jury’s
decision on life or death “represent([s] the judgment of the community
as to whether the death sentence is appropriate” in a given case.
McCampbell v. State, 421 So.2d 1072, 1075 (Fla. 1982); accord
Richardson v. State, 437 So.2d 1091, 1095 (Fla. 1983) (jury is “con-
science of community”); Quince v. State, 414 So.2d 185, 187 (Fla.
1982) (quoting Jones v. State, 332 So.2d 615, 622 (Fla. 1976) (Sund-
berg, J., concurring)) (“jury represents the,conscience and mores of
the community in which the crime was committed”); Odom v. State,
403 So.2d 936, 942 (Fla. 1981) (advisory sentence “represents the
judgment of the community as to whether the death penalty is
appropriate”); McCaskill v. State, 344 So.2d 1276, 1280 (Fla. 1977)
(juries are the “conscience of our communities”).

33

It is important to note that the issue here is not “jury
nullification”, i.e., the jury’s exercise of its “power to bring ina
verdict (of acquittal] in the teeth of both law and facts.” Horn-
ing v. District of Columbia, 254 U.S. 135, 138 (1920) (opinion of
Holmes, J.). By expressing its judgment to spare the life of a
particular defendant, the jury is not “nullifying” the law it has
sworn to uphold; it is performing precisely the function for
which it was empaneled. Its very role within our capital
sentencing scheme is to bespeak community sentiment by ex-
ercising its own judgment. The jury’s response is, by defini-
tion, society's response.

It follows that juries

are more likely to accurately express community values
than are individual state trial judges. This is true because
twelve people are more likely than one person to reflect
public sentiment, because jurors are selected in a manner
enhancing that likelihood and because trial judges collec-
tively do not represent—by race, sex, or economic or
social class—the communities from which they come. The
response of a representative jury of acceptable size is
consequently taken to be the community response. The
jury does not try to determine what the community would
say, but in giving its conclusion, speaks for the communi-
ty. The judge, on the other hand, must either assess the
community's “belief” or “conscience” and impose it or
must impose his own and assume it is the community’s.
Whichever the judge does, the representative jury would
seem to have a substantially better chance of identifying
the community view simply by speaking its mind.

Gillers, supra, at 63-64.

The role of the jury as a reliable “index of contemporary
values,” Gregg v. Georgia, 428 U.S. at 182, is summed up in the
Chief Justice's dissenting opinion in Furman. “Legislatures
prescribe the category of crimes for which the death penalty
should be available, and, acting as the ‘conscience of the com-

34

munity’ juries are entrusted to determine in individual cases
that the ultimate punishment is warranted.” 408 U.S. at 388.*

The Court’s reasoning in applying the Sixth Amendment’s
jury trial right to the states also supports the conclusion that
the jury should make the capital sentencing decision. In con-
cluding the right to jury trial is a fundamental principle of our
system of liberty and justice, the Court reasoned that “a right
to jury trial is granted to criminal defendants in order to
prevent oppression by the Government. ... Providing an
accused with the right to be tried by his peers gave him an
inestimable safeguard against the corrupt or overzealous pros-
ecutor and against the compliant, biased or eccentric judge.”
Duncan, 391 U.S. at 155-57; accord Ballew v. Georgia, 435
U.S. at 229; Williams v. Florida, 399 U.S. at 100. Thus, “ifthe
defendant preferred the commonsense judgment of a jury to
the more tutored but perhaps less sympathetic reaction of the
single judge, he was to have it. Beyond this, the jury trial

*% The retributive decision is crucial at two stages in the legal
process of deciding who dies: an inquiry into retribution plays a role
at the legislative definitional stage, when the issue is what classes of
people may be put to death, and also at the capital sentencing stage,
when the issue is who, of the class delineated by the legislature, will
be put to death. The legislature, in debating whether to have a death
penalty at all, will evaluate the possible retributive value of the
penalty. But the legislature cannot, consistent with Lockett, Wood-
son, and Gregg, make a one-time determination that the death penal-
ty does serve the interest in retribution and thereby bar the sen-
tencer from considering the matter. The capital sentencer, which,
like the legislature, must also be a medium of public attitudes toward
the death penalty, must apply those attitudes in every given case.
The sentencer in a capital case performs the crucial function of
assessing whether that case presents circumstances that, although
not enumerated in the statutes’ list of mitigating factors, neverthe-
less makes death an inappropriate penalty. Lockett’s requirements,
by demanding that a sentencer consider all mitigating circumstances
proffered, thus ensures that an individual death sentence is con-
sistent with evolving standards of decency in our culture.

35

processes in the Federal and State Constitutions reflect a
fundamental decision about the exercise of official power—the
reluctance to entrust plenary powers over the life and liberty
of the citizen to one judge or to a group of judges.” Duncan, 391
U.S. at 157.

The reasoning in Duncan makes clear that the central func-
tion of the jury as a bulwark between the accused and the state
is particularly important in death cases. The “inquiry niust
focus upon the function served by the jury in contemporary
society.” Apodaca v. Oregon, 406 U.S. 404, 411 (1972). “(TJhe
essential feature of a jury obviously lies in the interposition
between the accused and his accuser of the common-sense
judgment of a group of laymen.” Apodaca v. Oregon, 406 U.S.
at 411 (quoting Williams v. Florida, 399 U.S. at 100).

One commentator has persuasively argued that the reason-
ing of Duncan

applies with greater force to the search for reliability in
death sentencing. In death sentencing, unlike traditional
factfinding, there are no advantages to giving the.respon-
sibility to the trial judge. In factfinding, the Court has
acknowledged that a trial Judge may be more “tutored”
than a panel of lay persons, that is, more able to assess
credibility, put lawyers’ ments in perspective and
apply the law to the facts. espite these possible advan-
tages, a defendant is entitled to a jury sentence for the
reasons given in Duncan and Williams. The sole function
of the capital sentencing tribunal is to place the offender
and the offense on the scale of the community desire for
retribution. Adjusting this delicate balance gains nothing
from the trial judge’s expertise in finding facts and apply-
ing law, but would profit from the “common-serise Judg-
ment” and “community participation” of a representative
jury of adequate size.

‘

Duncan also provided “negative” reasons for imposing a
right to jury trial on the states. It told us that judges can
be “compliant, biased or eccentric.” These risks do not
disappear at death sentence roceedings. Furthermore,
Duncan’s reference to the “fear of unchecked power,”

a

36

which has made us “reluctant” to give “a group of judges”
complete control over factfinding where “life and liberty”
are at stake, holds axouedively at capital sentencing,
where life, death and the community wil! must be recon-
ciled. In short, the dangers that Duncan saw in judicial
control of guilt determination speak clearly to Lockett’s
wish for reliability in death sentencing.

Gillers, supra, at 66-67.

The Court has often considered the weight of scholarly au-
thority in evaluating procedures concerning jury and death
penalty practices. See, e.g., Gregg v. Georgia, 428 U.S. at
189-95. The consensus among scholars is that a jury’s verdict
for life should be binding. Although the Proffitt plurality cited
sources to show that trial judges can play a useful role in capital
sentencing, 428 U.S. at 252 n.10, a survey of the literature
reveals considerable agreement that jury participation is high-
ly desirable, if not mandated, in capital sentencing.* Beth
sources cited by the Court in Proffitt note with approval the
prevailing practice of requiring a jury’s consent for death sent-
ences but leaving noncapital sentencing to experienced judges
alone.* Several additional sources, including the Model Penal

4 See Liebman and Shepard, Guiding Capital Sentencing Discre-
tion Beyond the “Boiler Plate:” Mental Disorder as a Mitigating
Factor, 66 Geo.L.J. 757, 819 n.273 (1978) (jury is appropriate, if not
constitutionally mandated, capital sentencing forum); Manneheim,
The Capital Punishment Cases: A Criticism of Judicial Method, 12
Loy.L.Rev. 85, 107-108, 131 (1978) (suggests requirement of jury
consent for death in penalty phase under the Constitution); Gillers,
Deciding Who Dies, 129 U. Penn. L. Rev. 1, 39-74 (1980) (jury consent
for death constitutionally required).

% See American Bar Association Project on Standards for Criminal
Sentencing, Sentencing Alternatives and Procedures, § 1.1,
Commentary 47-48 (Approved Draft 1968) (giving reasons for requir-
ing jury consent for death penalty); President’s Commission on Law
Enforcement and Administration of Justice: The Challenge of Crime
in a Free Society Task Force Report, The Courts 26 (capital jury
discretion generally accepted, but noncapital jury sentencing unde-
sirable).

37

Code, endorse a system where the trial judge is the final
sentencer but where an advisory jury’s recommendation for
life is binding.* One commentator, who compared several post-
Furmar systems, generally endorsed Florida’s statute and
case law but disapproved of the tension created between judge
and jury when a jury’s decision for life can be disregarded.”
Even severe critics of noncapital jury sentencing have advo-
cated the jury’s power to reject the death penalt®.*

D. The Countervailing Considerations Are Insufficient To
Justify The Override Procedure

Petitioner’s position may be challenged on three grounds.
First, Florida may have a compelling need for employing this
unique procedural device. Second, there is the potentia! prob-
lem of jury nullification. Third, as the Court suggested in
Proffitt v. Florida, judges’ professional training and experi-
ence may make them better capital sentencers. As shown
below, none of these countervailing considerations justify the
override procedure.

> American Law Institute, Model Penal Code 210.6 and
Commentary at 133 (Prop.Off.Draft 1962); Togman, supra, 39
N.Y.U.L. Rev. at 53; Wollan, The Death Penaity After Furman,
1974 Crim. Justice Systems Rev. 213, 230; Symposium on Capital
Punishment, 7 N.Y.L. Forum 249, 313 (1961) (opinion of Prof. Louis
B. Schwartz); Comment, Jury Discretion and the Unitary Trial
Procedure in Capital Cases, 26 Ark.L.Rev. 33, 52-53 (1972).

7 Shipiro, First Degree Murder Statutes and Capital Sentencing
Procedures: An Analysis and Comparison of Statutory Systems for
the Imposition of the Death Penalty in Georgia, Florida, Texas and
Louisiana, 24 Loy.L.Rev. 709, 736, 743-747 (1978).

% See, e.g., Note, Jury Sentencing in Virginia, 53 Va.L.Rev. 968,
969 (1967); Rubin, The Law of Criminal Correction 375 (1973).
LaFont, Assessment of Punishment—A Judge or Jury Function, 38
Texas L.Rev. 834, 838 (1960): Report of ithe Royal Commission on
Capital Punishment, 1949-1953, © 571.

1. Florida did not have a compelling reason for the over-
ride procedure

Florida’s override in favor of death is based on no judgment,
legislative or judicial, that such a procedure serves an impor-
tant state interest. Rather, the override’s only justification
was the state’s misapprehension that this device is required by
Furman. Furman “{pjredictably engendered confusion as to
what was required in order to impose the death penalty in
accord with the Eighth Amendment.” Lockett v. Ohio, 438
U.S. at 600. Like the procedures at issue in Woodson and Beck,
Florida’s override was passed in “direct response to Furman,”
438 U.S. at 600 n.7, and was a misguided attempt to “retain the
death penalty in a form consistent with the Constitution.”
Woodson, 428 U.S. at 298.

In 1872, Florida entrusted its juries with the decision on
death. There it remained until Furman in 1972. At the time of
Furman, Florida was in the process of amending its 1872 law.
Furman intervened and generated much confusion within the
Florida political system.** The two houses of the Florida
legislature divided sharply on the proper response to Furman.
The Florida Senate believed that Furman required jury con-
sideration of statutorily enumerated aggravating and mitigat-
ing circumstances. The jury would then, by majority vote,
render an advisory opinion of whether death should be im-
posed; a verdict for life would be binding but a verdict for death
advisory. See Ehrhardt and Levinson, F'lorida’s Legislative
Response to Furman: An Exercise in Futility? 64J. Crim. L.

* The Florida legislature responded to Furman by enacting its
new statute in a matter of days at a Special Session in December
1972. The act was approved by the Governor on December 8 and took
effect immediately. Florida thus became the first state to enact a
post-Furman death penalty statute. See Note, Florida’s Legislative
and Judicial Responses to Furman v. Georgia: An-Analysis and
Criticism, 2 Fla.St.L.Rev. 108, 126 (1974); see also Radelet and
Vandiver, The Florida Supreme Court and Death Penalty Appeals,
74 J. Crim. L. and Criminology 401, 402 (1988).

39

and Criminology 10, 15 (1973). The Governor, Attorney Gener-
al and State House of Representatives, however, read Fur-
man differently. According to the House bill, the jury would be
excluded from the penalty phase altogether. See Ehrhardt &
Levinson, supra, at 15.

The resulting statute, formulated by a conference commit-
tee, was a compromise between the House bill and the Senate’s
proposal:

Because neither the House nor the Senate would retreat
from its stance on the procedure and composition of the
sentencing proceeding contained in the bill passed by
each, aconference committee was necessary to resolve the
differences. The statute finally approved is a hybrid: in
return for the House’s approval of a judge and jury
sentencing procedure, the Senate abandoned its in-
sistence that the jury have a determinative role in
sentencing in capital cases. While the statute retains the
Senate’s philosophy that the jury should participate in the
sentencing process, the jury now has the authority only to
give an advisory sentence which can then be rejected by
the trial judge if his findings regarding mitigating and
aggravating circumstances Justifv such action.

Ehrhardt & Levinson, supra at 16.

The Florida Supreme Court’s approval of the override has
been based on the same misconception of Furman’s require-
ments. In the decision below the Supreme Court of Florida said
that “allowing the jury’s recommendation to be binding would
violate Furman.” Spaziano v. State, 433 So.2d 508, 512 (Fla.
1983); JA 49; accord Johnson v. State, 393 So.2d 1069, 1074
(Fla. 1981); Douglas v. State, 373 So.2d 895, 897 (Fla. 1979).
But “[njothing in any of our cases suggests that the decision to
afforc an individual defendant mercy violates the Constitu-
tion.” Gregg, 428 U.S. at 199. Furman invalidated the prior
capital sentencing schemes because they gave the sentencer
unbridled discretion to impose death,” not because it gave the
jury discretion to extend mercy.

* See Anderson v. Florida, 408 U.S. 938 (1972); Pitts v. Wain-
wright, 408 U.S. 491 (1972); Boykin v. Florida, 408 U.S. 940 (i972):

40

The legislative history and judicial construction of the over-
ride show that the state’s decision to employ this curious pro-
cedural device was made solely” in an attempt to “retain the
death penalty in a form consistent with the Constitution,”
Woodson, 428 U.S. at 298, rather than a legislative judgment
that judges will render more reliable capital sentences. The
Florida legislature, confronted with Furman’s statement that
unbridled jury discretion violated the Cons. tution and
McGautha’s statement that the formulation of standards to
guide juries was impossible, reasonably believed that its over-
ride was constitutionally required.

2. Jury nullification is not a factor

Jury nullification occurs when a jury acts to acquit a defend-
ant whom an omniscient observer would say was guilty beyond

Brown v. Florida, 408 U.S. 938 (1972); Hawkins v. Wainwright, 408
U.S. 941 (1972); Johnson v. Florida, 408 U.S. 939 (1972); Paramore
v. Florida, 408 U.S. 935 (1972); Thomas v. Florida, 408 U.S. 935
(1972); Williams v. Wainwright, 408 U.S. 941 (1972); Anderson v.
State, 267 So.2d 8 (Fla.1972); Chaney v. State, 267 So.2d 65
(Fla.1972); Reed v. State, 267 So.2d 70 (Fla.1972); In re Baker, 267
So.2d 331 (Fla. 1972); Newman v. Wainwright, 464 F.2d 615 (5th Cir.
1972); Adderly v. Wainwright, 272 F.Supp. 530 (M.D. Fla. 1972).

" Tronically, in State v. Dixon, 283 So.2d 1 (Fla. 1973), the seminal
case in which the Florida Supreme Court held its death penalty
constitutional, the court justified the override in this way:

The third step added to the process of prosecution for capital
crimes is that the trial judge actually determines the sentence to
be 5 ge by, but not bound by, the findings of the
jury. To a layman, no capital crime might appear to be bee than

einous, but a trial judge with experience in the facts of criminal-
ity possesses the requisite knowledge to balance the facts of the
case against the standard criminal activity which can only be
developed by involvement with the trials of numerous defend-
ants. Thus the inflamed emotions of jurors can no longer sent-
ence a man to die; the sentence is viewed in the light of judicial
experience.

Id. at 8.

41

a reasonable doubt; the jury nullifies the law, and a factually
“guilty” defendant is acquitted. But the decision on death is
quite different:

Jury nullification, of course, goes to the question of
whether a defendant will, on the one hand, be found guilty
and be punished according to the strict dictates of the law,
or, on the other, be forever free from any legal con-
sequences of his criminal act. By marked contrast, whena
jury declines to impose the death penalty upon one already
convicted of a capital crime, the jury’s exercise of commu-
nity conscience and norms ordinarily will not result in the
defendant being set free. In Mississippi, for example, the
i y's sentencing alternatives for a capital offense are
imited solely to capital punishment and life imprison-
ment.
Washington v. Watkins, 655 F.2d 1346, 1374 n.54 (5th Cir.
1981). In short, jury nullification results in the release of a
“guilty” person. In Florida a binding life verdict would mean
that the defendant will be incapacitated for a minimum of 25
years without parole.

More fundamentally, as discussed above, the jury, by
reflecting the mores and values of the community in deciding
who should die, is following the law. In a capital sentencing
scheme such as Florida’s, the jury’s primary role is to place the
defendant and his crime on the yardstick of community out-
rage.

3. The insufficiency of judicial expertise in capital
sentencing

One may accept the general proposition that jury sentencing

is required to ascertain the “conscience of the community” and
till argue that judicial sentencing is needed to foster con-
istency among cases. In Proffitt v. Florida, the Court ob-
served that “judicial sentencing should lead to greater con-
sistency. . . since a trial judge is more experienced in sentenc-
ing than a jury, and therefore is better able to impose sent-
ences similar to those imposed in analogous cases.” 428 U.S. at
252. But while judges may bring a variety of professional skills

42

to sentencing, those skills cannot substitute for ajury sitting as
the “peers” of the accused.

Noncapital sentencing involves factors and considerations
better understood by judges. For example, lay jurors would
probably not be aware of the availability of rehabilitative re-
sources in the jurisdiction, conditions in the prisons, the likeli-
hood of recidivism for the given offense, or the competence of
local parole officials. “Most of these sentencing considerations
do not arise in the death penalty decision, and so the judge’s
greater knowledge and ex erience are not called upon.” Gil-
lers, supra at 57. But more importantly, “there is no way fora
judge to equal what ajury can best bring to the capital sentenc-
ing process—the community’s view.” Jd. at 57-58. This is the
key to the retribution inquiry, and here it is the jury, morethan
the judge, that has the “expertise.”

The concern with “individualization” expressed in Lockett
and Eddings also renders questionable the theoretical rele-
vance of “analogous” cases at the sentencing stage. Lockett
emphasizes the differences between people, their “unique-
ness,” 438 U.S. at 605, when it comes to capital sentencing.

Judges, moreover, may not have expertise that would in fact
materially promote consistency in capital sentencing. What-
ever expertise judges may have in noncapital sentencing is
derived from their substantial experience in performing that
function. But capital cases in any one jurisdiction are reiatively
rare; the actual number of capital cases that any one judge may
sit on will be yet smaller. Thus, the ordinary predicates that
provide expertise and thus greater consistency in
sentencing—frequency and experience—are lacking in capital
sentencing.

Moreover, judicial sentencing itself has been criticized for its
high degree of inconsistency; the recent trend is to replace the
discretion of sentencing judges with specific guidelines and
more limited options for terms of imprisonment. See generally
ABA Minimum Standards in Sentencing § 3. l\et seq.; Hoffman
& Meierhober, Application of Guidelines of Sentencing, 3 L.

43

and Psyh. Rev. 53 (1977); Partridge & Eldridge, The Second
Circuit Sentencing Study: A Report to the Judges of the Second
Circuit (Wash. D.C., Federal Judicial Center 1974); Fla. R.
Crim. P. 3.701, 3.988. To the extent similar defendants will be
sentenced by different trial judges, the judges will predictably
apply different standards in capital cases just as they do now in
noncapital cases.

Finally, it might be argued that a capital sentencing
determination is more than simply a decision regarding
retribution. The sentencer also makes findings of facts, and
judges may have greater expertise in factfinding that justifies
the corrective device of jury override. But such an argument
would squarely conflict with Bullington v. Missouri, 451 U.S.
430 (1981).

Robert Bullington was initially sentenced by a jury to life
imprisonment; following reversal of his sentence by the state
appellate court, the prosecutor attempted to again seek the
death penalty. The Court held that because the first proceed-
ing resembled a trial on guilt or innocence and because the
state had involved a jury in that proceeding, the jury’s
determination for life was an “acquittal” for double jeopardy
purposes. Although prior cases had declined to extend double
jeopardy protections to sentencing, the similarity of the pro-
cedural structure of capital sentencing to those found at a trial
on guilt or innocence mandated a different conclusion. 451 U.S.
at 439.

Every major feature of the Missouri penalty trial relied on in
Bullington is also present under the Florida procedure: the
clear-cut choice between only two sentencing alternatives; the
requirement that the jury base its choice upon the evidence,
guided by detailed legal standards; the requirement that the
state prove the proffered aggravating circumstances beyond a
reasonable doubt; the presentation of evidence by both sides;
opening and closing arguments by counsel; jury deliberations;
and a formal verdict. Compare Bullington, 451 U.S. at 438 &n.
10, with § 921.141(1) & (2), Florida Statutes; Florida Rule of

+4

Criminal Procedure 3.780; State v. Dixon, 283 So.2d 1, 9 (Fla.
1973).

The chief distinction between Bullington and the Florida
procedure is that a Missouri jury’s life decision is made binding
by statute while a Florida’s jury verdict for life imprisonment
is denominated “advisory.” But the language and reasoning of
Bullington suggest that this distinction cannot control. Under
Florida law, the state is required to present its factual case on
sentencing in a jury proceeding that has all the indicia of a trial.
But if it fails, it gets a second bite at the apple before the judge;
indeed, it is free to adduce additional information in the form of
a pre-sentence report, as occurred in this case. But cf. Presnell
v. Georgia, 439 U.S. 14 (1978). “By enacting a capital sentenc-
ing procedure that resembles a trial on the issue of guilt or
innocence, however, [Florida] explicitly requires the jury to
determine whether the prosecution has ‘proved’ its case.’ ”
Bullington, 451 U.S. at 444 (emphasis in original); see
§ 921.141(2) & (3), Florida Statutes.

The mitigating and aggravating circumstances listed in the
Florida statute are questions of fact. See Ford v. Strickland,
696 F.2d 804, 876 (11th Cir. 1983) (Anderson, J., dissenting).
Whether a crime was committed for pecuniary gain: whether a
defendant was under sentence of imprisonment; whether a
defendant was previously convicted of a felony; whether a
defendant knowingly created a risk of death to many persons;
whether a defendant has a significant history of prior criminal
activity; whether the capital feluny was committed while the
defendant was under the influence of extreme mental or emo-
tional distress; or whether the defendant’s capacity to appreci-
ate the criminality of or to control his conduct was impaired.
These are all facts, and indeed are facts similar to factfindings
traditionally made by juries at trials on guilt. The life or death
decision depends on the existence or nonexistence of these
facts. Bullington requires that a jury’s findings of these facts
must be deemed final.

In summary, the jury override procedure is constitutionally
unacceptable. To the extent that the death decision is a deci-

45

sion whether to be retributive, the jury’s verdict for life should
be final. To the extent that the death decision involves findings
of fact, Bullington mandates that the jury’s findings cannot be
overridden.

Ill

THE FLORIDA STANDARDS FOR THE OVERRIDE OF A
JURY’S LIFE VERDICT ARE APPLIED IN A MANNER
THAT DISCOUNTS THE JURY’S CONSIDERATION OF
MITIGATING FACTORS AND THAT IS SO BROAD AND

VAGUE AS TO VIOLATE THE CONSTITUTIONAL
REQUIREMENT OF RELIABILITY IN THE
DETERMINATION THAT DEATH IS THE APPROPRIATE
PUNISHMENT IN A PARTICULAR CASE.

Petitioner’s death sentence was the result of pincer-like
constraints on the jury’s ability to exercise its decision-making
power in a reasonable and rational manner. On one hand, the
jury was deprived of the ability accurately to gauge the weight
of the evidence against petitioner because of the failure to
charge the lesser included offenses. On the other hand, the
jury’s apparent attempt to proportion its verdict to petitioner’s
culpability at the sentencing phase was overridden by the
judge.

Separately and together, these errors violated the Constitu-
tion. Together, they deprived this sentencing decision of any
semblance of the reliability required by the Constitution. See
Zant v. Stephens, ___ U.S. at ___, 108 S.Ct. at 2747. As set
out in Point I, the failure to charge the lesser included offenses
created the same risk of unreliability in the guilt determination
that the Court found unacceptable in Beck v. Alabama, supra.
As shown below, the application of the Florida override stand-
ards intensified this risk at the penalty phase, in viclation of
established constitutional requirements.

As articulated in Tedder v. State, 322 So.2d 908 (Fla. 1975),
the Florida override standard focuses only on the reasons for
imposing death: that “the facts suggesting a sentence of death
should be so clear and convincing that Virtually no reasonable

46

person could differ... .” /d. at 910 (emphasis added). But the
Constitution requires that the jury be entitled to weigh mat-
ters reasonably relevant to mitigation. A jury override stand-
ard that does not take that weighing into account is con-
stitutionally infirm under Lockett, 438 U.S. at 601 (quoting
Woodson v. North Carolina, 428 U.S. 280, 304 (1976

Consider the application of the Tedder standard in this case:
The Florida Supreme Court found that “the facts suggesting
that the death sentence be i imposed over the jury’s rec: ommen-
dation of life . . . meets the clear and convincing t test...” of
Tedder. 433 So. 2d at 511; JA 48. But the jury’s determination
cannot be overridden solely on the basis of “the facts suggest-
ing that the death sentence be imposed,” id.. when “(a} jury
must be allowed to consider on the basis of all relevant evidence
not only why a death sentence should be imposed, but also why
it should not be imposed.” Jurek v. Texas, 428 U.S. 262, 27
(1976).

The weakness of the evidence against petitioner, particular-
ly with regard to the critical questions of culpability—i.e., the
degree of his involvement and the level! of his intent
relevant factor that the jury can consider as a reason “why [ the
death penalty) should not be imposed.” Jd.“ See California v.
Ramos, —— U.S. ——, 108 S.Ct. 3446, 3456 (1983) (“the jury

. ls free to consider a myriad of factors to determine whether
death is the appropriate punishment”). This is particularly
true in this case, where the jury was not allowed to resolve at
the guilt phase any reasonable doubts that it may have had
about the degree of petitioner’s culpability.

“See American Law Institute, Mode] Penal Code § 201.6.1"f
(Proposed Official Draft 1962) (quoted in McGautha vy. California,
402 U.S. at 223); Royal Commission on Capital Punishment 1949-53
€ 39, p.12 (1953); Blankenship v. State, {08 S.E.2d 369, 371 (Ga.
1983); Smith v. Balkcom, 660 F.2d 573, 580-81 (Sth Cir. 1981),
modified, 671 F.2d 858 (Sth Cir. 1982). Cf. Green v. Georgia, 442 U.S
95, 98 (1979).

47

It is not a sufficient answer to say that whatever mitigating
concerns the jury may have had were outweighed by the
strength of the aggravating factors. First, the Florida Su-
preme Court made no finding concerning the relative weight of
the aggravating and mitigating factors in this case. Rather, it
affirmed the override because the aggravating factors alone
were “clear and convincing.” Spaziano, 433 So.2d at 511; JA
48. Thus, half of what the jury was to weigh was reevaluated by
the Florida Supreme Court, the other half was ignored. But
even if the Florida Supreme Court had reweighed the
aggravating and mitigating factors, that would not have beena
sufficient basis to override the jury’s verdict. The Florida
statute requires “separate determinations,” first, that at least
one statutory aggravating circumstance exists beyond a
reasonable doubt, second, “that the existing statutory
aggravating circumstances are not outweighed by statutory
mitigating circumstances” and third, “that death is the appro-
priate penalty... .” Barclay, ___ U.S. at , 103 S.Ct. at
3430 (Stevens & Powell, JJ., concurring). It is “entirely possi-
ble” that the sentencer might “yet feel that a comparison of the
totality of the aggravating factors with the totality of the
mitigating factors leaves it in doubt as to the proper penalty.”
Smith v. North Carolina, _— U.S. —~, 103 S.Ct. 474,
474-75 (1982) (Stevens, J., opinion respecting the denial of
certiorari). The record indicates that this jury had few doubts
about the proper penalty; it returned a life sentence after only
brief deliberation. By ignoring the jury’s reasonable mitigat-
ing concerns, the override failed to “assure[ ] reliability in the
determination that ‘death is the appropriate punishment in
[the] specific case.’ ” Jd. (quoting Lockett, 438 U.S. at 601).

Perhaps at first blush, the Tedder standard may seem simi-
lar to that for a directed verdict or a judgment notwithstanding
the verdict. See Fed. R.Civ.P. 50; but compare Fed.R. Crim.P.
29c) (providing for motion for judgment of acquittal only). But
it is not. The standard for a judgment notwithstanding the
verdict is whether a jury could reasonably have decided as it
did, given the evidence before it and the logical inferences

4s

arising from that evidence. The life or death decision is differ-
ent because it is not exclusively a factual question. This jury
answered “no” to the constitutionally relevant question:
whether the defendant deserves to die, a determination
properly informed by the values and mores of the community
as best expressed by the jury’s verdict. Yet, Florida permitted
the verdict to be overridden without consideration of the
reasonableness of that determination, simply on the basis of
the aggravating facts alone.

If an override of a jury’s life verdict is ever constitutional, it
may only be pursuant to a standard which recognizes—as
Florida has done in its recent cases—“that a jury’s advisory
opinion is entitled to great weight, reflecting as it does the
conscience of the community, and should not be overruled
unless no reasonable basis exists for the opinion.” Richardson
v. State, 437 So.2d 1091, 1095 (Fla. 1983). This standard gives
full weight both to the jury’s consideration of mitigating fac-
tors and to its assessment of the appropriateness of the death
penalty in light of contemporary community values.

The Richardson standard, moreover, highlights another
constitutional infirmity of Tedder as applied in this case: “[I]fa
State wishes to authorize capital punishment it has a con-
stitutional responsibility to tailor and apply its law in a manner
that avoids the arbitrary and capricious infliction of the death
penalty... .” Godfrey v. Georgia, 446 U.S. 420, 428 (1980). A
finding that “virtually no reasonabie person could differ” with
the imposition of the death penalty in a given case, Tedder, 332
So.2d at 910, is inherently subjective and unreliable.

“(Reasonable persons can differ over the fate of every crimi-
nal defendant in every death penalty case.” Spinkellink v.
Wainwright, 578 F.2d 582, 605 (5th Cir. 1978). In every jury
override case a judge and a jury of twelve men and women have
in fact disagreed on the appropriateness of the death penalty.
And in more than half of the cases in which the Florida Su-
preme Court has affirmed a trial judge’s override of a jury life

49

verdict, at least one Justice has dissented.* And in almost
every one of those cases there was at least one plausible
mitigating circumstance.*

* The Florida Supreme Court has approved overrides in twenty
cases. Thirteen of these cases contained dissents. See Heiney v.
State, ___ So. 2d ,9Fla. L. Week. 54, 57-8 (Fla. 1984) (Boyd and
McDonald, J.J., dissenting); Lusk v. State, ___ So.2d ___., 9 Fla. L.
Week. 39, 41 (Fla. 1984) (Overton and McDonald, J.J., dissenting);
Stevens v. State, 419 So.2d 1058, 1065 (Fla.1982) (McDonald and
Overton, J.J., dissenting); Miller v. State, 415 So.2d 1262, 1264 (Fla.
1982) (McDonald and Overten, J.J., dissenting); Buford v. State, 403
So.2d 943, 954 (Fla.1981) (England, J., dissenting); Zeigler v. State,
402 So.2d 365, 377 (Fla.1981) (Sundberg and England, J.J., dis-
senting); Johnson v. State, 393 So.2d 1069, 1075-76 (Fla.1981)
(McDonald and Overton, J.J., dissenting); Hoy v. State, 353 So.2d
826, 833 (Fla.1978) (England, J., dissenting); Barclay v. State, 343
So.2d 1266, 1272 (Fla. 1977) (Hatchett, J., dissenting); Dobbert v.
State, 328 So.2d 433, 444 (Fla. 1976) (England, J., dissenting); Doug-
las v. State, 328 So.2d 18, 22 (Fla. 1976) (England, J., dissenting);
Sawyer v. State, 313 So.2d 680, 682 (Fla. 1975) (Ervin, J., dis-
senting); Gardner v. State, 313 So.2d 675, 677 (Fla. 1975) (Ervin, J.,
dissenting).

#4 See Lusk v. State, So.2d __, 9 Fla. L. Week. 39, 41 (Fla.
1984) (Overton, J., dissenting) (“The jury could have reasonably
believed the appellant’s testimony that he had been threatened by
the victim and feared for his life”); Heiney v. State, So.24 ......., 9
Fla. L. Week. 54 (Fla. 1984), Brief of Appellant at 59-61 (doubt about
guilt); Routly v. State, 440 So.2d 1257. (Fla. 1983) (domestic di‘ficul-
ties; girlfriend left defendant and spent the night with victim: possi-
ble mitigating circumstances of age of defendant, lack of significant
criminal activity and extreme emotional disturbance); Porter v.
State, 429 So.2d 293, 296 (Fla.1983) (possible mitigating circum-
stances of age, lack of significant history of prior criminal activity and
employment history); Bolender v. State, 422 So.2d 833, 837
(Fla.1982) (disparity between sentences received by defendant and
codefendant; weakness of evidence of guilt, which was based on
testimony of codefendant); Stevens v. State, 419 So.2d 1058, 1065
(Fla. 1982) (McDonald, J., dissenting) (“the jury could have con-

50

In reversing the death sentence in Godfrey, the Court looked
to other Georgia cases on the same point and concluded that a
properly limiting standard had been applied in those cases but

cluded that Stevens participated in the robbery and rape but that
[the codefendant] was the sole perpetrator of the homicide”); Miller
v. State, 415 So.2d 1262, 1264 (Fla. 1982) (McDonald, J., dissenting)
(the homicide was “the combination of a drug and alcchol infested
party;” “a psychologist testified that Miller has a weak ego, that he is
a ‘follower,’ that he is whatever his environment may be around him
...”); Buford v. State, 403 So.2d 943, 953 (Fla.1981) (doubt about
guilt); Zeigler v. State, 402 So.2d 365, 376 (Fla. 1981) (“The evidence
establishes .. . the defendant has no significant history of prior
criminal activity”); White v. State, 403 So.2d 331, 339, 340 (Fla. 1981)
(defendant was an accomplice in the capital felony committed by
another and his participation was relatively minor); Johnson v. State,
393 So.2d 1069, 1075 (Fla. 1981) (Sundberg, J., dissenting) (“There is
nothing about the actual homicide itself to set it apart from the norm
of murders—a single gunshot to the chest with death ensuing instant-

ly and. . . the fussilade of pistol shots was initiated by the victim”);
id. at 1076 (McDonald, J., dissenting) (“The victim initiated the
shooting. . . . The testimony of the psychologist could lead one to

believe that the defendant’s apparent malevolent act against the
victim was in fact an unexplained reaction to being fired at”); McC rae
v. State, 395 So.2d 1145, 1154-55 (Fla.1981) (doctor testified that
defendant was under the influence of extreme mental or emotional
disturbance at the time the crimes were committed); Dobbert v.
State, 375 So.2d 1069, 1070-71 (Fla.1979) (defendant subjected to
childhood child abuse and period of mental stress preceeding the
homicide); Dobbert v. State, 328 So.2d 433, 444 n.* (Fla. 1976) (Eng
land, J., dissenting) (“by imposing and discussing the basis for co..-
secutive sentences the tria: judge anticipated the possibility that
reasonable people might differ with him”), Hoy v. State, 353 So.2d
826, 833 (Fla. 1978) (sentencing judge found the defendant's age and
lack of prior criminal activity to be mitigating factors) (Governor
subsequently commuted sentence to life); Barclay v. State, 343 So.2d
1266, 1271 (Fla. 1977) (age; minor involvement); Douglas v. State,
328 So.2d 18 (Fla. 1976) (bizarre love triangle; wife and defendant had
previous relationship and lived together for ten days after murder of

51

not in the case before it. 446 U.S. at 429-33. An analysis of the
Florida Supreme Court’s override decisions leads to a similar
conclusion. In a host of override cases, the Florida Supreme
Court has applied the more objective “reasonable basis” test.
For example, in McCampbell v. State, 421 So.2d 1072 (Fla.
1982), the Florida court conducted “an objective review of the
record” and found “that the action of the jury was reasonable.”
Id. at 175-76. It held that the jury could have found any of four
nonstatutory mitigating circumstances and, in addition, could
have considered the disposition of the codefendant’s case as
reflecting on appropriateness of the death penalty for
McCampbell. Jd. Accord Herzog v. State, 439 So.2d 1372 (Fla.
1983) (although judge found no statutory mitigating circum-
stances, there were nonstatutory mitigating factors including
disposition of codefendant’s case).

Similarly, in Cannady v. State, 427 So.2d 723 (Fla. 1983),
the court found that “the jury may have given more credence
to” certain testimony supporting statutory mitigating circum-
stances and that, therefore, “there is a reasonable basis for the
jury s recommendation of life sentence.” Jd. at 731. This stand-
ard was applied to disapprove overrides in numerous other
cases. See, e.g., Richardson, 437 So.2d at 1095; Hawking v.
State, 436 So.2d 44 (Fla. 1983); Washington v. State, 432 So.2d
44 (Fla. 1983); Norris v. State, 429 So.2d 688 (Fla. 1983).

Thus, although the Florida court has an objective standard
that is capable of application in a meaningfulmanner to avoid
arbitrariness in the override of jury life verdicts, it was not
applied in petitioner’s case. Had it been, the override could not
have been affirmed. For as previously discussed, there was a
reasonable basis for the jury’s life verdict: the weakness of the

husband); Sawyer v. State, 313 So.2d 680, 680-81 (Fla. 1975) (uninten-
tional killing in the course of a robbery to support a $200 a day heroin
habit) (sentence subsequently commuted to life); Gardner v. State,
313 So.2d 675 (Fla. 1975) (husband murders wife after drinking spree
in context of alcoholism and marital tension).

52

evidence regarding petitioner’s culpability. The Florida Su-
preme Court has expressly validated such concerns in
McCampbell and Herzog, where it held that the jury life ver-
dict could reasonably have been based on consideration of the
disposition of the codefendant’s case. But compare Davis v.
State, 90 So.2d at 632 (“the ultimate verdict at least suggests to
us that the jury itself was in doubt [about guilt] and therefore
reluctant to impose the supreme penalty. ... This was, of
course, within the orbit of their authority as jurors”); Nims v.
State, 70 So. at 566 (same), with Buford v. State, 403 So.2d 943,
953 (Fla. 1981) (“A defendant cannot be a ‘little bit guilty’ ”).

The record strongly supports the conclusion that this was
both the basis of the jury’s verdict and the source of its dis-
agreement wi.h the judge. Unable to consider the “third op-
tion,” the jury agonized over its verdict at the guilt phase. But
the deliberations on sentence were short. The defense attor-
ney specifically argued the weakness of the evidence as a

reason for a life verdict, placing this consideration before the
jury (TS 16-17). But the judge attempted to remove this factor
from the jury’s consideration, cutting off counsel’s argument as
allegedly improper (TS 18). This strongly suggests that the
judge’s subsequent disagreement with the jury and imposition
of the death sentence was based at least in part on his failure to
consider this factor.

Finally, the override in this case cannot be justified on the
basis of “the prior conviction of a violent felony which the jury
did not have an opportunity to consider. . .,” Spaziano, 433
So.2d at 511; JA 48, for several reasons. First, it was the trial
judge who held the prior conviction inadmissible at the penalty
phase, thus keeping it from the jury. Second, to approve the
override on this basis contravenes the very values that in-
validated the sentence in Bullington. See discussion supra,
Point II, at 43-44. Allowing a judge to consider in aggravation
materials not before the jury would encourage prosecutors to
“sandbag” defendants by holding back certain evidence in case
the jury returned an advisory verdict of life with the hope of
using it to persuade the judge to overrule the jury. Such tactics

by defense lawyers have, in recent years, increasingly drawn
the Court’s ire. The Constitution “cannot condone a proceeding
which, even subtly, detracts from comprehensive considera-
tion of the aggravating and mitigating factors [by the jury]
after all parties have agreed on the appropriate evidence to be
considered.” Richardson, 437 So.2d at 1095. In Richardson,
the trial judge had overridden the jury’s life recommendation
because the jury “did not have the benefit of all of the evi-
dence.” /d. at 1095. The Florida Supreme Court reversed the
trial judge’s override, because it could not “countenance the
derrogation of the jury’s role implicit in these comments.” /d.;
cf. Messer v. State, 330 So.2d 137 (Fla. 1976) (rejecting trial
judge’s reasoning that he could consider mitigating evidence
not available to jury before actually imposing sentence); Miller
v. State, 332 So.2d 65 (Fla. 1976) (same). But see, Engle v.
State, 438 So.2d 803 (Fla. 1983); Porter v. State, 429 So.2d 293,
296 (Fla. 1983); Smith v. State, 403 So.2d 933, 935 (Fla. 1981);
White v. State, 403 So.2d 331, 339-40 (Fla. 1981); Brown v.
State, 367 So.2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1686%3A5. Public record. Not legal advice.