Amicus Curiae Brief — South Carolina v. Gathers

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No. 88-305

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

Petitioner,

@.=

DEMETRIUS GATHERS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

BRIEF OF THE SOUTH CAROLINA PUBLIC

DEFENDERS’ ASSOCIATION AND THE SOUTH

CAROLINA DEATH PENALTY RESOURCE

CENTER AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

H. PATTERSON MCWHIRTER DAVID I. BRUCK

President Richland County

South Carolina Public Public Defender

Defenders’ Association 1701 Main St.

119 East Main St. Columbia, SC 29201

Lexington, SC 29072 (803) 765-2592

(803) 359-5522

* JOHN H. BLUME

FRANKLIN W. DRAPER

S.C. Death Penalty

Resource Center

P.O. Box 11311

Columbia, SC 29201

(803) 765-0650

ATTORNEYS FOR

*Counsel of Record AMICI CURIAE

nr tec

No. 88-305

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

Petitioner,

DEMETRIUS GATHERS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

MOTION BY THE SOUTH CAROLINA PUBLIC

DEFENDERS’ ASSOCIATION AND THE SOUTH

CAROLINA DEATH PENALTY RESOURCE

CENTER AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

Pursuant to Supreme Court Rule 36.3,

the South Carolina Public Defenders’

Association and the South Carolina Death

Penalty Resource Center move for leave to

file the brief submitted herewith as

amici curiae. Counsel for the Respondent

has consented to the filing of the brief,

but counsel for petitioner would not give

timely consent.

The South Carolina Public Defenders’

Association, Inc., is a nonprofit

organization consisting of public

defenders and assistant public defenders

from the each of South Carolina’s sixteen

judicial circuits. Among the

Association’s objectives is to improve

the quality of criminal defense

representation for indigent persons in

South Carolina, including cases in which

the state seeks the death penalty.

Furthermore, the attorneys who comprise

the membership of the Public Defenders’

Association are involved in almost every

capital trial in South Carolina. S.C.

Code Sec. 16-3-26(A) (1988 Cum. Supp).

The South Carolina Death Penalty

Resource Center was created by the South

Carolina Bar for the purpose of assisting

appointed counsel in the representation

of indigent death-sentenced prisoners.

The primary goal of the Resource Center

is to improve defense representation in

capital cases by offering expert support,

legal guidance and technical assistance

to court-appointed counsel. The Resource

Center provides such assistance to

attorneys appointed at all stages of the

capital sentencing and appellate process,

from trial through federal habeas corpus

review. The Resource Center legal staff

also serves directly as counsel of record

in fourteen capital cases now pending in

the South Carolina state and federal

courts.

Because the membership of the South

Carolina Public Defenders’ Association

and the staff of the South Carolina Death

Penalty Resource Center are involved, to

one degree or another, in almost every

capital case in South Carolina, amici

believe that they have a broad

perspective on the questions presented in

this case which would be beneficial to

this Court. Furthermore, due to their

extensive involvement in providing

representation to persons against whom

the state seeks the death penalty, amici

have a special interest in helping to

ensure that the capital sentencing

process remains reasonably rational,

predictable and fair. This case will

decide whether the lives of convicted

offenders may be condemned or spared on

the basis of irrelevant, misleading and

unrebuttable "facts" concerning the

purported religious and civic attributes

of their victims. Because the answer to

this question may determine whether

capital sentencing proceedings will

remain focused on the offender and his

crime, or whether their focus will shift

_ to a confusing and bitter courtroom

battle over the value of the murder

victim’s life, the present case

implicates many of the most fundamental

concerns of the amici organizations.

For all these reasons, the South

Carolina Public Defenders’ Association

and the South Carolina Death Penalty

Resource Center believe that the filing

of this amici curiae brief is desirable

because it presents to the Court

significant information about the context

in which this case has arisen. The brief

is an amici curiae brief in the truest

sense. It provides the Court with a

unique perspective which differs from

those of the parties and will

substantially assist this Court by

providing it with a different and

important perspective from which to

evaluate the facts of this case. With

that perspective, the Court will be ina

better position to evaluate the

particular facts about South Carolina and

the detailed legal arguments which the

parties are presenting in their briefs.

Accordingly, the South Carolina Public

Defenders’ Association and the South

Carolina Death Penalty Resource Center

respectfully request the Court to grant

this motion for leave to file a brief as

amici curiae.

Respectfully submitted,

John H. Blume

S.C. Death Penalty

Resource Center

P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

Counsel of Record

for Amici Curiae

January 31, 1989

ESTIONS PRESENTED

Whether a murder victim’s purp-.ted

religious faith and good citizenship

provide a constitutionally permissible

basis upon which to sentence his murderer

to death.

II.

Whether the prosecutor violated

respondent’s due process rights by

offering the victim’s purported good

qualities as reasons to impose a death

sentence, under circumstances in which the

defendant was prevented by state law from

presenting countering evidence and

argument.

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE

BRIEF AS AMICI CURIAE

QUESTIONS PRESENTED .

TABLE OF CONTENTS

TABLE OF AUTHORITIES.

STATEMENT OF INTEREST OF

AMICUS CURIAE

OPINIONS BELOW.

STATEMENT OF JURISDICTION .

CONSTITUTIONAL PROVISIONS

INVOLVED. “a oe a ee

STATEMENT OF FACTS

SUMMARY OF ARGUMENT .

ARGUMENT. . .

I. THE PURPORTED RELIGIOUS

FAITH AND GOOD CITIZENSHIP

OF A MURDER VICTIM DO NOT

PROVIDE CONSTITUTIONALLY

PERMISSIBLE BASIS UPON

WHICH TO SENTENCE A CAPITAL

DEFENDANT TO DEATH .

A. The fact that the

physical evidence which

provided the opportunity

for the prosecutor’s

e £6 «

Page

summation was properly

introduced at the guilt

phase of respondent’s

trial is irrelevant to

the constitutional

issues before the

ll, ae a a ae

B. The prosecutor’s

appeal to sentence the

defendant to death on the

basis of his victim’s

religious and civic

attributes is constitu-

tionally intolerable

under any view of Booth . 26

C. Prosecutorial license

to use the alleged good

character of murder victims

as evidence in aggravation

of punishment will

necessarily give rise to

a constitutional right of

accused murderers to attack

the character and minimize

the social worth of their

OEM «cme ecéeeessne

D. The South Carolina

Supreme Court correctly

interpreted this Court’s

decision in Booth v.

Maryland in this and other

decisions .... 50

II. BECAUSE SOUTH CAROLINA LAW

PRECLUDED RESPONDENT FROM

INTRODUCING EVIDENCE REGARDING

THE VICTIM’S BAD CHARACTER AS A

SENTENCING CONSIDERATION, HIS

- iii -

DEATH SENTENCE WAS SECURED IN

VIOLATION OF THE DUE PROCESS

CLAUSE AS HE WAS DEPRIVED OF AN

OPPORTUNITY TO MEET AND REBUT

THE STATE’S ASSERTIONS .... 54

CONCLUSION. . .....+2+.2.-... 65

- iv -

Cases

Alabama State Federation of

Labor ¥._HcAgOry. 325 U.S. 450

(1945)...

, 463 U.S.

880 (1983) ane is

Booth v. Maryland, 482 U.S.

, 107 S.Ct. 2529 (1987).

Brady_y._Maxyiand, 373 U.S. 83

(1963)

Burger v. Kemp, 483 U.S. ,

107 S.Ct. 3114 (1987).

Caldwell _v. Mississippi, 472

U.S. 320 (1985). Pas ae

California v. Ramos, 463 U.S.

at 1006. a arer sy SoS See

Carpenter v. Lewis, 43 S.E.

881, 65 S.C. 400 (1902).

Cole v. Arkansas, 333 U.S.

196, 201 (1948). ee

, 416

elle GU os » we

, 455 U.S.

104 (1982) ae ee oe

, 456 U.S. 107

(1982) I ee

m , 458 U.S.

782, 801 (1982). —

, 392 U.S. 83

(1968)

, 408 U.S.

228 (1972) . _& &.4 *

, 430 U.S.

349 (1979) .-2 -é &- es

» 488 V.8.

153 (1976) ee ee

k, 401 U.S.

222 (1971) Ss ak es

.. BW @.8.

443 (1965) ee ay ee ee

, 428 U.S. 262

(1976) An Mr Gy Ge ar ae oe

Lockett v. Ohio, 438 U.S.

586, 604 (1978). ae

Mayes v. Evans, 80 S.C. 362,

61 S.E. 657 (1908) ,

, 481 U.S.

, 107 S.Ct. 1756 (1987).

» 52 S.C.

McKenzie v. Sifford

394, 29 S.E. 811 (1898).

» 255 S.C.

Mickle v. Blackman

136, 177 S.E.2d 548 (1970).

, 367 U.S. 497

(1961) ee ee eee

- vi -

Roberts v. Louisiana

633 (1977) .....

, 476

U.S. 1, 5, 9-12 (1986)

State v. Adams, 83 S.C. 149,

65 S.E. 220 (1909)

, 293 S.C. 391,

402, 360 S.E.2d 706 (1987),

cert. denied, 108 S.Ct. 734

(1988) .

State v. Butler, 277 S.C.

452, 290 S.E.2d 1, cert.

denied 459 U.S. 932 (1982)

State v. Gaskins, 284 S.C.

105, 326 S.E.2d 132, cert.

denied, 471 U.S. 1120 (1985)

State v. Gathers, 295 S.C.

476, 369 S.E.2d 140 (1988)

State v. Howard, 295 S.C. 462,

309 S.E.2d 132 (1988).

State v. Merriman

14 S.E. 394 (1892)

, 293 S.C. 515,

362 S.E.2d 13 (1987)

, 273 S.C. 646,

State v. Tyner

258 S.E.2d 559 (1979).

466 U.S. 668 (1980).

- vii -

, 431 U.

» 35 §.C. 607,

passim

44, 61

Thomas v. Lynch, 87 S.C. 44,

68 S.E.2d 817 (1910) .

Turner v. Murray, 476 U.S. 27

CUES) « « 6 6 e eee

United States v. Bagley, 473

U.S. 667 (1985). . i

Wainwright v. Sykes, 433 U.S.

72 (1977). oe © & & =m

Woodson v. North Carolina,

428 U.S. 280 (1976). :

Zant v. Stephens, 462 U.S. 862

S.C. Code §16-3-26(A).

28 U.S.C. §1257(3)

U.S. Const. amend. I

U.S. Const. amend. VIII.

U.S. Const. amend. XIV .

U.S. Const. art. III

- viii -

F ICI CURIAE

The South Carolina Public Defenders’

Association, Inc., is a nonprofit

organization consisting of public

defenders and assistant public defenders

from the each of South Carolina’s sixteen

judicial circuits. Among the

Association’s objectives is to improve

the quality of criminal defense

representation for indigent persons in

South Carolina, including cases in which

the state seeks the death penalty.

Furthermore, the attorneys who comprise

the membership of the Public Defenders’

Association are involved in almost every

capital trial in South Carolina. S.C.

Code Sec. 16-3-26(A) (1988 Cum. Supp).

The South Carolina Death Penalty

Resource Center was created by the South

Carolina Bar for the purpose of assisting

appointed counsel in the representation

of indigent death-sentenced prisoners.

The primary goal of the Resource Center

is to improve defense representation in

capital cases by offering expert support,

legal guidance and technical assistance

to court-appointed counsel. The Resource

Center provides such assistance to

attorneys appointed at all stages of the

capital sentencing and appellate process,

from trial through federal habeas corpus

review. The Resource Center legal staff

also serves directly as counsel of record

in fourteen capital cases now pending in

the South Carolina state and federal

courts.

Because the membership of the South

Carolina Public Defenders’ Association

and the staff of the South Carolina Death

Penalty Resource Center are involved, to

one degree or another, in almost every

capital case in South Carolina, amici

believe that they have a broad

perspective on the questions presented in

this case which would be beneficial to

this Court. Furthermore, due to their

extensive involvement in providing

representation to persons against whom

the state seeks the death penalty, amici

have a special interest in helping to

ensure that the capital sentencing

process remains reasonably rational,

predictable and fair. This case will

decide whether the lives of convicted

offenders may be condemned or spared on

the basis of irrelevant, misleading and

unrebuttable "facts" concerning the

purported religious and civic attributes

of their victims. Because the answer to

this question may determine whether

capital sentencing proceedings will

remain focused on the offender and his

crime, or whether their focus will shift

to a confusing and bitter courtroom

battle over the value of the murder

victim’s life, the present case

implicates many of the most fundamental

concerns of the amici organizations.

BRIEF OF AMICI CURIAE

SOUTH CAROLINA PUBLIC DEFENDERS’

ASSOCIATION AND SOUTH CAROLINA DEATH

RESOURCE CENTER

I LOW

The opinion of the South Carolina

Supreme Court affirming respondent’s

convictions, reversing his death

sentence, and remanding for a new

sentencing proceeding was filed on June

6, 1988, and is reported as State v.

Gathers, 295 S.C. 476, 369 S.E.2d 140

(1988).

TATEME RISDICTION

The Attorney General of the State of

South Carolina filed a timely petition

for writ of certiorari requesting that

this Court review the judgment of the

South Carolina Supreme Court. Certiorari

was granted on October 11, 1988. The

jurisdiction of this Court rests upon 28

U.S.C. §1257(3) and Supreme Court Rule

20.

NSTI NAL PROV NVOLVED

This case involves the Eighth

Amendment to the United States

Constitution which provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

This case also involves the Due

Process Clause of the Fourteenth

Amendment to the United States

Constitution which states, in pertinent

part:

(NJor shall any State deprive any

person of life, liberty, or

2 aetna without due process of

aw .

STATEMENT OF FACTS

Respondent Demetrius Gathers was

convicted of participating in the murder

of a man whom he and several associates

encountered in a Charleston, S.C.

municipal park. The victim, Richard

Haynes, was an unemployed 31-year-old

former mental patient who affected the

title of "Reverend Minister Haynes." The

state’s evidence at the guilt-or-

innocence phase of respondent’s trial

showed that Haynes, who passed his days

as an itinerant street preacher, went to

the park on the evening of the murder

carrying a bag containing several Bibles,

a plastic angel, a sheet, some personal

papers and a bottle of olive oil which he

used to anoint people. At the park, he

was robbed and fatally assaulted by

respondent and several other persons.

Police officers found Haynes’s rifled bag

and its contents at the scene of the

murder, and during the guilt-or-innocence

phase of respondent’s bifurcated murder

trial these items were offered as

evidence by the prosecution and admitted

without defense objection.

The issue before this Court arose

when, at the sentencing hearing which

followed petitioner’s conviction for

murder, the prosecutor extracted from

Haynes’ personal effects a printed prayer

and a voter registration card, and used

these exhibits as the evidentiary basis

for the following argument to the jury:

Among the many cards that Reverend

Haynes had among his belongings was

this card. It’s in evidence.

Think about it when you go back

there. He had this religious

items, [sic] his beads. He had a

plastic angel. Of course, he is

now with the angels now, but this

defendant Demetrius Gathers could

care little about the fact that he

is a religious person. Cared

little of the pain and agony he

inflicted upon a person who is

trying to enjoy one of our public

parks.

But look at Reverend Minister

Haynes’ prayer. It’s called the

Game Guy’s Prayer.

“Dear God, help me to be

a sport in this little

game of life. I don’t

ask for any easy place in

this lineup. Play me

anywhere you need me. I

only ask for the stuff to

give you one hundred

percent of what I have

got. If all the hard

drives seem to come my

way, I thank you for the

compliment. Help me to

remember that you won’t

ever let anything come my

way that you and I

together can’t handle.

And help me to take the

bad break as part of the

game. Help me to

understand that the game

is full of knots and

knocks and trouble, and

make me thankful for

them. Help me to be

brave so that the harder

they come the better I

like it. And, oh God,

help me to always play on

the square. No matter

what the other players

do, help me to come

clean. Help me to study

the book so that I’1ll

know the rules, to study

and think a lot about the

greatest player that ever

lived and other players

that are portrayed in the

book. If they ever found

out the best part of the

game was helping other

» @ «

guys who are out of luck,

help me to find it out,

too. Help me to be

regular, and also an

inspiration with the

other players. Finally,

oh God, if fate seems to

uppercut me with both

hands, and I am laid on

the shelf in sickness or

old age or something,

help me to take that as

part of the game, too.

Help me not to whimper or

Squeal that the game was

a frameup or that I had a

raw deal. When in the

falling dusk I get the

final bell, I ask for no

lying, complimentary

tombstones. I’d only

like to know that you

feel that I have been a

good guy, a good game

guy, a saint in the game

of life."

Reverend Minister Haynes, we know,

waS a very small person. He had

his mental problems. Unable to

keep a regular job. And he wasn’t

blessed with fame or fortune. And

he took things as they came along.

He was prepared to deal with

tragedies that he came across in

his life.

And there has been some talk about

this being a tragedy. Well let’s

get one thing straight. This isn’t

a tragedy. Tragedy is a birth

- 10 -

defect, something over which we

have no control. This is an

atrocity. This was a willful,

premeditated act of this defendant,

who is [sic] Charleston County, on

our shores, in this country, took

with the most eager pleasure the

life of another in the most

gruesome, hard to describe and hard

to believe circumstances. The

appropriate punishment in this case

is death.

You will find some other exhibits

in this case that tell you more

about a just verdict. Again this

is not easy. No one takes any

pleasure from it, but the proof

cries out from the grave in this

case. Among the personal effects

that this defendant could care

little about when he went through

it is something that we all

treasure. Speaks a lot about

Reverend Minister Haynes. Very

simple yet very profound. Voting.

A voter’s registration card.

Reverend Haynes believed in this

community. He took part. And he

believed that in Charleston County,

in the United States of America,

that in this country you could go

to a public park and sit ona

public bench and not be attacked by

the likes of Demetrius Gathers.

Weigh the aggravating circumstances

in this case. Look at it very

carefully. Calmly, rationally.

» @6 «

The trial jury sentenced respondent to

death.’ On appeal to the South Carolina

Supreme Court, respondent alleged, inter

alia, that his sentence should be

reversed because the prosecutor had

improperly injected the alleged good

‘Defense counsel did not attempt to

meet or rebut the state’s argument.

However, in light of established South

Carolina law, this is not surprising. In

State v. Gaskins, 284 S.C. 105, 326

S.E.2d 132, cert. denied, 471 U.S. 1120

(1985), decided several years before the

trial of this case, the South Carolina

Supreme Court held that a capital

defendant may not introduce evidence

regarding the bad character of the victim

in mitigation of punishment. See also

State v. Bell, 293 S.C. 391, 402, 360

S.E.2d 706 (1987), cert. denied, 108

S.Ct. 734 (1988) (recognizing that

Gaskins precludes admission of evidence

regarding victim’s bad character).

Because of Gaskins and other decisions of

the South Carolina Supreme Court,

respondent had no notice and could not

have anticipated that the prosecution

would argue that the victim’s

Christianity and good citizenship were

reasons that Gathers should be sentenced

to death.

- 12 «

character of the murder victim as a

sentencing consideration. The South

Carolina Supreme Court accepted this

contention, holding that the comments

violated this Court’s intervening

decision in Booth v. Maryland, 482

U.S. , 107 S.Ct. 2529 (1987). The

state supreme court concluded:

The solicitor’s extensive comments

to the jury regarding the victim’s

character were unnecessary to an

understanding of the circumstances

of the crime. Cf. State v. Bell,

293 S.C. 391, 360 S.E.2d 706

(1987). These remarks conveyed the

suggestion that appellant deserved

a death sentence because the victim

was a religious man and a

registered voter. Because the

solicitor’s remarks violated

appellant’s eighth amendment

rights, we reverse the death

sentence. Accord State v. Gaskins,

[284 S.c. 105, 326 S.E.2d 132,

denied, 471 U.S. 1120 (1985)]

(evidence of victim’s bad character

not admissible as mitigating

evidence in sentencing phase).

295 S.C. at 484; 369 S.E. 2d at 144; J.A.

at 66.

» 0 «

The Attorney General did not file a

petition for rehearing in the South

Carolina Supreme Court, nor did it move

to stay the remittitur returning

jurisdiction to the trial court. Some

Six weeks after the remittitur was duly

sent down from the South Carolina Supreme

Court, divesting that Court of all

further jurisdiction in this case, the

state filed a petition for writ of

certiorari in this Court.” In the

“Before proceeding to the merits of

the state’s constitutional arguments, it

should be noted that the failure of the

petitioner state of South Carolina to

request that the South Carolina Supreme

Court stay the remittitur, as required by

Rule 17 of that court’s rules,

effectively removes the power of this

Court to affect the judgment now under

review. On June 17, 1988, counsel for

both parties were advised that the

remittitur in this case had been sent to

the Clerk of Court for Charleston County.

The Attorney General of South Carolina

did not file its petition for writ of

certiorari until August 5, 1988, two

months after the decision of the South

Carolina Supreme Court and six weeks

-~ 14-

after the remittitur had been sent down

to the Charleston County Clerk of Court.

Therefore, while this Court may have

jurisdiction to review the decision of

the South Carolina Supreme Court, any

decision rendered in this case would be

merely advisory. This is so for the

following reasons.

South Carolina law is settled that

once the remittitur has issued, the state

supreme court is without power to alter,

amend, or clarify its previous decision.

See, e.g., Mickle v. Blackmon, 255 S.C.

136, 177 S.E.2d 548, 549 (1970) (after

remittitur has issued state supreme court

has no jurisdiction); see also Thomas v.

Lynch, 87 S.C. 44, 68 S.E.2d 817 (1910)

("when the remittitur has been properly

sent to the Court below, the Supreme

Court loses jurisdiction, and thereafter

neither the Court, nor any justice

thereof, can make any order in the

case"); State v. Adams, 83 S.C. 149, 65

S.E. 220 (1909) ("this Court has held

that its control of the judgment ends

when the remittitur has been sent down")

Mayes v. Evans, 80 S.C. 362, 61 S.E. 657

(1908) ("the remittitur having been sent

down, this court has no jurisdiction").

In fact, the South Carolina Supreme Court

lacks even the power to entertain a

motion to recall the remittitur after the

remittitur has been sent to the trial

court. Carpenter v. Lewis, 43 S.E. 881,

65 S.C. 400 (1902); McKenzie v. Sifford,

52 S.c. 394, 29 S.E. 811 (1898); State v.

Merriman, 35 S.C. 607, 14 S.E. 394, 395

(1892). Thus because no motion to stay

the remittitur was filed by petitioner

- 15 -

and because the remittitur has been sent

down and has been properly filed in

Charleston County, the state supreme

court is without power to recall the

remittitur, or to modify its previous

decision in any other way.

The failure of the petitioner Attorney

General to comply with established state

procedure to stay the remittitur pending

the filing and disposition of the

petition for certiorari renders any

decision that this Court might ultimately

render merely advisory. See generally

Engle v.- Isaac, 456 U.S. 107 (1982);

Wainwright v. Sykes, 433 U.S. 72 (1977);

nry v , 379 U.S. 443

(1965). The effect of the state’s

procedural default is that, even were the

judgment of the South Carolina Supreme

Court to be reversed by this Court, the

state supreme court would be powerless on

remand to alter or amend its previous

judgment in conformity with this Court’s

Opinion. In short, respondent’s

entitlement to a new trial now rests on

an adequate and independent state ground

arising from petitioner’s procedural

default in failing to move to stay the

remittitur. The final judgment of the

South Carolina Supreme Court granting

respondent a new sentencing trial has

been filed in the lower court, and

pursuant to state law must be enforced.

Thus regardless of what conclusion this

Court would ultimately reach as to the

merits of the questions presented,

Demetrius Gathers must and will receive a

new sentencing trial.

"[T]he oldest and most consistent

» 1 «

petition, the state urged that Booth

should not be held to extend to

prorecutorial comment on evidence

properly admitted at the guilt phase of a

capital trial, or in the alternative that

Booth should be overruled. Certiorari

was granted on October 11, 1988.

SUMMARY OF ARGUMENT

Far from showing why Booth v. Maryland

thread in the federal law of

justiciability is that federal courts

will not give advisory opinions." Flast

v. Cohen, 392 U.S. 83 (1968). “his rule

emerges from the case and controversy

requirement of Article III of the

Constitution. In order for a claim to be

justiciable pursuant to Article III, the

case "must present a real and substantial

controversy which unequivocally calls for

adjudication of the rights" asserted.

Poe v. Ullman, 367 U.S. 497, 509 (1961)

(Brennan J., concurring). As a corollary

principle, this Court will not decide

"abstract, hypothetical or contingent

questions."

, 325 U.S. 450, 461

(1945). Thus to adjudicate a case which

does not present a real and substantial

controversy would call for this Court to

issue an advisory opinion.

« 7 «

should be limited or overruled, this case

demonstrates why the least controversial

aspect of Booth--its exclusion of the

“social worth" of a murder victim as a

capital sentencing consideration--was

correctly resolved. Indeed, the facts of

this case show why a retreat from this

principle as enunciated in Booth would

convert the capital sentencing process

into a demoralizing tangle of

emotionally-charged irrelevancies. The

prosecutor’s emotional appeal for a death

sentence based on his depiction of the

murder victim as a devout Christian and a

good citizen violated the Eighth

Amendment because: (a) it diverted the

jury’s attention from the facts of

responcent’s crime, his character and

record, and his personal moral

blameworthiness; (b) it was itself

o OD «

without fair support in the evidence; (c)

it was by its nature difficult if not

impossible to rebut; and, (d) it was

injected into the proceedings despite the

fact that South Carolina law had

effectively assured respondent and his

counsel that he need not be prepared to

rebut such evidence, and indeed precluded

him from mounting such a rebuttal. The

solicitor’s argument thus violated both

the Eighth Amendment requirement that any

decision to impose death as punishment be

free from the influence of arbitrary or

irrelevant factors, Greqg v. Georgia,

Caldwell v. Mississippi, and the

elementary due process principle that no

defendant be condemned on the basis of

facts that he is not permitted to explain

or rebut. Gardner v. Florida.

e 0 «

Whatever the superficial appeal of

petitioner’s present claims, they would,

if accepted, require this Court to

recognize and enforce a constitutional

right of capital defendants to attempt to

"mitigate" their crimes by establishing

that their victims were themselves people

of bad or weak character, or that they

held unpopular political or religious

views. See Booth v. Maryland, 107 S.Ct.

at 2541 (White, J., dissenting). Such

character assassination of the memories

of murdered persons would also become one

of the unavoidable duties of competent

defense counsel in capital cases,

Strickland v. Washington, and yet another

burden to be borne by the families and

friends of the victim. Indeed, the due

process principles of Brady v. Maryland

would in many cases impose upon the

- 20 -

prosecutor an affirmative duty to assist

the defense by providing information

which the defense could use to besmirch

the memory of the victim.

It was surely for such reasons as

these that the South Carolina Supreme

Court held, some two years before

respondent’s trial that the alleged bad

character of a murder victim does not

constitute mitigating evidence--and thus

is not admissible--in a capital

sentencing proceeding. State v. Gaskins.

In view of Gaskins, respondent was

powerless to rebut or respond to the

prosecutor’s devastating attack, and thus

the “elemental due process requirement

that a defendant not be sentenced to

death on the basis of information which

he had no opportunity to deny or

explain." Gardner v. Florida. For these

e © «

reasons, the South Carolina Supreme

Court’s application of Booth and its own

precedent to vacate respondent’s death

sentence should be upheld.

I. THE PURPORTED RELIGIOUS FAITH

AND GOOD CITIZENSHIP OF A MURDER

VICTIM DO NOT PROVIDE A

CONSTITUTIONALLY PERMISSIBLE BASIS

UPON WHICH TO SENTENCE A CAPITAL

DEFENDANT TO DEATH.

Before discussing the Eighth Amendment

and due process issues presented by the

prosecutor’s closing argument in this

case, a word should be said about

petitioner’s efforts to obscure these

issues by its unrelenting emphasis on the

= i

fact that the religious tract and the

voter’s registration card--which prov’ ded

the springboard for the prosecutor’s

summation--were properly introduced at

the guilt-or-innocence phase of

respondent’s trial. Brief of Petitioner

at 27, 33, 45. Petitioner correctly

points out that the Victim Impact

Statement found unconstitutional in Booth

was introduced at the sentencing phase of

the trial as evidence in aggravation of

punishment, whereas the victim’s personal

effects here were admitted as part of the

state’s proof of guilt. But this

difference between Booth and the present

case is without logical or constitutional

significance. In arguing that the

circumstances under which the victim’s

belongings were admitted should be held

to immunize the prosecutor’s subsequent

= -

exploitation of that evidence from Eighth

Amendment attack, petitioner has lost

sight of the elementary principle that

evidence in a criminal trial may be

admissible for one purpose but not for

another. See, e.g., Harris v. New York,

401 U.S. 222 (1971) (Miranda-violative

confession may be used to impeach

defendant’s trial testimony, but not as

substantive proof of his guilt). A

murder victim’s race, his nationality or

ethnic background, his political beliefs

and his religion may all be admissible in

proving the defendant’s guilt, since such

characteristics might be necessary to

prove the victim’s identity, to set the

scene of the crime, or even to show the

defendant’s motive to commit murder. But

it is self-evident that the presence of

such evidence in the trial record does

» 26 «

not authorize a prosecutor to urge the

sentencing authority to condemn the

defendant to death because of the

victim’s race, McCleskey v. Kemp, 481

U.S. , 107 S.Ct. 1756 (1987), or his

political or religious beliefs. See Zant

v. Stephens, 462 U.S. 862, 888 (1983)

(state may not attach “aggravating” label

to constitutionally-protected status,

beliefs or conduct). That the murder

victim’s religious artifacts and voter

registration card were properly before

the jury at the guilt-or-innocence phase

of respondent’s trial is simply

irrelevant to the question which this

Court must answer: whether the

prosecutor’s exploitation of these

exhibits in order to urge imposition of a

death sentence based on tenuous

inferences concerning the victim’s

» 2a

religious and civic character violated

the Eighth Amendment. For the reasons

that follow, amici submit that the answer

to this question is yes.

In Booth v. Maryland, 482 U.S. __,

107 S.Ct. 2529 (1987), this Court held

that evidence regarding the personal

characteristics of a murder victim and

the impact of his murder on his family

and friends are normally inadmissible in

aggravation of a capital defendant’s

punishment. The Booth majority concluded

that this type of evidence created an

impermissible risk that the decision to

impose the death penalty would be based

upon factors unrelated to the defendant’s

moral blameworthiness. 107 S.Ct. at

» BB «

2533.

Booth was decided by a closely and

sharply divided Court. But the holding

of Booth upon which the majority and

dissenting Justices disagreed is not the

one applied by the South Carolina Supreme

Court in this case. The primary question

on which the Court divided in Booth

concerned the constitutional validity of

a statutory provision for informing the

sentencing jury of the impact of the

murder on the victim’s family and

community. 107 S.Ct. at 2539-2541

(White, J., dissenting); id. at 2541-2542

(Scalia, J., dissentinc!. Booth’s other

holding--that a death sentence may not

turn on the perceived standing or

character of the murder victim himself--

occasioned no evident disagreement.

Indeed, the principle that the law will

e 39 -

not apportion punishment according to a

Social gradation or hierarchy of victims

is so elementary a rule of due process

and equality under the law as to have

occasioned little discussion in either

the Booth majority or dissenting

Opinions.

It is perhaps for this reason that the

petitioner’s brief attempts to obscure

rather than defend what the prosecutor

actually did in his summation. According

to the state, the Prosecutor’s prolonged

and impassioned emphasis on what he

implied to be the murder victim’s

religious beliefs and Civic-mindedness

was in reality no more than a discussion

of the victim’s vulnerability to his

assailants. This recasting of the

prosecutor’s summation is utterly without

Support in the record. The fact that the

-~ 28 -

victim was attacked while in possession

of religious artifacts may have been in

some sense a circumstance of the crime.

But the prosector’s explicit and

emotional appeal for a death sentence

based on tenuous inferences about the

victim’s personal religious faith

revealed nothing about either the murder

or the murderer, and petitioner’s

insistence to the contrary may fairly be

described as frivolous.

Petitioner’s protestations

notwithstanding, those portions of the

prosecutor’s summation condemned by the

South Carolina Supreme Court in this case

contain the very defect which even the

Booth dissenters would have found

unconstitutional. Just as "[i]t is no

doubt true that the State may not

encourage the sentencer to rely ona

» £2

factor such as the victim’s race in

determining whether the death penalty is

appropriate," Booth, 107 S.Ct. at 2540

(White, J., dissenting), it is equally

obvious that the constitution forbids

such encouragement based on the victim’s

religious faith or his participation in

Civic or political activity. Indeed, it

was precisely the absence of such

strelevant or invidious appeals by the

prosecutor in Booth, combined with

Maryland’s express legislative

authorization of victim impact evidence

under state law, which led four members

of the Court to vote to uphold the

admissibility of such evidence. But had

the prosecutor in Booth exploited the

legislatively-authorized victim impact

evidence in order to fashion an appeal

for death based on the victims’ allegedly

» De

majoritarian religious beliefs or their

political activities, reversal would have

been required under the views expressed

by the dissents no less than those of the

majority.°

3at two points in its brief,

petitioner suggests that the victim

characteristics rejected as sentencing

considerations by the South Carolina

Supreme Court in this case are analogous

to such factors as whether "a victim was

the President, a mayor, or a police

officer whose loss clearly affected

society," Brief of Petitioner at 40, or

whether the victim was elderly, weak or

disabled. Id. at 46, 56. These

comparisons are spurious. The fact that

a murder victim was a government official

or a police officer killed in the line of

victim is unquestionably one which may be

considered in aggravation of the

murderer’s punishment. Roberts v.

Louisiana, 431 U.S. 633 (1977). This is

so both because such crimes implicate

society’s interest in deterring attacks

on those charged with carrying out

essential tasks for the common good, and

because the intentional killing of such

public servants may fairly be seen as

especially morally reprehensible,

involving as it does an indirect attack

upon society as a whole. Similarly, both

deterrence and retribution may be served

by enhancing the penalty for murders of

e 9 «

The Booth Court’s firm and unanimous

rejection of invidio.s victim-based

appeals for death is firmly grounded in

established Eighth Amendment

jurisprudence. Since Gregg, the Court

has repeatedly emphasized that a capital

sentencer’s life or death decision must

turn on the defendant’s "personal

responsibility and moral guilt." nmun

vy. Florida, 458 U.S. 782, 801 (1982). In

order for the sentencer to properly

assess the defendant’s moral

especially vulnerable victims, such as

the very young, the disabled, and the

elderly. But the fact that a murder

victim’s official duties or special

vulnerability may be proper sentencing

considerations in no way justifies

appeals for a death sentence based on

such characteristics as a victim’s

allegedly faithful adherence to orthodox

religious views, see U.S. const. amend. I

(prohibiting establishment of religion),

and petitioner’s effort to confuse these

two very different issues is wholly

without merit.

- 32 -

blameworthiness, the focus of the penalty

phase of a capital trial should be on the

“relevant facets of the character and

record of the individual offender" and

"the circumstances of the particular

offense." Id. at 798; see also Woodson

v. North Carolina, 428 U.S. 280, 304

(1976) (opinion of Stewart, Powell and

Stevens, JJ.); California v. Ramos, 463

U.S. at 1006; Lockett v. Ohio, 438 U.S.

586, 604 (1978) (plurality opinion);

Greqg, 428 U.S. at 189 (opinion of

Stewart, Powell and Stevens, eS

‘phrased somewhat differently, this

Court has stated that at the penalty

phase of a capital trial the jury must

make an “individualized determination of

whether the defendant in question should

be executed, based on the characteristics

of the individual and the circumstances

of the crime." Zant v. Stephens, 462

U.S. 862, 879 (1983); Eddings v.

Oklahoma, 455 U.S. 104, 112 (1982).

» Me

In addition to holding that a death

sentence cannot be influenced by

arbitrary factors, this Court has also

recognized that a sentence of death

cannot be imposed on invidious grounds

such as race, religion, class or wealth,

or some other constitutionally suspect

criterion. See Zant v. Stephens, 462

U.S. at 885; Furman v. Georgia, 408 U.S.

228, 249-51 (1972) (Douglas, J.,

concurring). While the Booth Court

divided over the magnitude of the risk

that Maryland’s Victim Impact Statement

procedure would cause sentencing juries

to consider such invidious factors, no

member of the Court suggested that actual

consideration of such factors could ever

be deemed constitutionally permissible.

Moreover, the Court has recognized that

the capital sentencing decision is

- 34 -

peculiarly susceptible to the play of

arbitrary factors such as the race of the

defendant and victim. Turner v. Murray,

supra.” For all of these reasons, there

is no basis whatsoever to question the

continued vitality of Booth’s recognition

that all victims are inherently equal

before the law, and that no death

sentence may be imposed upon the basis of

a sentencing jury’s belief that the

‘This is especially true in the

South, where the majority of capital

cases arise. Permitting the

characteristics of the victim to be

considered by the jury in its decision

whether to sentence a defendant to death

will, in many cases involving white

victims and black defendants, be to

sanction the consideration of race in the

capital sentencing process. The

interjection of race may not be overt.

But unconscious considerations of color

will inevitably arise when the jury is

expressly invited to base its sentencing

decision on what it deems to be the

relative social worth of the murder

victim and the convicted defendant in a

capital case.

—

victim was especially religious,

“saintly,” or politically orthodox.

Any doubt as to the correctness of the

Court’s holding in Booth that a capital

sentencer’s life-or-death decision should

not "turn on the perception that the

victim was a sterling member of the

community rather than someone of

questionable character,” 107 S.Ct. at

2534, may be dispelled by considering the

practical effect of a contrary holding.

As Justice White acknowledged in his

Booth dissent, there is "“[n]lo doubt

[that] a capital defendant must be

» 2B «

allowed to introduce relevant evidence in

rebuttal to a victim impact statement.”

107 S.Ct. at 2541. While this

observation was made during a discussion

of the admissibility of evidence

concerning the effect of a murder on the

family and community of the victims,

there can also be no doubt that the same

right of rebuttal would arise from any

effort to persuade a jury to sentence a

defendant to death because of the good

personal qualities of the murder victim.

This case demonstrates, however, just how

problematic such a right of rebuttal

would actually prove to be. Here, for

example, the prosecutor’s portrayal of

the victim as a religious "saint in the

game of life," should (but under South

Carolina law did not, see infra at 54-64)

entitle the defendant to an opportunity

= -

to show that the victim’s religious faith

was actually the psychotic and grandiose

religious ideation of a chronic

schizophrenic. By the same token, the

voter registration card which the

prosecutor held out as evidence of the

victim’s commitment to his community may

just as easily have been obtained by the

victim in order to sell his vote for a

few dollars each election day. And if

the prosecution was entitled to offer the

former inference as a reason to sentence

Mr. Haynes’ killer to death, the

defendant was constitutionally entitled

to investigate and attempt to prove the

latter as a reason why his own life

should be spared.

There is nothing unusual about such

doubts concerning the character of a

murder victim, and once the courthouse

—

door is opened to them, they will arise

in a substantial number of cases. Was a

murdered storeowner known to use racial

epithets? Did he discriminate by race in

hiring or credit? Was a murdered

minister a homosexual? Did an ambushed

police officer have a reputation for

harassing black or Hispanic citizens?

Was Victim A a carrier of the AIDs virus,

Victim B a secret collector of

pornographic magazines, or Victim Ca

survivor of a suicide attempt or a

cocaine overdose? Assuming that none of

these facts about a murder victim were

known to the killer or directly related

to the crime itself, it is clear that

they are utterly irrelevant to the

defendant’s moral blameworthiness. But,

in many cases, such facts might

nevertheless modulate the jury’s horror

- 39 -

or outrage about the crime, and could

well spell the difference between a

sentence of life and one of death.

Recent South Carolina cases provide

some revealing examples of where such

diversions lead. In State v. Gaskins,

the defendant was convicted in the

murder-for-hire of a Death Row inmate,

Rudolph Tyner. In mitigation of his

punishment, the defendant sought to

publish to the jury his victim’s own

confession to the double robbery-murder

which had landed him on Death Row. See

State v. Tyner, 273 S.C. 646, 258 S.E.2d

559 (1979). Upholding the trial judge’s

refusal to admit this proof of the

victim’s bad character, the South

Carolina Supreme Court held that evidence

of a murder victim’s bad characteristics

are not admissible at the penalty phase

» @ «

of a capital trial. Gaskins, 284 S.C. at

128; see also State v. Bell, 293 S.C.

391, 402, 360 S.E.2d 706 (1987), cert.

denied, 108 S.Ct. 734 (1988) (recognizing

that Gaskins precludes admission of

evidence regarding victim’s bad

character).

There is no doubt that this holding of

Gaskins underlay the state supreme

court’s disapproval of the prosecutor’s

remarks in this case. Although the state

court began its discussion of the issue

by citing Booth’s Eighth Amendment

holding, the court also expressly relied

on its own decision in Gaskins, and

summarized Gaskins as holding that

“evidence of [a] victim’s bad character

{is] not admissible as mitigating

evidence” in the sentencing phase of a

capital case. J.A. at 66.

e @ «

Nor was Gaskins the only case prior to

Gathers in which the South Carolina

Supreme Court had had occasion to

consider the extent to which character-

of-victim evidence “’shift[{s] the focus

of the sentencing hearing away from the

defendant."’ State v. Gathers, 295 S.C at

483, J.A. at 66 (quoting Booth v.

Maryland, supra, 107 S.Ct. at 2535). By

the time that it reached this conclusion

in Gaskins, the state court had reviewed

trial records of cases such as State v.

Horace Butler, 277 S.C. 452, 290 S.E.24

1, cert. denied 459 U.S. 932 (1982). In

Butler, the defendant was convicted of

raping and murdering an eighteen year-old

girl. The evidence revealed that the

Gefendant and the accused were complete

strangers before their fatal encounter.

During the course of the trial, however,

» @ «

defense counsel sought to bring to the

jury’s attention the fact that the victim

had severe mental and emotional problems

and had tried to kill herself on at least

two occasions. Counsel also attempted to

introduce evidence that the victim had

been, while intoxicated, at fault in an

automobile accident which resulted in the

death of another party. Counsel further

wished to introduce evidence in this case

involving the alleged kidnapping, murder

and rape of a young white woman by a

black man that the victim had been known

to frequent a bar, patronized almost

exclusively by black persons, where

illegal drugs were sold, and that the

victim had bought drugs there. Finally,

counsel wished to introduce evidence that

the victim had sexual relations with

other black men, and further that one of

- 43 -

the state’s witnesses, who was charged as

an accessory after the fact in Butler’s

case, had caught a venereal disease from

her. All this evidence was excluded by

the trial court on the basis, inter alia,

that evidence regarding the victim’s

character was not relevant. Tr. 478-514,

State v. Horace Butler, supra.

In another decision which followed but

did not rely on or cite Booth, the South

Carolina Supreme Court disapproved

prosecutorial argument which stressed the

generosity and good deeds of the murder

victim in an interracial robbery-murder.

State v. Reed, 293 S.C. 515, 362 S.E.2d

13 (1987). Viewed in the context of its

past decisions, Reed provides a further

example of the South Carolina courts’

unwillingness to see capital sentencing

proceedings degenerate into adversarial

oe @6 «

post-mortem inquiries into the social

worth of the murder victims.

The South Carolina courts’ consistent

rejection of these types of evidence and

argument was unremarkable at the time the

rulings were made. But if the range of

capital sentencing considerations is now

to be expanded to encompass the moral and

religious character of the murder victim,

all of these aspects of the victims’

history and character must be deemed to

have become relevant to rebut the

prosecution’s character evidence. See

generally Barefoot v. Estelle, 463 U.S.

880, 901 (1983) ("the adversary process

[can] be trusted to sort out the reliable

from the unreliable evidence and opinion

about future dangerousness, particularly

when the convicted felon has the

opportunity to present his own side of

» @ «

the case"). Indeed, once the relevance

of such character evidence is accepted,

not even the absence of prosecution

evidence or argument concerning the good

character of the murder victim can serve

to remove the victim’s character as a

sentencing consideration. Rather,

evidence of the victim’s bad character

must be deemed "‘mitigating’ in the sense

that it might serve ‘as a basis for a

sentence less than death,’" Skipper v.

South Carolina, 476 U.S. 1, 4-5 (1976)

(quoting Lockett v. Ohio, 438 U.S. 506,

604 (1978)), and its admission in

mitigation constitutionally compelled.

Compare Jurek v. Texas, 428 U.S. 262

(1976) (defendant’s probable future

dangerousness is a valid capital

sentencing consideration) with Skipper v.

South Carolina, supra (Eighth Amendment

— =

requires admission of evidence tending to

establish defendant’s non-dangerousness) .

This expansion of the range of

relevant mitigating or rebuttal evidence

will effect very disturbing changes in

the other aspects of the capital

sentencing process. If the weaknesses,

limitations and human foibles of murder

victims are to become fair game in

capital sentencing proceedings, the duty

to uncover and present such evidence will

necessarily become one of the

responsibilities of reasonably competent

defense counsel in capital cases. See

generally Burger v. Kemp, 483 U.S. ___

107 S.Ct. 3114 (1987). No matter how

personally distasteful to defense

counsel, the search for evidence with

which to minimize the sentencer’s regard

for the murder victim might be, the

» @ a

prosecution’s right to "“ennoble” the

victim by a one-sided presentation of his

strengths and achievements will impose a

corresponding duty on defense counsel to

investigate and prove the victim’s moral

shortcomings and lapses, the burdens

which the victim’s failings or weaknesses

may have imposed upon those around him,

or anything else which might persuade the

sentencer to devalue the victim’s life.

Moreover, once the strengths and

weaknesses of a murder victim are

declared to be grist for the mill of

adversary litigation, prosecutors who

learn of information which might tend to

lower the sentencer’s estimation of the

personal worth of the victim in a capital

murder case will be constitutionally

obligated to disclose such information to

the accused under the due process

»s Me

principles of Brady v. Maryland, 373 U.S.

83 (1963) and United States v. Bagley,

473 U.S. 667 (1985). The most intimate

information concerning a murder victim’s

background inadvertently uncovered during

a homicide investigation or revealed by

grieving relatives or friends--facts that

the victim suppressed throughout his

lifetime--could be suppressed no longer

as his killer’s sentencing hearing

approached. And if the state is correct

in this case, the fact that the killer

may have known nothing of his victim’s

background--good or bad--cannot serve to

protect the victim’s memory against

attack as the defendant attempts to save

his own life by convincing the jury that

the loss to society occasioned by his

crime was not so great as it might at

first have appeared. In sum, the Booth

e &@ «

Court was wholly correct in its

characterization of “a ‘mini-trial’ on

the victim’s character" as “more than

simply unappealling.” 107 S.Ct. at 2535.

However well-intentioned may be those

who, under the banner of “victims’

rights," would have this Court

constitutionalize the right of both

prosecution and defense to mount such

demoralizing legal sideshows in capital

sentencing hearings, see, e.%., Brief of

Amici Curiae Center for Civil Rights and

the Stop! the Madness Foundation, a

proper regard for the dignity and memory

of each victim of murder no less than for

the commands of the Eighth Amendment

requires that the Court decline the

invitation to do so.

other decisions.

Petitioner suggests in its brief that

the rule established by this Court in

Booth is unworkable and is being

misapplied and misunderstood by the lower

courts. Petitioner’s brief at 48, 56.

However, a review of ocher decisions of

the South Carolina Supreme Court

resolving allegations of Booth error

contradicts petitioner’s contention. In

State v. Bell, 293 S.C. 291, 360 S.E.2d

706 (1987), cert denied, __U.S. ___, 108

S.Ct. 734 (1988), the appellant

maintained that it was error to permit

the state to introduce testimony

regarding the character of the victim,

her future plans and her lifestyle. The

court, however, relying on Booth,

determined that there was no

constitutional violation because the

evidence of the victim’s characteristics

was directly related to the circumstances

of the crime and had not been otherwise

used in an impermissible manner. 293

S.C. at 302-03. Similarly, in State v.

Howard, 295 S.C. 462, 369 S.E.2d 132

(1988), it was maintained on appeal that

evidence regarding the victim’s habits

and family life violated the Eighth

Amendment. Again the court determined

that there was no error because the

evidence was introduced at the guilt

phase of the trial “as circumstantial

evidence that the victim’s sudden

disappearance was not voluntary." 295

S.C. at 472.

Bell, Howard and Gathers, viewed

together, clearly indicate that the South

Carolina Supreme Court has properly

interpreted and applied the Eighth

- §2 -

Amendment principles set forth in Booth

vy. Maryland, and the other capital

punishment decisions of this Court. A

review of these three decisions reveals

that the state court has, consistent with

Booth, determined that where evidence of

a victim’s character is related to the

circumstances of the crime, and is not

used in a constitutionally impermissible

manner, the evidence is properly

admissible even though it may increase

the state’s chance of obtaining a death

sentence. However, the state court

determined that when, as in respondent’s

case, evidence of a victim’s christianity

and citizenship are used for the sole

purpose of suggesting that a capital

defendant should be sentenced to death, a

resulting death sentence cannot stand.

Thus the South Carolina Supreme Court

correctly recognized that in respondent's

case it was the use to which the Game

Guy’s prayer and the voter registration

card were put--to argue that Gathers

should be sentenced to death because the

victim was a good Christian and citizen--

that violated the Eighth Amendment.

II. BECAUSE SOUTH CAROLINA LAW PRECLUDED

RESPONDENT FROM INTRODUCING EVIDENCE

REGARDING THE VICTIM’S BAD CHARACTER AS A

SENTENCING CONSIDERATION, HIS DEATH

SENTENCE WAS SECURED IN VIOLATION OF THE

DUE PROCESS CLAUSE AS HE WAS DEPRIVED OF

AN OPPORTUNITY TO MEET AND REBUT THE

STATE’S ASSERTIONS.

As was noted previously in this brief,

both the justices in the majority and the

dissenting justices in Booth agreed that

"i¢ the state is permitted to introduce

evidence of the victim’s personal

qualities, it cannot be doubted that the

defendant also must be given the chance

to rebut this evidence." 107 §.Ct. at

» 08 «

2535; 107 S.Ct. at 2541 ("[nJo doubt a

capital defendant must be allowed to

introduce relevant evidence in rebuttal

to a victim impact statement”) (Justice

White dissenting) .* The Booth majority

concluded that to permit character

rebuttal evidence created the "prospect

of a ‘minitrial’ on the victim's

character. . . [which] could well

distract the jury from its

constitutionally required task--

‘This aspect of Booth was grounded

in the due process principles established

in Gardner v. Florida, 430 U.S. 349

(1977) (due process requires that a

capital defendant be given a chance to

rebut material contained in a pre-

sentenci’ 7 report), and Skipper v. South

Carolina, 476 U.S. 1, 5, 9-12 (1986) (all

nine justices agreeing--both in the

majority and concurring opinions--that it

violated Gardner vy. Florida to exclude

evidence of the defendant's adaptability

to prison but yet permit the prosecutor

to argue the defendant’s future

Gangerousness as a reason to impose the

death penalty).

» 08 «

determining whether the death penalty is

appropriate in light of the background

and record of the accused and the

particular circumstances of the crime.”

1a.” It was surely for this reason,

some examples of which were set forth in

subsection C of section I of this brief

(supra at 35-50) that the South Carolina

Supreme Court held in State v. Gaskins,

two years before respondent's trial, that

the bad character or criminal history of

"aside from the right of rebuttal,

another fundamental principle of

procedural due process is that an accused

is entitled to notice as to the specific

charges against him, and thus & fair

opportunity to meet the prosecution's .

evidence. See Cole v. Arkansas, 333 U.S.

196, 201 (1948) ("[nlo principle of

procedural due process is more clearly

established than that notice of the

specific charge, and a chance to be heard

in a trial of the issues raised by that

charge, are among the constitutional

rights of every accused in a criminal

proceeding in all courts, state or

federal”).

- $6 -

a murder victim is inadmissible in

mitigation of the murderer’s punishment .®