Amicus Curiae Brief — Texas v. McCullough

Supreme Court, US”

) FIBER

AUG 1 2 1885

No. 84-1198

Pn eS ee JR.

CLERK

|

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

—_—_—_

STATE OF TEXAS, PETITIONER

v.

SANFORD JAMES MCCULLOUGH

ON WRIT OF CERTIORARI TO THE COURT OF

CRIMINAL APPEALS OF TEXAS

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

‘ALAN I. HOROWITZ

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY ¥

QUESTIONS PRESENTED

1. Whether a presumption of vindictive sentencing

attaches when the trial judge grants the defendant’s

motion for a new trial, the defendant elects to be sen-

tenced by the judge, and the judge imposes a higher

sentence than that imposed by the jury at the first

trial.

2. Whether a presumption of vindictive sentencing

can be rebutted by reliance for an increased sentence

on new, objective information not known at the time

of the first sentencing, but relating to events antedat-

ing that sentencing.

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TABLE OF CONTENTS

Page

Interest of the United States _.............2......2eecceeeeeeeee seen 1

ELT ES RE 2

a I iis conidicntcbstcncncsdussbiccenistecibiedied 6

Argument:

The Texas court erred in ruling that the increased

sentence on retrial in this case violated due process.. 8

I. It is inappropriate to presume that the increased

sentence on retrial in this case was a product of

ER EE ee AI A HET SY OIE aE 9

A. When it is the sentencing judge who grants

the retrial, there is no reason to presume

that the burden of retrial will impel the

judge to sentence vindictively ..... pea Te Oe 9

B. The prophylactic rule of Pearce should not

apply where the first sentence is imposed by

a jury and the defendant elects to have his

sentence at retrial imposed by the judge........ 15

Il. A presumption of vindictiveness may be re-

butted if the increased sentence is reasonably

based on new, objective information not known

at the time of the first sentencing —...................... 20

RES SEUSS TS SE TSS ae Dc 28

TABLE OF AUTHORITIES

Cases:

peer v. Care, S60 UM. O08 ............................:......... 23

Blackledge Vv. Perry, 417 U.S. 21.0020... 9, 18,19

Bordenkircher v. Hayes, 434 U.S. 357 ..............---.... 14

Chaffin v. Stynchcombe, 412 U.S. 17 ........-..--.. passim

Cohens Vv. Virginia, 19 U.S. (6 Wheat.) 264 22, 23

Colten v. Kentucky, 407 U.S. 104 0.0000... 6, 10, 11, 12, 14,

16, 17, 18

Hardwick v. Doolittle, 558 F.2d 292 0.000. 15

(III)

IV

Cases—Continued : Page

Michigan V. Payne, 412 U.S. 47 .............-.----20.-0-------- 24

North Carolina v. Pearce, 395 U.S. 711 .................... passim

Ohio v. Johnson, No. 83-904 (June 11, 1984)........ 20

Patton v. North Carolina, 381 F.2d 636 _................. 22

Pennhurst State School & Hospital v. Halderman,

Sn es 23

Rice v. Simpson, 274 F. Supp. 116, aff’d, 396 F.2d

FO OO ee 23

Stone V. Powell, 438 U.S; 466 ..................----:.............. 23

Thigpen V. Roberts, No. 82-1330 (June 27, 1984)... 16

United States v. Coke, 404 F.2d 836 ......................... 27

United States v. Floyd, 519 F.2d 1031 _.......... 15, 18

United States v. Goodwin, 457 U.S. 368 _................. passim

United States v. Hawthorne, 532 F.2d 318 .............. 15, 18

United States v. White, 382 F.2d 445, cert. denied,

SE Pe I hace a bilthetbiicstdeddecbeale cabltiicisthitidbvassns 28

United States v. Whitley, 759 F.2d 327, petition for

cert. pending, No. 84-6980 _...............2.......22....-...- 15

Wasman v. United States, No. 83-173 (July 3,

TD -iclistitentsincittiniavediiagabiaitsiel 2, 11, 17, 19, 20, 23, 24, 25, 26

Williams V. Illinois, 399 U.S. 235 -........................... 17

Williams v. New York, 387 U.S. 241 ........002220222... 20, 25

Constitution, statutes and rule:

Sn I eect a a ccletennae 25

Amend V (Double Jeopardy Clause) ................. 21

Amend XIV (Due Process Clause) ..................... 20

Texas Penal Code Ann. (Vernon 1974) :

Se eciichdadhictidice biectiniiiniladatitcaahtdlniai A Atha hisi ntsctighentiis 2

ERNE catak Ste NOR ee EY EL 2

Tex. Stat. Ann. art. 37.07 (Vernon 1981 & Supp.

TUITE ciinitamsesiciecnpuassasisstoiaesiiphea tein titebeisiup adie ancitidilia ie iia 2

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1198

STATE OF TEXAS, PETITIONER

Vv.

SANFORD JAMES MCCULLOUGH

ON WRIT OF CERTIORARI TO THE COURT OF

CRIMINAL APPEALS OF TEXAS

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case involves an interpretation of the due

process holding of North Carolina v. Pearce, 395 U.S.

711 (1969), which generally applies to the federal

judicial system. The first question concerns whether

a presumption of vindictiveness should arise under

the circumstances here. While the precise facts here

cannot arise in the federal system because there is no

provision for jury sentencing, the decision in this case

can be expected to shed light on the more general

question of the applicability of Pearce where the sen-

tencing judge himself or herself grants a new trial.

The second question presented here—what type of in-

(1)

2

formation can be used to rebut a presumption of vin-

dictive resentencing—is fully applicable to the federal

criminal justice system. Indeed, the United States

recently briefed this issue in Wasman v. United

States, No. 83-173 (July 3, 1984). Accordingly, the

decision in this case is likely to have a significant im-

pact on federal prosecutions.

STATEMENT

1. Following a jury trial, respondent was convicted

of murder, in violation of Texas Penal Code Ann.

§ 19.02 (Vernon 1974). Pursuant to Tex. Stat. Ann.

art. 37.07 (Vernon 1981 & Supp. 1985) (set forth at

Pet. App. A19-A21), respondent elected to be sen-

tenced by the same jury that decided his guilt. The

jury imposed a sentence of 20 years’ imprisonment.

Thereafter, respondent filed a motion for a new trial,

alleging improper jury argument and improper cross-

examination by the prosecutor (J.A. 17-18). Ata

hearing on the motion, the State informed the judge

that it did not oppose the motion and would agree

to a new trial. The judge thereupon granted the

motion.

In December 1980, respondent was retried before a

new jury, but with the same judge presiding, and he

was once again convicted of murder. This time, how-

ever, respondent elected to be sentenced by the trial

judge, who imposed a sentence of 50 years’ imprison-

ment.’ Respondent moved for the entry of findings of

fact explaining the increased sentence, which the

judge did (Pet. App. A22-A24), although first ex-

pressing her conclusion that the prophylactic rule of

North Carolina v. Pearce, 395 U.S. 711 (1969), was

1 The maximum permissible sentence for non-capital murder

in Texas is 99 years’ imprisonment. Tex. Penal Code Ann.

§ 12.32 (Vernon 1974).

3

not applicable “because the defendant voluntarily

elected to have the jury, rather than the judge, set

punishment at the first trial” (Pet. App. A22).

The judge nevertheless went on to place on the

record certain findings in the event the appellate

court disagreed with her on the applicability of

Pearce. She relied principally on “newly developed

evidence” that was presented for the first time at the

second trial. The judge specifically focused on the

testimony of two new witnesses, Carolyn Sue Hollison

McCullough and Willie Lee Brown, which “directly

implicated the [respondent] in the commission of the

murder in question and showed what part he played

in committing the offense” (Pet. App. A22). The

judge found that their testimony “shed new light upon

the [respondent’s] life, conduct, and his mental and

moral propensities” and provided “insight as to * * *

[respondent’s] propensity to commit brutal crimes

against persons and to constitute a future threat to

society” (id. at A23). The judge also noted that she

learned for the first time at the second trial that

respondent had been released from prison only four

months before the crime occurred (ibid.). The judge

further observed that respondent had never ex-

hibited any signs of remorse upon retrial and never

“show[ed] this court any sign or intention of refrain-

ing from criminal conduct in the future” (id. at

A24). In addition, the judge stated that she would

have sentenced respondent to more than 20 years at

the first trial had respondent not elected to be sen-

tenced by the jury (7bid.).

2. The Court of Appeals for the Seventh Supreme

Judicial District of Texas affirmed respondent’s con-

viction but vacated his sentence, holding that the in-

crease violated North Carolina v. Pearce, supra (Pet.

4

App. Al-A7). Distinguishing Chaffin v. Stynchcombe,

412 U.S. 17 (1973), the court held that the increase

in respondent’s sentence at retrial gave rise to a pre-

sumption of vindictiveness because that sentence had

been imposed by a judge who knew of the first sen-

tence, rather than a jury. And the court ruled that

the presumption was not rebutted by the judge’s re-

liance on new information regarding respondent’s con-

duct prior to the first trial because Pearce states that

the increase must be based on “conduct on the part of

the defendant occurring after the time of the original

sentencing proceeding” (395 U.S. at 726 (emphasis

added) ). See Pet. App. A4-A7.’ Accordingly, the

court resentenced respondent to 20 years’ imprison-

ment, the sentence imposed by the jury at the first

trial (id. at A7). On motion for rehearing, the court

reaffirmed its holding that a presumption of vindic-

tiveness applied in this case, deeming it immaterial

that respondent’s new trial was granted by the trial

judge herself, rather than on appeal. Jd. at A8-A9.

2 The court added, however, that it viewed the cited lan-

guage in Pearce as unduly restrictive and that it led to an

unjust result here by requiring vacation of what was in fact

a non-vindictive, appropriate sentence (Pet. App. A7 n.2):

This case demonstrates the excessive scope of Pearce.

The trial judge filed detailed and valid reasons for the

heavier punishment and there is nothing in the record to

indicate that the increased punishment resulted from

vindictiveness. However, the reasons affirmatively sup-

ported by evidence are based on events occurring during

or after the crime but before the first trial. Although

those matters were not brought out at the first trial, they

cannot be used to increase punishment because none oc-

curred after the first trial. Thus, the Supreme Court has

established a conclusive presumption that the judge is

vindictive if increased punishment is not based on post-

first-trial acts by the defendant.

5

3. The Texas Court of Criminal Appeals granted

review on its own motion to determine the authority

of the court below to reform respondent’s sentence.

The court concluded that, as a matter of procedure,

the Court of Appeals should not have reformed the

sentence, but instead it should have remanded the

case to the trial court for resentencing. The court did

not question, however, the holding of the lower court

that respondent’s increased sentence violated his right

to due process. Pet. App. A10-A11.

On the State’s motion for rehearing, the Court of

Criminal Appeals addressed the question whether vin-

dictiveness should be presumed “where a jury assesses

punishment at the first trial, and a judge assesses

punishment upon retrial” (Pet. App. A12). The

court concluded that “the rule of Pearce is that a

greater sentence given by a judge after a new trial

is presumptively vindictive, and therefore illegal, un-

less the judge affirmatively bases the increased sen-

tence on identifiable conduct on the part of the de-

fendant occurring after the time of the original sen-

tencing proceeding” (Pet. App. A13-Al4 (footnote

omitted) ). In so ruling, the court explained that the

reasons given in Chaffin v. Stynchcombe, 412 U.S.

at 26-27, for excluding jury sentencing from the

Pearce rule were not applicable here (Pet. App. A15-

A16).*° The court added that it considered it irrele-

8 This Court identified three factors in Chaffin that distin-

guished jury sentencing from Pearce. Looking to those fac-

tors, the court below reasoned (Pet. App. Al6): (1) unlike

the ignorant jury in Chaffin, the trial judge here knew what

sentence had been imposed at the first trial; (2) unlike

Chaffin, “the second sentence [here] was in fact ‘meted out

by the same judicial authority whose handling of the prior

trial was sufficiently unacceptable to have required’ a new

trial” (quoting Chaffin, 412 U.S. at 27); and (3) unlike the

6

vant that respondent could have chosen to be sen-

tenced by a jury and in fact had done so at his first

trial, rejecting the State’s contention that the Pearce —

presumption does not attach when a different sentenc-

ing authority assesses the punishment on retrial.

SUMMARY OF ARGUMENT

I.

In the circumstances presented here, a presumption

that the sentence increase was motivated by vindic-

tiveness is not rational. In contrast to the prototypical

Pearce situation, where the sentencing judge is re-

versed on appeal because a different court has found

error in the handling of the first trial, the new trial

here was ordered by the sentencing judge herself.

Therefore, the retrial is neither a personal nor an

institutional affront to the sentencing court. The sen-

tencing court is not being directed “to do over what

it thought it had already done correctly” (Colten v.

Kentucky, 407 U.S. 104, 116-117 (1972)), nor is

there any basis for a motivation of “self-vindication”

(Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973)).

In short, there is simply no reason to presume that

the sentencer feels any resentment towards the de-

fendant for obtaining a new trial when the sentencer

has already gone on record as finding that a new trial

is fully justified. Hence, there is no reason to antici-

pate that the sertencer would act vindictively in sen-

tencing the defendant after the retrial.

Moreover, the first sentence here was imposed by a

jury, not by the judge who imposed the “increased”

sentence after a retrial. Where both sentences are

jury in Chaffin, the judge here was likely to be sensitive to the

institutional interests that might be served by discouraging

meritless appeals through increased sentences.

7

imposed by the same sentencing authority one would

normally expect that, in the absence of changed cir-

cumstances, the sentence after a retrial will be the

same as it was following the first trial. If it is in-

stead more severe, a rebuttable presumption of vin-

dictiveness makes considerable sense. If there are

valid reasons for the change in sentence, the judge

should be able to state them; in the absence of a

stated justification, it is not unreasonable to presume

that the motivation for the sentence increase is an im-

permissible one—retaliation for the defendant’s ex-

ercise of a procedural right. When the second sen-

tencer is different from the first, however, the most -

likely explanation for the sentence disparity is dif-

ferent sentencing philosophies of the two sentencers.

There has not really been any sentence “increase,”

just a different sentence. In this situation, it cannot

be said that the mere fact of a sentence increase

poses a “realistic likelihood of vindictiveness” (United

States v. Goodwin, 457 U.S. 368, 384 (1982) (inter-

nal quotations omitted) ) that ought to give rise to a

presumption of vindictiveness.

Finally, even if a reasonable apprehension of vin-

dictiveness could exist and justify application of the

Pearce presumption in the normal case, in which the

second sentencing is by a different judge, such an ap-

proach is entirely inappropriate here because the de-

fendant deliberately chose to place himself in the posi-

tion of which he now complains; he could have elected

to be sentenced by the jury, as he was at his first

trial, and thereby eliminated any possibility of vin-

dictive sentencing.

Il.

Assuming arguendo that a presumption of vindic-

tiveness is appropriate in this case, the court below

erred in holding that the presumption could be re-

8

butted only by reliance on events that occurred sub-

sequent to the first sentencing proceeding. While this

rule finds support in dictum in Pearce, it bears no

logical relationship to the policies underlying the

Pearce rule- The requirements of due process plainly

ought to be satisfied if the reasons given by the judge

for the sentence increase persuade a reviewing court

that there was a sound, non-vindictive basis for the

sentence. It is not apparent why these reasons can-

not include new information that comes to light for

the first time at the retrial but relates to conduct of

the defendant that occurred prior to the first trial—

for example, the discovery that the defendant has an

extensive criminal record.

ARGUMENT

THE TEXAS COURT ERRED IN RULING THAT THE

INCREASED SENTENCE ON RETRIAL IN THIS

CASE VIOLATED DUE PROCESS

In North Carolina v. Pearce, 395 U.S. 711 (1969),

this Court addressed the due process implications of

the possibility that defendants who successfully ap-

peal or collaterally attack their convictions may re-

ceive more severe sentences after retrial as a punish-

ment for exercising their rights. The Court con-

cluded that when a defendant receives a higher sen-

tence upon reconviction after a successful appeal than

he received after his first trial, the danger that the

increased sentence is a product of vindictiveness (i.e.,

intended to retaliate against him for the successful

exercise of his procedural rights or to discourage the

exercise of those rights by others in the future) is

sufficiently high that a prophylactic rule is appro-

priate to eliminate such vindictiveness. According'v,

the Court held that when a defendant successfully

9

challenges his conviction on appeal or collateral at-

tack, due process requires that a presumption of vin-

dictiveness attach to a more severe sentence at the

second trial and that such a sentence is invalid unless

the sentencing judge places on the record adequate

reasons that objectively justify the sentence increase.

395 U.S. at 723, 726. On several occasions since

Pearce the Court has confronted different sorts of

situations involving either sentence increas s or in-

creases in charges by the prosecutor and has consid-

ered the question whether those situations present a

sufficient “ ‘realistic likelihood of “vindictiveness” ’ ”

(United States v. Ge>dwin, 457 U.S. 368, 384 (1982), .

quoting Blackledge v. Perry, 417 U.S. 21, 27 (1974) )

that a presumption of vindictiveness is warranted.

In this case the court below erred in two distinct

respects. First, the possibility that an increased sen-

tence in the situation presented here is the product of

vindictiveness is so remote that a presumption of vin-

dictiveness plainly is not warranted. Second, assum-

ing that such a presumption were applicable, the court

took an unduly narrow view of the type of informa-

tion that may be relied upon by the sentencing judge

to justify an increased sentence and therefore rebut

the presumption of vindictiveness.

I. IT IS INAPPROPRIATE TO PRESUME THAT THE

INCREASED SENTENCE ON RETRIAL IN THIS

CASE WAS A PRODUCT OF VINDICTIVENESS

A. When It Is The Sentencing Judge Who Grants The

Retrial, There Is No Reason To Presume That The

Burden Of Retrial Will Impel The Judge To Sen-

tence Vindictively

While Pearce itself does not shed much light on the

matter, subsequent decisions have identified consider-

ations that are relevant in assessing whether there is

10

a sufficient likelihood of retaliatory motivation in a

given context to warrant a presumption of vindictive-

ness. These considerations, while supporting the ex-

istence of such a presumption in the traditional

Pearce context of retrial following reversal on ap-

peal, strongly suggest that there is no reason to pre-

sume vindictiveness in the situation presented here

and hence that a prophylactic rule barring an in-

creased sentence on retrial is not appropriate.

In Colten v. Kentucky, 407 U.S. 104, 112-119

(1972), the Court declined to extend the Pearce pre-

sumption to the context of a two-tier prosecution sys-

tem in which the defendant could appeal automati-

cally from a conviction in an inferior court and ob-

tain a new trial in a court of general jurisdiction.

The Court explained that Pearce did not hold that the

mere fact of reconviction and a higher sentence gave

rise to a presumption of vindictiveness, and it con-

cluded that there was no inherent danger that a

higher sentence at the second stage of a two-tier

prosecution would be motivated by vindictiveness.

The Court noted that, in contrast to Pearce, the court

imposing the higher sentence was a new one, “not the

court that is asked to do over what it thought it had

already done correctly” (407 U.S. at 116-117).

In Chaffin v. Stynchcombe, 412 U.S. 17 (1973), the

Court held that the Pearce presumption was not ap-

plicable even in the traditional setting of a retrial

following reversal on appeal, if the higher sentence

was imposed by a jury, because jury resentencing

posed no “real threat of vindictiveness” (id. at 28,

footnote omitted).* The Court explained that the

*In Pearce, the Court summarized its holding as requiring

a statement of reasons “‘whenever a judge imposes a more se-

vere sentence upon a defendant after a new trial” (395 U.S.

at 726 (emphasis added)). Both Colten and Chaffin make

ll

“first prerequisite for the imposition of a retaliatory

penalty”—knowledge of the prior sentence—was ab-

sent in the jury resentencing context (id. at 26). The

Court also identified two other factors present in

Pearce whose absence in the jury sentencing context

further diminished the possibility of vindictiveness in

the latter case. Where “the second sentence is not

meted out by the same judicial authority whose han-

dling of the prior trial was sufficiently unacceptable

to have required a reversal of the conviction,” the

sentencer has “no personal stake in the prior convic-

tion and no motivation to engage in self-vindication”

(id. at 27). And “the jury is unlikely to be sensitive .

to the institutional interests that might occasion

higher sentences by a judge desirous of discouraging

what he regards as meritless appeals” (ibid.; foot-

note omitted). In United States v. Goodwin, 457 U.S.

at 383, the Court reemphasized the significance of

these two factors in holding that a presumption of

vindictiveness is not warranted when the prosecutor

increases the charges after a defendant elects to be

tried by a jury. See generally Wasman v. United

States, No. 83-173 (July 3, 1984), slip op. 6-9.

Upon examination of these considerations, it is ap-

parent that a presumption of vindictive increase of

sentence should not attach when the retrial is ordered

by the sentencing judge. In this situation the sen-

clear that this is an overly broad statement of the Court’s

holding. Pearce imposes a prophylactic rule in the particular

situation presented to the Court there or a closely analogous

one—resentencing by the same judge at a retrial following

reversal on appeal or collateral attack. In other situations

where a new trial is held, such as in Colten and Chaffin, the

rule may not apply, depending upon the likelihood in the

particular situation that an increased sentence would be the

product of vindictiveness.

12

tencing court is not being asked “to do over what it

thought it had already done correctly” (Colten, 407

U.S. at 116-117); to the contrary, that court has al-

ready gone on record as agreeing with the defendant

that a retrial is appropriate. The sentencing judge

has not been criticized, even implicitly, by another

court for his handling of the first trial; he has suf-

fered no personal rebuke and accordingly, “unlike

the judge who has been reversed,” he has “no motiva-

tion to engage in self-vindication” (Chaffin, 412 U.S.

at 27).° The judge cannot feel unjustly burdened by

having to retry the case when he himself has ordered

the retrial; he could simply have denied the motion

for a new trial if he believed the defendant was not

entitled to it. By the same token, there is no “in-

stitutional interest[] [in] * * * discouraging * * *

meritless appeals” (ibid.; footnote omitted) that

might motivate an increased sentence when the sen-

tencing judge has already concluded that the appeal

(or new trial motion) in fact does have merit. Fi-

nally, the sentencing judge’s willingness to grant the

defendant’s request for relief strongly indicates that

he is disposed to treat the defendant fairly, and there

is no reason to presume that he will rely upon im-

permissible, vindictive factors in imposing sentence.

Moreover, apart from the fact that the sentencing

judge himself has recognized the need for a retrial, it

is relevant that the burden imposed upon the judicial

system by the grant of a new trial is usually con-

5 Where the basis of the defendant’s request for a retrial

is alleged excesses by the prosecutor, as in this case, rather

than an erroneous ruling by the presiding judge, it is even

less likely that the judge will treat the retrial as a personal

affront and be motivated to use his sentencing power to punish

the defendant.

13

siderably less than when a conviction is reversed on

appeal as in Pearce. In most cases where a new trial

is granted by the presiding judge, only a short time

has elapsed since the conclusion of the first trial.°

The case will still be fresh in the minds of the court

and the parties, and the burden on the judicial system

system as a whole, with respect to such matters as

recalling witnesses and reassembling evidence, is not

as severe as when a case is reversed on appeal long

after the trial. In short, “the institutional bias

against the retrial of a decided question that sup-

ported the decisions in Pearce and Blackledge”

(Guodwin, 457 U.S. at 383) is not nearly as strong

in this context.

Thus, with one exception, every relevant considera-

tion suggests that the situation presented here is like

Chaffin, and unlike Pearce, and therefore that it is not

appropriate to apply a presumption of vindictiveness

to a sentence increase on retrial. It is true that in

this case, unlike Chaffin, the judge who imposed the

more severe sentence was aware of the sentence im-

posed at the first trial. But it is manifest that this

fact alone does not justify a presumption of vindic-

tiveness. The Court has correctly characterized such

knowledge of the prior sentence as a “prerequisite”

for a vindictive sentence increase (Chaffin, 412 U.S.

at 26). A judge who wants to impose a higher sen-

tence on retrial in order to punish a defendant for

taking an appeal or discourage others from doing so

* For example, under Fed R. Crim. P. 33, new trial motions

must be filed within seven days of the verdict, unless the

motion alleges the discovery of exculpatory evidence, in which

case the motion must be filed within two years of the final

judgment. In the instant case, respondent’s first trial took

place in September 1980 and the retrial took place in Decem-

ber 1980 (Pet. App. A2).

14

needs to know what the original sentence was. But

granting that knowledge of severity of the original

sentence gives the sentencer the opportunity to in-

crease the sentence for vindictive reasons, this mani-

festly does not establish a sufficient basis for the im-

position of a presumption of vindictiveness (see

Goodwin, 457 U.S. at 384). The mere fact of knowl-

edge of the first sentence sheds no light at all on the

critical question—whether there is a reasonable likeli-

hood that an increased sentence is vindictively moti-

vated. Indeed, the Court has made it plain that

knowledge of the first sentence does not alone provide

a basis for establishing a presumption of vindictive-

ness. In Colten, the sentencing judge was aware of

the first sentence when he imposed a higher sentence.

See 407 U.S. at 118 n.14. And, of course, prosecutors

who increase charges are aware of the level of the

original charges, but their actions are not generally

presumed to be motivated by vindictiveness. See

Goodwin; Bordenkircher v. Hayes, 434 U.S. 357

(1978). There is simply no reason to expect that a

judge who grants a defendant a new trial will use

his sentencing power to punish the defendant for ex-

ercising his rights; accordingly, the Pearce presump-

tion of vindictiveness should not apply in that con-

text.’

7 The fact that no presumption of vindictiveness attaches

in the generality of cases does not “foreclose the possibility

that a defendant in an appropriate case might prove objec-

tively” that a sentence increase was motivated by a desire to

punish him for exercising his rights. See Goodwin, 457 U.S.

at 384. For example, if the same judge who sentenced a de-

fendant at his first trial sentenced him to a substantially higher

sentence after a retrial, with no apparent change in circum-

stances or other justification, that would likely provide an

15

B. The Prophylactic Rule Of Pearce Should Not Apply

Where The First Sentence Is Imposed By A Jury

And The Defendant Elects To Have His Sentence

At Retrial Imposed By The Judge

1. The Texas Court of Criminal Appeals rejected

the State’s argument that Pearce was. inapplicable

here because a different sentencing authority assessed

the punishment on retrial. The court correctly noted

that in Pearce itself different judges had presided

over the two trials. See Pet. App. A17-A18; see also

Chaffin, 412 U.S. at 41 n.4 (Marshall, J., dissenting).

And the lower courts generally have taken Pearce to

mean that the prophylactic rule applies even where

the second sentence is imposed by a different judge.

See, e.g., United States v. Whitiey, 759 F.2d 327, 329-

330 (4th Cir. 1985) (en banc), petition for cert.

pending, No. 84-6980; United States v. Hawthorne,

532 F.2d 318, 323 (3d Cir. 1976); United States v.

Floyd, 519 F.2d 1031, 1034-1035 (5th Cir. 1975).

The Court in Pearce, however, did not mention that

the second sentence was imposed by a different judge,

and it clearly did not focus on that fact. See Hard-

wick vy. Doolittle, 558 F.2d 292, 299 & n.3 (5th Cir.

1977). In light of the Court’s subsequent elucidation

of the considerations underlying Pearce, it seems

questionable at best for the prophylactic rule to apply

when the judge who imposes the more severe sentence

after retrial is not the judge who imposed the original

sentence.

The realistic likelihood of vindictiveness that gave

rise to a presumption in Pearce derives in large part

from the personal stake that a judge has in the pro-

evidentiary basis for a finding of vindictiveness; that is not

the same as presuming vindictiveness from the mere fact of

an increase, without any evidentiary basis.

16

ceedings that have been reversed on appeal. See

Goodwin, 457 U.S. at 383; Chaffin, 412 U.S. at 27.

When the authority that imposes the higher sentence

is different from the earlier sentencer, that personal

stake with its accompanying stimulus to retaliatory

motivation is absent, and hence the likelihood that the

sentence is the product of vindictiveness is consider-

ably diminished. See Thigpen v. Roberts No. 82-1330

(June 27, 1984), slip op. 4; Colten, 407 LS. at 116-

117.

More important, the fact that the second sentencer

is different provides a logical, non-vindictive reason

for the difference in sentence. When a judge imposes

one sentence on a defendant and then later, after a

successful appeal and a second trial, imposes a higher

sentence on the same defendant convicted of the same

offense, the result is a peculiar one that begs for an

explanation. Two possible explanations for the sen-

tence increase come to mind: either (1) the judge

has increased the sentence to retaliate for the defend-

ant’s exercise of his right to appeal and/or to dis-

courage such appeals in the future; or (2) new in-

formation has come to light subsequent to the first sen-

tencing proceeding that in the judge’s view warrants

a more severe sentence. In this situation, the pro-

phylactic rule of Pearce makes considerable sense.

The sentence is presumed to be motivated by vindic-

tiveness, but the judge may rebut the presumption of

vindictiveness by placing on the record rational, non-

vindictive, newly learned reasons for increasing the

sentence.

When the second sentence is imposed by a different

judge, however, the situation is completely different.

Judges are invested with wide discretion in sentenc-

ing, and the process is inherently quite subjective.

17

See, e.g., Wasman v. United States, slip op. 4; Wil-

liams v. Illinois, 399 U.S. 235, 243 (1970). The most

logical explanation for the sentence disparity is sim-

ply the different sentencing theories or approaches of

the respective judges. The higher sentence imposed

by the second judge most likely indicates that that

judge would have given a more severe sentence had

he or she presided at the first trial as well; this turn

of events surely redounds to the detriment of the de-

fendant, but that does not make the second sentence

vindictive or in any way violative of due process.

The sentence has not been “increased” in the sense

that it is when the sentencing authority remains the

same; the sentences are simply different. Generally

“it no more follows that [the second] sentence is a

vindictive penalty for seeking a [new] trial than that

[the first judge] imposed a lenient penalty.” Colten,

407 U.S. at 117.°

This is not to say that there is no possibility that

a new sentencer might impose a more severe sen-

tence at retrial because of a desire to punish a de-

fendant for taking an appeal. There are institutional

interests in limiting the retrial of apparently settled

8 In this case the sentencing judge stated her belief that the

20-year sentence imposed by the jury at the first trial was

unduly lenient (Pet. App. A24). The circumstances suggest

that this view was a reasonable one. Petitioner’s brief reveals

(at 6 n.1) that each of the other two participants in this

brutal murder was sentenced to a 50-year term of imprison-

ment. Indeed, the State apparently was willing to risk its

conviction and acquiesce in a new trial because of its view

that the first sentence was unduly lenient and that a second

sentencing authority would be likely to impose a higher sen-

tence (Pet. App. A4). (At that time, of course, the State and

the judge did not know that respondent would elect to be sen-

tenced by the judge rether than by the second jury.)

18

issues that may transcend the personal involvement

of particular judges. See Goodwin, 457 U.S. at 383.

But that possibility existed in Colten and was not

found sufficient to support the presumption of vindic-

tiveness. This is because where the second sentencer

is different, it is manifest that such a vindictive

motivation is a considerably less likely explanation

for the sentencing disparity than the simple fact that

different judges have different attitudes towards sen-

tencing. Indulging a presumption of vindictiveness

when a new sentencer imposes a more severe sentence

on retrial designates as the reason for the sentence,

unless rebutted, what is in fact an unlikely explanation.

Therefore, applying the prophylactic rule of Pearce

in this situation appears quite inconsistent with the

Court’s established principle that “ ‘the Due Process

Clause is not offended by all possibilities of increased

punishment upon retrial * * *, but only by those that

pose a realistic likelihood of “vindictiveness.” ’ ”

Goodwin, 457 U.S. at 375 (quoting Blackledge v.

Perry, 417 U.S. at 27). See especially United States

v. Hawthorne, supra; United States v. Floyd, swpra

(Pearce presumption applied even though second sen-

tencing judge deliberately insulated himself from

knowledge of prior proceedings).

2. In any event, even if it were deemed generally

appropriate to apply the prophylactic rule of Pearce

despite the fact that the higher sentence has been

imposed by a different sentencing authority, it is not

appropriate to do so on the facts of this case. To the

extent respondent was exposed to any danger of vin-

dictive sentencing it was solely as a result of his

choice of sentencer. Respondent could have avoided

any possibility of vindictive sentencing simply by

choosing to be sentenced by the jury, as he had done

19

at the first trial. See Chaffin v. Stynchcombe, supra.

Indeed, under the Texas system allowing jury sen-

tencing, the Pearce rule is not as a general matter

necessary to protect defendants in respondent’s posi-

tion against any “chilling effect” on their right to

seek a new trial that might arguably be caused by

the possibility of vindictive sentencing; ° the defend-

ant can eliminate any such risk by electing jury sen-

tencing.

In fact, it seems quite likely that respondent chose

to be sentenced by the judge at his retrial precisely

because he feared that a jury might impose—for

wholly legitimate, non-vindictive reasons—a more se-

vere sentence on him than he had received the first

time, and he believed that, by choosing to be sentenced

by the judge, Pearce would preserve his lenient sen-

tence as a maximum. This strategy perverts the due

process protection recognized in Pearce by using it as

® The Court has stated that the Pearce rule is designed to

protect against both actual vindictiveness and the reasonable

apprehension of vindictiveness that might deter a defendant’s

exercise of his right to challenge his conviction. Blackledge

v. Perry, 417 U.S. at 28. At the same time, it is clear that

Pearce does not protect against the “chilling effect” that may

result simply from the possibility of an increased sentence

based on non-vindictive reasons. See Chaffin, 412 U.S. at 29-

35. While there has been some disagreement about the scope

of the protection against the reasonable apprehension of vin-

dictiveness (see generally Wasman v. United States, supra),

it seems apparent that the two protections merge, as a prac-

tical matter, when assessing whether a presumption of vin-

dictiveness is warranted in a particular situation. If a situa-

tion does not present a “realistic likelihood of vindictiveness”

(see Goodwin, 457 U.S. at 384), then there is little danger of

either actual vindictiveness or the reasonable apprehension of

vindictiveness, and Pearce does not require the imposition of

a prophylactic rule presuming vindictiveness.

20

a sword rather than a shield. See Ohio v. Johnson,

No. 83-904 (June 11, 1984), slip op. 9. The Pearce

rule is designed to protect defendants against vindic-

tive resentencing, and it should not be applied in a

case like this, where it would serve no function other

than to secure a windfall for the defendant in the

form of an unduly light sentence.

In sum, under the circumstances here, where the

judge who imposed the more severe sentence on re-

trial did not impose the earlier, more lenient, sen-

tence, and where the second sentencing judge herself

granted the new trial motion, the possibility that the

more severe sentence was motivated by vindictiveness

is far too remote to support a rational presumption

that the sentence increase was in fact vindictive.

Such a rule would seriously undermine the policy of

rational sentencing, which depends on the sentencing

authority’s ability to consider all relevant informa-

tion and impose the sentence deemed most appropriate

in light of that information (see Wasman v. United

States, slip op. 4; Williams v. New York, 337 U.S.

241, 247 (1949)), while not advancing at all the

policies of the Due Process Clause.

II. A PRESUMPTION OF VINDICTIVENESS MAY BE

REBUTTED IF THE INCREASED SENTENCE IS

REASONABLY BASED ON NEW, OBJECTIVE IN-

FORMATION NOT KNOWN AT THE TIME OF THE

FIRST SENTENCING

Assuming arguendo that a presumption of vindic-

tiveness is appropriate in this case, the question arises

whether the reasons given by the judge for the sen-

tence increase suffice to rebut that presumption. The

court below held that the reasons given here—relat-

ing to new information that had come to light in con-

nection with the second trial—could not be considered

21

because Pearce permits reliance only on information

concerning events taking place after the first trial

(Pet. App. A13-A14; see also id. at A6-A7). There is

undoubtedly support for this position in the language

of Pearce, which stated in its summary of the pro-

phylactic rule that the presumption could be rebutted

only by “objective information concerning identifiable

conduct on the part of the defendant occurring after

the time of the original sentencing proceeding” (395

U.S. at 726) and earlier referred to “events subse-

quent to the first trial” (id. at 723). In our view,

however, Pearce should not be applied to establish a

broad, inflexible rule barring reliance upon newly

learned information that relates to events that oc-

curred prior to the first sentencing proceeding. To

the extent that Pearce sets forth such an inflexible

appreach, the rule is pure dictum that was not given

adequate consideration by the Court. In fact, such

an inflexible rule is at odds with the reasoning under-

lying Pearce and its progeny, and we submit that the

broad limitation stated in Pearce and relied upon by

the court below ought not to be uncritically accepted

here.

A. It cannot be doubted that the broad statement

in Pearce restricting the information that may be

used to justify a higher sentence on retrial, on which

the court below relied, was pure dictum.” In neither

10 Three of the eight Justices clearly joined in this dictum.

Justice White, concurring in part, specifically noted his dis-

agreement with it, stating that, in his view, due process per-

mitted a sentence increase on the basis of “any objective,

identifiable factual data not known to the trial judge at the

time of the original sentencing proceeding” (395 U.S. at

751). Justices Douglas, Marshall, and Harlan concurred in

part on the ground that the Double Jeopardy Clause prohibited

any increase in sentence on retrial (id. at 726-737; id. at 744-

22

Pearce nor its companion case did the State come

forth with any reason to justify the sentence increase

(see 395 U.S. at 726); hence, the presumption of

vindictiveness that the Court held applicable neces-

sarily required overturning the increased sentences,

even if there were no limitation on the type of rea-

sons that legitimately could rebut the presumption.

Moreover, it is surely accurate to say that in Pearce

the “possible bearing [of the prophylactic rule as

stated] on all other cases [was not] completely in-

vestigated.” Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 400 (1821). None of the briefs in the cases ad-

dressed the question of dispelling a presumption of

vindictiveness." Thus, in formulating the standard

set forth in Pearce, the Court was completely without

the “sharpen[ing of] the presentation of issues” pro-

vided by the adversary process, “upon which the court

751). These Justices did not specifically discuss the appro-

priate parameters of the Court’s due process holding, although

Justice Harlan expressed some doubt concerning the merit of

a distinction between events occurring after the first trial and

prior misconduct subsequently discovered (id. at 750 n.8).

Justice Black dissented from the Court’s due process holding

in Pearce, stating that he did not believe the Constitution

required any statement of reasons by the second sentencing

court (id. at 740-743).

11 The focus of the litigation in Pearce was on the propriety

of imposing an increased sentence at all. The States argued

that there was no constitutional bar to such an increase. The

respondents argued that in no circumstances could a sentence

be increased on retrial; this argument was based primarily on

the grounds that any increase would violate double jeopardy

or unconstitutionally burden the right to appeal. See Patton

v. North Carolina, 381 F.2d 636 (4th Cir. 1967). The parties

did not focus on the possibility of a middle ground, namely,

that a sentence increase would be permissible, but only under

certain circumstances.

— a

a a A

23

so largely depends for illumination of difficult consti-

tutional questions.” Baker v. Carr, 369 U.S. 186, 204

(1962). See also Pennhurst State School & Hospital

v. Halderman, No. 81-2101 (Jan. 23, 1984), slip op.

28 & n.28 (noting that jurisdictional question im-

plicitly decided in other cases remained open where

not briefed or discussed in those cases); Stone v.

Powell, 428 U.S. 465, 481 (1976). In these circum-

stances, it would run contrary to the Court’s normal

principles of decision to accept uncritically, in a case

where the issue is actually presented for decision, the

Pearce formulation that places a temporal limitation

on the type of evidence that may be considered by

the sentencing judge. See Cohens v. Virginia, 19 U.S.

(6 Wheat.) at 399.

Indeed, this Court’s own subsequent treatment of

the Pearce formulation indicates that the language

of that opinion is not necessarily to be construed in-

flexibly. In Goodwin, the Court, rather than repeat-

ing Pearce’s restrictive formulation, stated that the

presumption of vindictiveness “may be overcome only

by objective information in the record justifying the

increased sentence.” 457 U.S. at 374 (footnote omit-

ted). And in Wasman the Court held that the pro-

phylactic rule of Pearce should not be interpreted as

broadly as it is stated. Despite the fact that the

Pearce formulation states that only “conduct on the

part of the def- ‘ant” occurring after the first trial

can be consider. in dispelling the presumption of

2 See also 457 U.S. at 376 n.8 (noting that analogous Perry

presumption of prosecutorial vindictiveness can be “overcome

by objective evidence justifying the prosecutor’s action”) ;

id. at 386 (Blackmun, J., concurring in the judgment) (‘“‘prose-

cutor adequately explains an increased charge by pointing to

objective information that he could not reasonably have been

aware of at the time charges were initially filed’’).

24

vindictiveness (395 U.S. at 726), the Court held

unanimously that relevant information that did not

fit that description (entry of a conviction) could in

fact be relied upon to increase a sentence. The Court

found it unnecessary to reach our argument that

Pearce similarly should not impose a rigid temporal

limitation on the consideration of relevant sentencing

information, but it apparently regarded the question

as an open one. See Wasman, slip op. 13 n.*.* Ac-

cordingly, this issue is not foreclosed by Pearce.

B. The inflexible rule applied by the court below

does not logically advance the policies underlying

Pearce. Under the rationale of Pearce and its prog-

eny, the requirements of due process ought to be

satisfied if the reasons given by the judge for the

sentence increase provide a sound, non-vindictive

basis for any increased severity. The existence of a

newly learned, objective justification for a more se-

vere sentence would demonstrate to a reviewing court

that the sentencing court likely did not retaliate

against the defendant for the exercise of a legal right

and hence would undercut the validity of any pre-

sumption of vindictiveness. In particular, the require-

ment that the sentencing court’s reasons be placed on

the record subject to scrutiny by a reviewing court

effectively eliminates the risk that the increased sen-

tence was motivated, even subconsciously (see Good-

win, 457 U.S. at 377), by a desire to punish the de-

13 By the same token, in Michigan v. Payne, 412 U.S. 47

(1973), the State argued that the reasons given by the judge

for increasing the sentence on retrial, which related primarily

to new evidence concerning the crime brought out at the second

trial rather than events that happened after the trial (see

id. at 48 & n.1), satisfied Pearce. While the Court did not

reach this contention because of its retroactivity holding, it

apparently considered it to be an open question (id. at 49).

25

fendant for causing a retrial. Therefore, it would

seem that the Constitution should permit any objec-

tive “actual information not available at the first sen-

tencing proceeding to be set forth as a justification

for a higher sentence on retrial. Cf. Pearce, 395 U.S.

at 751 (White, J., concurring). This surely is con-

sonant with the long-accepted proposition that the

judge’s selection of an appropriate sentence is en-

hanced by “the possession of the fullest information

possible concerning the defendant’s life and charac-

teristics.” Williams v. New York, 337 U.S. at 247

(footnote omitted).

The theoretical basis underlying the presumption

of vindictiveness imposed in Pearce does not in any

way justify placing a temporal limitation on the type

of information that the judge may consider. No logi-

cal reason that advances the goal of insuring against

vindictive resentencing supports a distinction between

14 We recognize that not every factor that might conceivably

have been taken into account at the first sentencing provides

a sufficient justification for a sentence increase,thereby dispel-

ling any presumption of vindictiveness that attaches to a

sentence increase. In many cases, there will be some relevant

information adduced at the second proceeding that was not

available at the first, but the information will not necessarily

be of s Ticient importance to justify a sentence increase.

Because it is possible that a judge who does in fact increase a

sentence for vindictive reasons would be able to defeat the

protection of Pearce by hiding behind an assertion that such

new information justified the increased sentence, it is appro-

priate that a sentence increase where the Pearce rule applies

should be subject to exacting appellate review even though

an ordinary sentence would not be. The defendant should be

entitled to argue on appeal that the reasons given do not

reasonably justify the sentence increase and therefore that

the sentence increase lacks “ ‘constitutional legitimacy.’ ”

Wasman, slip op. 5 (quoting Goodwin, 457 U.S. at 374).

26

events that actually occur after the first sentencing

proceeding and events that occur earlier but are not

discovered until afterward. As the Court said in

Wasman, “[e]ven without a limitatior on the type of

factual information that may be considered, the re-

quirement that the sentencing authority * * * detail

the reasons for an increased sentence * * * enables

appellate courts to ensure that a nonvindictive ra-

tionale supports the increase” (slip op. 12).

Indeed, application of the limitation set forth in

Pearce can lead to absurd results that could not pos-

sibly have been intended by the Court. Suppose, for

example, that a defendant is convicted of burglary,

a non-violent, and apparently first, offense. He is sen-

tenced to a short prison term or perhaps placed on

probation. Following a successful appeal and a con-

viction on retrial, it is learned that the defendant has

been using an alias and in fact has a long criminal

record that includes other burglaries, several armed

robbery convictions, and a conviction for murder

committed in the course of a burglary. None of the

reasons underlying Pearce in any way justifies the

perverse result that the defendant receive no greater

sentence in light of this information than he origi-

nally received when he was thought to be a first of-

fender. Indeed, it is conceivable that a recidivist

statute would require that he be given a higher sen-

tence because of the prior convictions. Similarly, if a

defendant is given a fairly light sentence for con-

spiracy to murder because he is thought to have

played a relatively minor role in the conspiracy, and

then at a retrial new evidence shows that he in fact

was the primary force behind the conspiracy, it is

surely appropriate that he receive a more severe sen-

tence at the retrial. It cannot seriously be doubted

27

that in these hypothetical situations any presumption

of vindictiveness that arises from a more severe sen-

tence at retrial is convincingly dispelled. Due process

does not prevent the imposition of such a sentence.”

In sum, there is no relationship between the likeli-

hood of judicial vindictive sentencing and the date of

the events relied upon as a basis for imposing a more

severe penalty at retrial. As long as the judge iden-

tifies on the record facts that were not known at the

first sentencing proceeding and that bear on the de-

fendant’s culpability or his propensity to commit

crime, the judge shuuld be able to select a sentence

that takes into account the new information, even if

it is more severe than the first sentence. That is an

example of commendable, rational sentencing, not un-

constitutional, vindictive sentencing.

Therefore, the broad rule applied by the court be-

low to invalidate the sentence increase in this case—

namely, that a judge sentencing after a retrial can

never justify imposition of a more severe sentence by

relying on new information relating to events that

took place prior to the first sentencing proceeding—

is simply wrong. In the event the Court concludes

that a presumption of vindictiveness is warranted in

the situation presented here (but see Part I, supra),

the case should be remanded to the Texas court to

consider whether the factors identified by the sentenc-

ing judge reasonably justify the sentence increase.

% Significantly, several courts that anticipated this Court’s

decision in Pearce and found due process constraints on the

imposition of an increased sentence after a retrial did not hold

that a legitimate explanation for such a sentence was restricted

to events occurring after the first trial. In United States v.

Coke, 404 F.2d 836 (1968) (en banc), the Second Circuit in-

28

CONCLUSION

The judgment of the Court of Criminal Appeals of

Texas should be reversed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I. HOROWITZ

Assistant to the Solicitor General

PATTY MERKAMP STEMLER

Attorney

AUGUST 1985

voked its supervisory power to establish a rule requiring a

statement of reasons for an increased sentence at retrial.

The court noted, however, that these reasons could be based

upon newly discovered evidence relating to earlier events,

for example, new information that showed that the defendant

played a more significant role in the crime than first supposed.

See id. at 842-843, 845-846. The court explained that “[a]

defendant has no vested right in an inadequate record, at

least when the inadequacy results from factors beyond the

prosecution’s control.” Jd. at 846. Similarly, in the companion

case to Pearce, the district court vacated the unexplained in-

creased sentence imposed at retrial as a violation of due

process. The court stated, however, that a higher sentence

would be permissible so long as “there is recorded in the court

record some legal justification for it.” Rice v. Simpson, 274

F. Supp. 116, 121 (M.D. Ala. 1967) (footnote omitted), aff’d,

396 F.2d 499 (5th Cir. 1968), aff’d, 395 U.S. 711 (1969). See

also United States v. White, 382 F.2d 445, 449-450 (7th Cir.

1967), cert. denied, 389 U.S. 1052 (1968).

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