Petitioners Reply Brief — Lmicro_IA40385011_1699

2 PAGE 61

MAR

Supreme Court, U.S.

FILED

FEB 23 1984

No. 83-5767

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

MICHAEL DALE LEATHERWOOD,

Petitioner,

Vv.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

REPLY BRIEF

Michael Sandler

(Counsel of Record)

Michael C. Miller

Felice Busto

STEPTOE & JOHNSON

Chartered

1250 Connecticut Avenue,

Washington, D.C. 20036

(202) 862-2061

N.W.

ATTORNEYS FOR PETITIONER

TABLE OF AUTHORITIES

Cases:

Barclay v. Florida, _ U.S. ___, 103 S.Ct. 3418

(19BS) occccccsccccccccccccsccccescsecesccceoecces

Eddings v. Oklahoma, 455 U.S. 104 (1982).......2.0.

Gardner v. Florida, 430 U.S. 349 (1977) ...cccsccces

Godfrey v. Georgia, 446 U.S. 420 (1980) ..ccccccces °

Henry v. Wainwright, 721 F.2d 990 (5th Cir. 1983)..

Jenkins v. Georgia, 418 U.S. 153 (1974) ..-eeeeeeees

Lockett v. Ohio, 438 U.S. 586 (1978) ...ceccceceeees

Manhattan Life Insurance Co. v. Cohen, 234 U.S.

SE REDE 6 cb6s RECA Obs 0b bd R6U RESO OSCE SOOKE SOO CO RSS

Pulley v. Harris, 52 U.S.L.W. 4141 (U.S. Jan. 23,

| Pr rrre rrr rrrre ry ce eee ee ee

Raley v. Ohio, 360 U.S. 423 (1959) -ccccccccsceccees

Vitek v. Jones, 445 U.S. 480 (1980) .ccccccccccccvces

Washington v. Watkins, 655 F.2d 1346 (Sth Cir.

1981), cert. denied. 102 S.Ct 2021 (1982)........

Zant v. Stephens, U.S. » 203 §.Ct.

ee) M6 3) ) SP rrrrrrTarTeTTrrTCr rT et ee

Constitution:

U.S. Constitution, Eighth and Fourteenth Amendments

Statutes:

Miss. Code Ann. §§ 99-19-101, 103, lOS.~..cececevees

and 107 (Supp. 1982)

Other Authorities:

Comment, Constitutional Problems Concerning Certain

Aggravating Circumstances Used for Capital

Sentencing in Mississippi, 53 Miss. L.J. 319

C29B3) wo cccccccacescccesccccccsecressesosecosecces

coeee passim

ceecee passim

MICHAEL DALE LEATHERWOOD,

Petitioner,

Ve

STATE OF MISSISSIPPI,

: Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

REPLY BRIEF

l. Petitioner contends that the duplication of

“robbery” and “pecuniary gain” as separate aggravating factors

Supporting his death sentence, created a substantial risk of

an unreliable “balancing” under Mississippi's death sentencing

Statute -- where stitutory mitigating factors were also pres-

ent. Whether the Eighth Amendment tolerates such unreliability

in the face of statutory mitigating factors is an important

question left open last term by Barclay v. Plorida, U.S.

, 103 S. Ct. 3418 (1983).

Respondent's only apposite response is a quotation

from Henry v. Wainwright, 721 F.2d 990 (Sth Cir. 1983). In

Henry, the Fifth Circuit upheld an application of both robbery

and pecuniary gain as aggravating circumstances where the trial

judge, relying on Barclay, explicitly found no mitigating

circumstances. Thus, Henry does not illuminate the issue left

open in Barclay.

Another fact distinguishes Henry. There, the

duplicative factors in a Florida statute were weighed by a

judge who may have discounted the duplicativeness. Here, the

Guplicative factors were weighed against mitigation factors by

a jury, which was not cautioned or guided regarding the

Guplicativeness of the Mississippi factors.

Since this petition was filed, the Court decided

Pulley v. Harris, U.S. *52 U.S.L.W. 4141 (January 23,

1984), which, unlike this case, dealt with the facial validity

of death sentencing statutes -- specifically, whether such

Statutes had to provide for proportionality reviews. The Court

noted that any capital sentencing scheme may produce

"aberrational outcomes,” but suggested that at least in Pulley

such “inconsistencies” did not rise to the level of "major

Systemic defects identified in Furman.” Id., 52 U.S.L.W. at

4145.

Petitioner submits that the present case involves a

"systemic defect" in how Mississippi applied the statutory sen-

tencing factors in its balancing scheme. By using the same

evidence to invoke two factors to support the sentence of death

below, at least one of the duplicative factors became

tainted. Without guidance, petitioner's jury was instructed to

balance these duplicative factors against statutory mitigating

factors established by the evidence (Pet. at 4-5) -- creating a

Significant risk that the balancing process was unreliable and

hence arbitrary. The entire process was thus systemically

infected. Although respondent claims that Mississippi law

permitted the jury to impose a life sentence notwithstanding

this balancing process (Brief in Opposition at 6), the jury was

not so explicitly instructed. Indeed, as expounded in

petitioner's Issue No. 3, petitioner's requested instruction to

this effect was rejected.

Petitioner's case presents a factually clear and

appropriate occasion for the Court to illuminate the issue of

when an invalid application of sentencing factors so infects

a death sentencing process as to cross the threshold of consti-

tutional impermissibility -- issues not reached in Zant v.

Stephens, U.S. , 103 S. Ct. 2733 (1983), or in Barclay v.

Florida, supra. Respondent cannot and does not dispute that

Issue No. 1 is ripe for the granting of certiorari.

2. Respondent does contest the ripeness of peti-

tioner's second issue -- whether Mississippi unconstitutionally

applied a vague aggravating factor (that the murder was "“espe-

cially heinous, atrocious or cruel") by compelling petitioner

to reenact before the jury his role in the crime. Respondent

misperceives the standard for granting certiorari. Although

petitioner at the state level raised the issue below in state

law terms, the Mississippi Supreme Court addressed and disposed

of the issue in federal constitutional terms. It explicitly

reaffirmed its prior holding that Godfrey v. Georgia, 446 U.S.

420 (1980), was a narrow decision limited to its peculiar facts

-- and thus Godfrey, in Mississippi's view, did not in any way

preclude the forced demonstration to establish whether the

Murder was “especially heinous, atrocious and cruel.” Since

the highest state court below reached and decided the federal

constitutional issue, certiorari may properly be granted. See,

Jenkins v. Georgia, 418 U.S. 153, 157 (1974); Raley v. Ohio,

360 U.S. 423, 436 (1959); Manhattan Life Insurance Co. v.

Cohen, 234 U.S. 123, 134 (1914).

3. For similar reasons, respondent misperceives the

ripeness of petitioner's Issue No. 3. Although not raised by

petitioner's counsel on appeal, the federal constitutional

issue was embraced by two of the dissenting Justices. Hence,

it was sufficiently preserved. Gardner v. Florida, 430 U.S.

349, 361 (1977) (when some members of a reviewing court

expressly consider a point below, this Court presumes that

the entire Court has passed on the question); see Eddings v.

Oklahoma, 455 U.S. 104, 114 n.9 (1982).

Petitioner contends that it was constitutional error

for the Mississippi trial court to refuse requested jury

instructions (a) that death need not be imposed even if the

jury found an aggravating circumstance, and (b) that mitigating

circumstances need not be found to return a sentence of life.

Respondent has now implicitly conceded the validity of these

requested instructions under Mississippi law -- by confirm-

ing that petitioner's jury had the power to make the very

determinations at issue in those instructions:

In other words, even in the complete

absence of mitigating factors, a sentenc-

ing jury is not compelled legislatively

[in Mississippi] to return a sentence of

death no matter how many aggravating

factors it has before it.

(Brief in Opposition, at 6).

Since a capital defendant has a constitutional right

to present all mitigating considerations that might bear on

his sentence, Lockett v. Ohio, 438 U.S. 586 (1978), and to

obtain an “individualized” sentence, Zant v. Stephens, supra,

it should follow that the same defendant has a constitutional

right, consistent with state procedural requirements, to be

granted jury instructions that give effect to his mitigating

considerations -- particularly when the state sentencing stat-

ute Supports the requested instructions. Although at least one

federal court has recognized this federal right, Washington v.

Watkins, 655 F.2d 1346, 1374 (Sth Cir. 1981), cert. denied, 102

S. Ct. 2021 (1982), this Court has not passed on the question.

4. Petitioner contends that once a proportionality

review is provided by statute, "due process protections are

necessary to ensure that the state-created right is not arbi-

trarily abrogated.” Vitek v. Jones, 445 U.S. 480, 488-89

(1980). This due process guarantee is unaffected by this

Court's recent decision in Pulley v. Harris, supra. Indeed,

Pulley leaves unanswered fundamental questions of (1) whether

appellate review must be "meaningful" and (2) whether states

that mandate a proportionality review may conduct that review

without any objective criteria being articulated or ostensibly

applied by the reviewing court.

This case presents these issues squarely. Peti-

‘tioner's individual situation is distinct from all Mississippi

defendants sentenced to death under its post-Furman death

penalty statute. Petitioner's prior record was spotless.

(Pet. at 2.) He was neither the triggerman nor the initiator

of the crime. (Pet. at 3.) Several Statutory mitigating cir-

V/

cumstances were established. (Pet. at 4-5.) In these aggre-

gate respects, petitioner differed from other persons receiving

the death penalty in Mississippi. (Pet. at Appendix 8.)

Yet, the Mississippi Supreme Court in its propor-

tionality review did not mention any of these circumstances.

No mention was made of how petitioner's individualized circum-

stances compared with others receiving the death penalty. No

reference was even made to the trial judge's sentencing report.

1/ At the same time, of the four aggravating circumstances

found by the jury, three were legally or factually suspect.

(Pet. at 5-6).

(Pet. at 24a.) The review was limited (a) to a summary para-

graph appearing (with slight variations) in Mississippi's last

Six death penalty decisions and (b) to a simple listing of post

1977 death penalty onsen”

Respondent does not dispute that the review below

was so limited, but instead cites twelve Mississippi cases and

contends that a proportionality sousen by this Court would show

petitioner's sentence not to be disproportionate. (Brief in

Opposition, at 17.) If such de novo review were appropriate,

the Annex to this Reply Brief @iscloses circumstances that

Gistinguish petitioner's situation from that of the defendants

in twelve cases cited by respondents. However, the only matter

now properly before this Court relates to be whether a state

Supreme court, required by statute to undertake a proportional-

ity review of a death sentence, must articulate and apply

objective criteria to assure that the review is meaningful.

Petitioner submits that if the question of minimum

Standards of appellate review are to be addressed in the con-

text of state-mandated proportionality reviews, the present

case is an appropriate one to resolve this important issue.

Respectfully en

V7, ,

Ufthnbkh de

Michael Sandler

(Counsel of Record)

Michael C. Miller

Felice Busto

STEPTOE & JOHNSON

Chartered

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 862-2061

ATTORNEYS FOR PETITIONER

2/ See “Comment: Constitutional Problems Concerning Certain

Ag ape Bp Circumstances Used for Capital Sentencing In

Mississippi," 53 Miss. L. J. 319 (1983).

-€6-

ll.

12.

ANNEX

Factors Distinguishing Petitioner's

Case From The Mississippi Death

Cases Relied Upon By Respondent

Smith v. State, 419 So.2d 563 (miss. 1982)

(triggerman, prior criminal record and previous

firing of deadly weapon)

Edwaroés v. State, 413 So.2d 1007 (Miss. 1982)

(triggerman and prior criminal record including

capital murder conviction)

Bullock v. State, 391 So.2d 601 (Miss. 1980)

(actively beat the victim)

*Reddix v. State, 381 So.2d 999 (Miss. 1980) (prior

criminal record including two armed robberies and two

kidnappings)

*Jones v. State, 381 So.2d 983 (Miss. 1980) (prior

Criminal record including armed robbery)

Culberson v. State, 379 So.2d 499 (Miss. 1979)

(triggerman, prior criminal record including armed

robbery and assault with intent to kill)

*Voyles v. State, 362 So.2d 1236 (Miss. 1978)

(triggerman)

*Irving v. State, 361 So. 2d 161 (Miss. 1978) (prior

criminal record including burglary)

*Washington v. State, 361 So.2d 161 (Miss. 1978)

(triggerman, prior criminal record)

*Bell v. State, 360 So.2d 1206 (Miss. 1978) (prior

criminal record including capital murder, two

robberies, two burglaries and assault with intent to

kill)

Evans v. State, 422 So.2d 737 (Miss. 1982)

(triggerman, prior criminal record and under life

sentence when murder committed)

Wheat v. State, 420 So.2d 229 (Miss. 1982)

(triggerman, prior criminal record including second

degree murder, assault with weapon and false

imprisonment)

.

Death sentence was subsequently vacated by federal court:

Reddix v. Thigpen, 554 F. Supp. 1212 (S.D. Miss.

1983); Jones v. Thigpen, 555 F. Supp. 870 (S.D. Miss.

1983); Voyles v. Watkins, 489 F. Supp. 901 (N.D.

1980); Irving v. Hargett, 518 F. Supp. 1127 (N.D.

Miss. 1981); Washington v. Watkins, 655 F.2d 1346,

1374 (5th Cir. 1981); Bell v. Watkins, 692 F.2d 999

(Sth Cir. 1982).

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of February,

1984, a copy of this Reply Brief On Petition For Writ of

Certiorari To The Supreme Court of the State of Mississippi was

mailed, postage prepaid, to Edwin Lloyd Pittman, Attorney

General, Post Office Box 220, Jackson, Mississippi 39205.

Michael Sandler