Amicus Curiae Brief — South Carolina v. Gathers

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No. 88-305

IN THE

Supreme Court of the United States

Ocroser Term. 1988

STATE OF SOUTH CAROLINA,

Petitioner.

vs.

DEMETRIUS GATHERS,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF SOLACE, FRIENDS OF SOLACE,

NORMAN FELTON, AND MARY JO GRUCA

AS AMICI CURIAE TIN SUPPORT OF

RESPONDENT

MICHAEL LAURENCE’ PAUL L. HOFFMAN

ACLU FOUNDATION OF JOAN W. HOWARTH

NORTHERN CALIFORNIA JOHN W. HEILMAN

Suite 460 ACLU FOUNDATION OF

1663 Mission Street SOUTHERN CALIFORNIA

San Francisco, CA 94013 633 South Shatto Place

(415) 621-2493 Los Angeles, CA 90005

(213) 487-1720

dtrorneys for Amici Curiae

*Counsel of Record

Lawyers Bref Service / Legal Printers / (213) 383-4457 / (714) 720-1510

OO OOO EO eee aaa...

Page

STATEMENT OF INTEREST OF AMICI CURIAE 2

INTRODUCTION AND SUMMARY OF ARGUMENT 5

ARGUMENT

I. THIS COURT SHOULD REAFFIRM

BOOTH V. MARYLAND TO

PREVENT DEATH SENTENCING

PROCEEDINGS FROM BECOMING A

BATTLE OVER THE SOCIAL

WORTH OF MURDER VICTIMS AND

PROLONGING THE AGONY OF THE

VICTIM'S FAMILY AND FRIENDS. . 8

II. THIS COURT SHOULD REAFFIRM

ITS HOLDING IN BOOTH V.

MARYLAND THAT THE EIGHTH

AMENDMENT PROHIBITS A STATE

FROM USING THE SOCIAL WORTH

AWD PERSONA L

CHARACTERISTICS OF THE

MURDER VICTIM TO DETERMINE

THE APPROPRIATENESS OF A

DEATH SENTENCE. ..+ +++ + 15

A. EIGHTH AMENDMENT

JURISPRUDENCE AND THE BOOTH

V. MARYLAND DECISION. .... 16

B. THE BOOTH COURT'S

INTERPRETATION OF EVOLVING

STANDARDS OF DECENCY IS

FIRMLY SUPPORTED BY THE

HISTORICAL EVOLUTION OF

OUR CRIMINAL JUSTICE SYSTEM

AND EGALITARIAN PRINCIPLES

CONTAINED IN OUR

DEMOCRATIC FRAMEWORK THAT

REQUIRE A STATE TO ENSURE

THE PROTECTION OF ITS

CITIZENS WITHOUT REGARD TO

SOCIAL

STATUS. «+ +2s-seeee8ee68s

C. PERMITTING THE STATE TO

INTRODUCE AND ARGUE A

VICTIM'S SOCIAL STATUS AND

PERSONAL CHARACTERISTICS

FAILS TO PROVIDE

MEANINGFUL REASONS FOR

IMPOSING THE DEATH

SENTENCE AND ALLOWS THE

DEATH PENALTY TO BE IMPOSED

BECAUSE OF CONSTITUTIONALLY

IMPERMISSIBLE AND

IRRELEVANT FACTORS. .... ;

CONCLUSION * + > . > > al > . > al > >

TABLE OF AUTHORITIES

Cases

Booth v. Maryland

482 U.S. , 107 S. Ct. 2529

EES eee

Briscoe v. Lahue

Dr MOD « 5 6 6 © © o

Burger v. Kemp

483 U.S. 97 L.Ed.2d 638 (1987)

wr |

Edwards v. California

314 U.S. 160 (1941) ......

Furman v. Georgia

PC ME UMPRD . 5 o 6 «© © «

Gardner v. Florida

ne Me SBOSED « « « 6 2 oc

Godfrey v. Georgia

446 U.S. 420 (1980) . .16, 23, 40,

iii

Page(s)

41,

Gregg v. Georgia Pennsylvania ex rel.

428 U.S. 153 (1976) ... 14, 16, 17, 41 Sullivan v. Ashe

fF 8 ee yl ee

Herndon v. Lowry

301 U.S. 242 (1937) . . . . . . . . . 46 State v. Gaskins

284 S.C. 105, 326 S.E.2d 132

Hirabayashi v. United States (2906S) «sce eceesenee

320 Wee 81 (1943) . . * . . . .* . . 48

State v. Gathers

Johnson v. Mississippi 295 S.C. 476,

486 U.S. _, 108 S. Ct. 1981 (1988) . 19 369 S.E.2d 140, (1988) . 24,

Linda R.S. v. Richard D. State v. Glenn

San Gels GU Cueeae te wee e ene 504 N.E.2d 701 (Ohio 1986) .

Loving v. Virginia

a Gale 2 Cee e686 65s se Se ere ee 100 U.S. 303 (1879) .....

McCleskey v. Kemp Strickland v. Washington

481 U.S. : 466 U.S. 668 (1984) .....

eS se. FF eae oS

Takahashi v. Fish and

Michael M. v. Superior Court Game Commission

Ge Wells Gee Caen « % @ 6 0's s'%s —@ 334 U.S. 410 (1948) .

Miller v. Florida Torcaso v. Watkins

oo f Ss ¢ gg SS rare | 367 U.S. 488 (1961) .....

Mills v. Maryland Trimble v. Gordon

486 U.S. - 430 U.S. 762 (1977) .....

108 S. Ct. 1860 (1988) .... + « 6, 20

Trop _v. Dulles

Monroe v. Pape 356 U.S. 86 (1958) ....

SGD Gelbe BOP CROGBD «wc we eee eooe ke

Turner v. Fouche

Orr v. Orr 396 U.S. 346 (1970) .

440 U.S. 268 (1979) ..«-e« «ec «6 « « 49

Turner v. Murray

£ se 2 CC ee

iv Vv

217 U.S. 349 (1910)

West Virginia State Board of Educ.

vy. Barnette

319 U.S. 624 (1943)

471 U.S. 261 (1985)

428 U.S. 280 (1976)

Zant v. Stephens

462 U.S. 862 (1983)

Constitution and Statutes

Due Provess Clause

Eighth Amendment.

Equal Protection .

First Amendment .

Ga. Penal Code, Pt.

Tit. 1, Div. 4 ~

§§ 4704 . . 7 . . .

4249 . . . . . . .

17, 19

20, 46

passim

.s @@

47, 52

Other Authorities

Beccaria, On Crimes and Punishments

(1764), reprinted in Theories of

Punishment (S. Grupp ed. 1971) ... .34

D. Bell, Race, Racism and

American Law (2d ed. 1980) ...

W. Bowers, Legal Homicide:

Death as Punishment in America,

Dn en « « 6 « 6 6 6 «6's « 2

Carter, When Victims Happen to

be Black, 7 Yale L.J. 420 (1988) .. 28

Gale, Retribution, Punishment,

and Death, 18 U.C. Davis L. Rev.

973 (1985) . a . . 7 . . . >. >. > . 32

Gibbons, Victims Again: Survivors

Suffer Through Capital Appeals

’

74 A.B.A. J. 64 (Sept. 1988) .....8

Goodpaster, The Trial for Life:

Effective Assistance of Counsel

in Death Penalty Cases, 58 N.Y.U.

L. Rev. 299 (1983) .. +. +++ «© « « 10

J. Hagan, Victims Before the Law:

C. Hibbert, The Roots of Evil:

| A. Higginbothan, In the Matter of

a. ee

vii

J. Locke,

Gee, CRGeee ec eo ce ee eel etl tél

F. Pollock & F. Maitland, The

(Cambridge Univ. Press

7 ae eee 6 ee 6 eo 6 & 6 @ © © a

T. Plucknett,

(5th ed.

1956) . >. . . >. >. > hal . el >. . >. > 29,

Radin,

, 18 U.C. Davis L. Rev.

a Ca! «es « = 6. 6s 6s 6s &@ «

Task Force on the Victims of

Crimes and Violence, Final Report

of the APA Task Force on the

40 Am. Psych. 107 (1985) .....

C. Woodson & C. Welsey,

0) > ) ee ee

viii

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1988

No. 88-305

State of South Carolina,

Petitioner,

Vv.

Demetrius Gathers,

Respondent .

On Writ of Certiorari to the

Supreme Court of South Carolina

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF SOLACE, FRIENDS OF SOLACE,

NORMAN FELTON, AND MARY JO GRUCA

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

Pursuant to Rule 36.3 of the rules

of this Court, amici respectfully request

leave to file the attached brief of amici

curiae in support of Respondent.

Although Respondent has consented to the

filing ef this brief, due to time

constraints, Amici has been unable to

obtain permission to file from

Petitioner.

STATEMENT OF INTEREST OF AMICI CURIAE

SOLACE is a membership organization

of approximately two hundred individuals,

who have ad a family member by blood,

marriage, or adoption who was murdered,

including those killed by drunk drivers.

Although the organization is open to

relatives of those executed by the state,

only a few such persons are currently

members. Formed in July 1988, SOLACE is

a@ nationally-based organization

headquartered in Atlanta, Georgia.

SOLACE was created to serve the needs of

families of murder victims, support

alternatives to capital punishment, and

provide a forum for public education on

the needs of murder victims’ families and

on capital punishment.

FRIENDS OF SOLACE is an organization

dedicated to supportine the goals of

SOLACE through fundraising and other

activities. The organization, which is

based in Albany, New York, has

approximately threé hundred-fifty members

and supporters and includes many friends

of murder victims.

Norman Felton and Mary Jo Gruca are

both relatives of murder victims. Norman

Felton's daughter, son-in-law, and nine-

month-old granddaughter were murdered in

Detroit, Michigan. Three individuals

were convicted of the crimes and

sentenced to life in prison without the

possibility of parole. Throughout the

ordeal, Mr. Felton was in contact with

the Michigan authorities and in

attendance at the trials.

Mary Jo Gruca's brother, Jim Gruca,

was killed in the course of a burglary in

in, mei

October 1983, ir Los Angeles County. The

murder remains unsolved.

For the foregoing reasons, amici

Curiae respectfully request leave to file

this brief amici curiae in support of

Respondent. Amici's participation in

this case will provide this Court with

important perspectives that we believe

will not be otherwise presented.

Dated: January 31, 1989

Respectfully submitted,

MICHAEL LAURENCE*

ACLU FOUNDATION OF

NORTHERN CALIFORNIA

PAUL L. HOFFMAN

JOAN W. HOWARTH

JOHN W. HEILMAN

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

Attorneys for Amici

*Counsel of Record

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner and Amici in support of

Petitioner urge this Court to overrule or

severely curtail the holding in Booth v.

Maryland, 482 U.S. __, 107 S. Ct. 2529

(1987). In Booth, this Court held that a

death sentencing determination should not

be influenced by the constitutionally

irrelevant factors of the victim's status

in the community and personal

characteristics and the effect that the

victim's loss had on family members. ld.

at 2533. We respectfully submit that

this Court correctly interpreted the

Eighth Amendment in Booth and that this

occasion should not be used to overrule

that decision. }

1 The instant case questions only

the first prong of the Booth decision--

whether the victim's status in the

community and personal characteristics

may influence a death sentence

determination. At trial, the State of

First, permitting the prosecution to

introduce evidence of or argue a victim's

good character to the jury will result in

death penalty proceedings dominated by a

debate about the character and social

worth of the victin. Rather than

providing “the jury a quick glimpse of

the life [the defendant) chose to

extinguish,” Mills v. Maryland, 486 U.s.

+ 108 S. Ct. 1860, 1876 (1988)

(Rehnquist, C.J., dissenting), the

proceedings will degenerate into a parade

of the victim's “evil” deeds and human

South Carolina did not attempt to present

or argue the effect that Mr. Haynes’

murder had on his family and friends.

Although Petitioner and amici in suppo:t

of Petitioner requests that Booth be

overruled in its entirety, such a

sweeping request is untenable as the

remainder of the Booth holding is not

before the Court. Nevertheless, although

this brief addresses only the validity of

the first prong of the Booth holding,

many of the arguments contained herein

equally support the Booth holding with

respect to the second prong.

foibles, thus prolonging the suffering of

the victim's family and loved ones and

distracting the jury's attention from its

responsibility to determine whether the

death penalty is the appropriate sentence

for the defendant.

Second, the “evolving standards of

decency" that give meaning to the Eighth

Amendment do not permit the State to

impose a death sentence because a murder

victim's status and personal

characteristics are valued by the

community. Permitting the State to

differentiate the quantity and quality

of punishme..: based on the victim's

social worth offends the democratic

precepts upon which this society was

formed and violates this Court's

interpretation of the Eighth Amendment.

been accused of being unresponsive to and

uncaring for the needs of crime victins

and their family and friends. See, ¢.g.,

Task Force on the Victims of Crimes and

Violence, Final Report of the APA Task

Viglence, 40 Am. Psych. 107 (1985);

Gibbons, Victims Again: Survivors Suffer

Through Capital Appeals, 74 A.B.A. J. 64

(Sept. 1988). Amici in support of

Petitioner assert that overruling Booth

would make the criminal justice system

more responsive to these needs. See

Brief of Amici Curiae of Washington

Legal Foundation et al., at 22-30. In

reality, however, victims' families will

not be served by permitting the personal

characteristics of the victim to

influence death sentencing decisions.

A major concern underlying the Booth

holding was that introducing a victim's

character and social status in the

community into a death sentencing

proceeding “could well distract’ the

sentencing jury from its constitutionally

required task [of] determining whether

the death penalty is appropriate in light

of the background and record of the

accused and the particular circumstances

of the crime." 107 S&S. Ct. at 2535.

Given the realities of capital

representation, such concerns are

substantial.

An overruling of Booth v. Maryland

would permit the death sentencing

proceeding to become a battle over

ia, eee

whether the loss to society caused by the

victim's death justifies the execution of

the defendant. Without the clear

prohibition against such distracting

influences, death penalty proceedings

likely will become thoroughly infused

with such considerations. The result

will have a devastating effect on the

families and friends of victims.

Confronted with the prospect of a

death sentencing determination influenced

by the victim's personal characteristics,

a defense attorney, whose responsibility

includes a thorough investigation of the

prosecution's case, would have to

analyze every facet of a victim's life.

See, @.g., Goodpaster, The Trial for

Death Penalty Cases, 58 N.Y.U. L. Rev.

299, 335 (1983) ("A true advocate cannot

permit a capital case te go to the

sentencer on the prosecution's one-sided

portrayal alone and claim to be

rendering effective assistance."); see

also Strickland v. Washington, 466 U.S.

668 (1984).

Moreover, even though investigations

may focus on gathering evidence to rebut

the State's case in aggravation, a

defense attorney might decide to use the

victim's “bad" deeds and socially

undesirable characteristics. As this

Court in Booth recognized, when the

state is permitted to introduce such

evidence, “the defendant presumably

would be permitted to put on evidence

that the victim was of dubious moral

character, was unpopular, or was

ostracized from his family." 107 S. Ct.

at 2535. Under the current law in South

Carolina, all evidence of the victim's

character -- good and bad -- is excluded

from the penalty trial. See State vy.

Gaskins, 284 S.C. 105, 326 S.E.2d 132

(1985). By overruling Booth v. Maryland,

this Court would open the door t»°

wholesale attacks by defense attorneys on

the character of victims, either to rebut

Claims made by prosecutors or,

independently, as mitigating factors.

Finally, the criminal proceedings,

themselves, will be adversely affected.

Defense counsel can be expected to use

jury selection to determine personal

assessments of character. See Turner v.

Murray, 476 U.S. 28 (1986). Prospective

jurors can expect to be voir dired on

their beliefs on a wide range of

character traits. Thus, the focus of the

penalty trial will be on the Victim's

family and friends, as they will be

called upon to testify to the victim's

characteristics. Moreover, rather than

being left with the memory of the victim

as a person, the families and friends

will be forced to endure a parade of

reasons why the victim's death does not

justify the death penalty.

Overruling Booth will not redress

the failings of the criminal justice

system with respect to victims and their

families; indeed, the result will be

quite the opposite. Throughout the

pretrial investigation and the trial,

the victim's families will be called upon

to provide evidence to both the

prosecution and the defense. In effect,

they will become the warriors in the

battle over the social worth of the

victims. In addition, the questions

about the victim's social worth and

personal characteristics can be expected

to last for years, as the specter of

ineffective assistance of counsel must be

SSS

examined in habeas proceedings. See

Burger _v. Kemp, 483 U.S. __—, 97 L.Ed.2d

638, 653-58 (1987).

Finally, permitting the

appropriateness of the death penaity to

be determined by the social worth of the

victim will have severe consequences on

the victim's family. When society's use

of the ultimate penalty is determined by

the social worth of the victin, any

sentence less than death will be viewed

as an indication that society does not

value the loss of the victin. Such a

prospect is quite likely, if for no other

reason than few murders result in a death

sentence. See _ ¢.g., Gregg v. Georgia,

$25 U.S. 153, 189 (1976) (Opinio of

Stewart. Powell, and Stevens, PP

- - " = =

Thus, rather than making the criminal]

Justice system nore responsive to

Victims’ needs, overruling Booth will

have the effect of making it less

responsive and increase the likelihood

that victims' families will resent their

treatment.

It.

THIS COURT SHOULD REAFFIRM ITS HOLDING IN

BOOTH V. MARYLAND THAT THE EIGHTH

AMENDMENT PROHIBITS A STATE FROM USING

THE SOCIAL WORTH AND PERSONAL

CHARACTERISTICS OF THE MURDER VICTIM TO

DETERMINE THE APPROPRIATENESS OF A DEATH

SENTENCE.

Amici respectfully submits that the

Eighth Amendment does not permit a State

to impose the death penalty based on the

victim's personal characteristics and

status in the community. The

democratic traditions upon which our

criminal justice system depend long ago

discarded notions that a crime victim's

social standing should influence a

criminal's punishment.

ee —— eee

A. EIGHTH AMENDMEN' JURISPRUDENCE AND

THE BOOTH V. MARYLAND DECISION.

"([O]ne of society's most basic task

is that of protecting the lives of its

citizens and one of the most basic ways

in which it achieves the task is through

criminal laws against murder." Gregg v.

Georgia, 428 U.S. at 226 (White, J.,

concurring). A State may impose the

ultimate punishment for certain

aggravated murders, but only if the

procedures used comply with the Eighth

Amendment. Godfrey v. Georgia, 446 U.S.

420, 427-28 (1980) (opinion of Stewart,

J.).

In Gregg v. Georgia, this Court held

that the death penalty did not violate

the Eighth Amendment if tine sentencer's

"discretion . . . [is] suitably directed

and limited so as to minimize the risk of

wholly arbitrary and capricious action."

428 U.S. at 189 (plurality opinion of

Stewart, Powell, and Stevens, Dede)

Morecver, a sentencer's decision on

whether death is appropriate must be

guided by "'the circumstances of the

offense together with the character and

propensities of the offender.'" Id.

(quoting Pennsylvania ex rel. Sullivan v.

Ashe, 302 U.S. 51, 55 (1937)). The case

law since Gregg confirms that the Eighth

Amendment requires that death sentencing

decisions be based on an individualized

consideration of the defendant's personal

culpability. See Booth, 107 S. Ct. at

2533 ("(T}he jury is required to focus on

the defendant as a ‘uniquely individual

human bein(g).'") (quoting Woodson v.

orth olina, 428 U.S. 280, 304 (1976)

(plurality opinion of Stewart, Powell,

and Stevens, J.J.))? ia v. wn,

479 U.S. 538, 545 (1987) (O'Connor, Jes

concurring) ("Lockett and Eddings reflect

the belief that punishment should be

directly related to the personal

culpability of the criminal defendant.")

(emphasis added).

This Court has’ consistently

recognized that individualized

decisionmaking is thwarted when the jury

or judge considers factors beyond the

defendant's control as reasons to impose

death. State procedures must carefully

confine the sentencer's discretion to

constitutionally relevant factors, as

"(ijt is of vital importance to the

defendant and to the community that any

decision to impose the death sentence be,

and appear to be, based on reason rather

than caprice or emotion." Gardner v.

Florida, 430 U.S. 349, 358 (1977). As

Justice O'Connor recognized in Caldwell

v. Mississippi, 472 U.S. 320, 343 (1985),

death sentencing procedures violate the

Constitution if they "“creat(e) an

unacceptable risk that ‘the death penalty

(may have been] meted out arbitrarily or

capriciously' or through ‘whim or

mistake'" (quoting California v. Ramos,

463 U.S. 992, 999 (1983)).

In the 1987-1988 Term, this Court,

returning to these principles, recognized

the unique nature of the death penalty,

and reaffirmed the familiar restrictions

on unbridled sentencing discretion. In

Johnson v. Mississippi, 486 U.S. , 108

S. Ct. 1981, 1986 (1988), this Court

stated:

The fundamental respect

for humanity underlying the

Eighth Amendment's prohibition

against cruel and unusual

punishment gives rise to a

special "need for reliability

in the determination that death

is the appropriate punishment"

in any capital case. See

ida, 430 U.S.

349, 363-64 (1977) (quoting

Woodson v. North Carolina, 428

U.S. 280, 305 (1976) (White,

J., concurring in judgment) ).

Although we have acknowledged

that "there can be 'no perfect

procedure for deciding in which

cases governmental authority

should be used to impose

death,'" we have also made it

clear that such decisions

cannot be predicated on mere

"Caprice" or on “factors that

are constitutionally

impermissible or totally

irrelevant to the sentencing

process."

462 U.S. 862, 884- P

ast 85, 887 n.24

"In reviewing death sentences, the Court

has demanded even greater certainty that

the jury's conclusions rested on proper

grounds." Mills v. Maryland, 486 U.S

, 108 S. Ct. 1860, 1866 (1988). In

sum, "[ujnless we can rule out the

substantial possibility that the jury may

have rested its verdict on the ‘improper'

ground, we must remand for resentencing."

Id. at 1867.

In light of these established

principles of Eighth Amendment

jurisprudence,

Booth v. Maryland was well-reasoned and

correct. Booth held that a death

sentencing decision may not

predicated on

of the victims and the emotional impact

of the crimes on the family" because such

information does not instruct on

defendant's "moral guilt."

2533.

As this Court reasoned,

[The character and reputation

of the victim and the effect on

his family} may be wholly

unrelated to the

blameworthiness of a particular

defendant. . . {(T)he

defendant often will not know

the victim, and therefore will

have no knowledge about the

existence or characteristics of

the victim's family. Moreover,

defendants rarely select their

victims based on whether the

murder will have an effect on

anyone other than the person

murdered. Allowing the jury to

rely on a VIS therefore could

result in imposing the death

sentence because of factors

this Court's decision in

"personal characteristics

107 S. Ct.

about which the defendant was

unaware, and that were

irrelevant to the decision to

kill. This evidence thus could

divert the jury's attention

away from the defendant's

background and record, and the

circumstances of the crime.

Id. at 2534.2

This Court explicitly rejected the

State's argument that the "emotional

trauma suffered by the family and the

personal characteristics of the victims"

constituted a circumstance of the crime.

Id. at 2533. The Court concluded that

"this information is irrelevant to a

capital sentencing decision, and that its

2 Booth recognized, however, that

in certain cases, the victim's status

might be relevant if the defendant was

aware of the personal characteristics or

the effect that killing would have on the

family and friends, and acted on that

awareness. 107 S. Ct. at 2534 ("As we

have recognized, a defendant's degree of

knowledge of the probable consequences of

his actions may increase his moral

culpability in a constitutionally

Significant manner.").

admission creates a _ constitutionally

unacceptable risk that the jury may

impose the death penalty in an arbitrary

and capricious manner." Id.

Booth also based its decision on a

second rationale, one that Amici

respectfully submits provides an

additional compelling reason to reaffirm

the holding of that case. This Court

held that a death sentencing

determination cannot’ constitutionally

"turn on the perception that the victim

was a sterling member of the community

rather than someone of questionable

character. This type of information does

not provide a ‘principled way to

distinguish [cases] in which the death

penalty was imposed from the many cases

in which it was not.'" Id. at 2534

(quoting Godfrey, 446 U.S. at 433

(opinion of Stewart, J.). The Court

continued:

We are troubled by the

implication that defendants

whose victims were assets to

their community are more

deserving of punishment than

those whose victims are

perceived to be less worthy.

Of course, our System of

justice does not tolerate such

distinctions. i Furman vy.

Georgia, 408 U.S. 238, 242

(1972) (Douglas, re

concurring).

Id. at 2534 n.8. Thus, in reaching its

decision, the Court Simply applied the

principle that the state must accord all

murder victims equal human dignity and

value in a death sentencing

determination.

Similarly, the South Carolina

Supreme Court below concluded that

evidence of the victim's good character

is irrelevant to the sentencing decision.

State v. Gathers, 295 5.¢, 476, 369

S.E.2d 140, 144, c : gd, 109 Ss.

Ct. 218 (1988). Significantly, the court

relied on its prior decision in State v.

Gaskins, 284 S.C. 105, 326 S.E.2d 132

(1985), which held that “evidence of

[the] victim's bad character [was] not

admissible as mitigating evidence in

[the] sentencing phase," Gathers, 368

S.E.2d at 144.

Amici respectfully submit that the

two rationales used by the Booth Court

and in turn by the South Carolina Supreme

Court are compelling. Because the Eighth

Amendment derives much of its meaning

from the evolution of punishment and

principles within our democratic

framework and how they relate to the

“evolving standards of decency," Amici

addresses the second rationale first.

B. THE BOOTH COURT'S INTERPRET

EVOLVING STANDARDS OF DECENCY 8 PIMeLy

SUPPORTED BY THE HISTORICAL EVOLUTION OF

OUR CRIMINAL JUSTICE SYSTEM AND

EGALITARIAN PRINCIPLES CONTAINED IN OUR

ca FRAMEWORK THAT KEQUIRE A STATE

ENSURE THE PROTECTION OF ITS CITIZENS

WITHOUT REGARD TO SOCIAL STATUS.

The Booth Court's conclusion that a

death sentence should not turn on the

social worth of the victim stems from our

deep-rooted commitment to social

equality. As this Court has consistently

recognized, the Eighth Amendment's

Prohibition on cruel and unusual

punishments derives its meaning from "the

evolving standards of decency that mark

the progress of a maturing society."

Trop _v. Dulles, 356 U.S. 86, 101 (1958);

see also McCleskey v. Kemp, 481 U.S

107 S. Ct. 1756, 1770-71 (1987). The

Progress of our maturing society

especially "as public opinion [has]

become{} enlightened by a human

justice," Weems v. United States, 217

U.S. 349, 378 (1910), has been consistent

in the belief that our democratic society

is not permitted to dole out police

protection and criminal punishment based

on the citizen's status in the community.

An inquiry into the "evolving

standards of decency" must begin with an

examination of the principles upon which

our maturing society has been based. The

fundamental principle of equality

contained in the social contract of

governments is that individuals

relinquish self-help and vigilante

justice to the government in return for

society's collective protection. ? An

3. John Locke wrote of individuals'

relinquishment of the right to punish

when a governmer* is formed:

([B]ecause no political society

can be nor. subsist without

having in itself the power to

preserve the property, and, in

Order thereunto, punish the

offences of all those of that

society, there, and there only,

is political society, where

every one of the members hath

quitted this natural power,

resigned it up into the hands

of the community in all cases

that exclude him not from

appealing for protection to the

law established by it; and thus

all private judgment of every

particular member being

excluded, the community comes

to be umpire; and by

understanding indifferent rules

and men authorized by the

community for their execution,

decides all the differences

that may happen between any

members of that society

concerning any matter of right,

and punishes those offences

which any member hath

committed against the society

with such penalties as the law

has established; whereby it is

easy to discern who are and who

are not in political society

together.

J. Locke, ond eati Civil

Government § 87 (1690); cf. Carter, When

Victims Happen to be Black, 97 Yale L.J.

420, 422 (1988) ("If the government

cannot or will not protect the people,

then the social compact is rent asunder,

and people have to protect themselves

integral part of the social contract, as

it has evolved in our political

philosophy, is the notion that each

citizen is entitled to the same

protection accorded fellow citizens.

The Anglo-American system of

criminal justice long ago accepted the

responsibility of collective protection

and replaced the system in which the

social status of the victim determined

the amount of "justice" obtained. Prior

to the development of modern criminal law

and procedure in the nineteenth century,

criminal punishment in England depended

upon private prosecutions by victims or

their survivors, at first in the field of

battle and later in local courts. See T.

Plucknett, A Concise History of the

Common Law 424-26 (Sth ed. 1956).

against the stream of evil pouring through.").

Victims and their families often

collected compensation from the offender

as the punishment for the crime; even

homicide "was a deed that [could] be paid

for by money." 2 F. Pollock & F.

Maitland, The History of English Law 451

(Cambridge Univ. Press 2d ed. 1968); see

also id. at 450 ("The injured kin would

avenge its wrong not merely on the person

of the slayer, but on his belongings.").

Moreover, the punishments meted out

differed depending upon the social status

of the aggrieved person. e G., Ad.

(The injured kin “would have life or

lives for life, for all lives were not

equal value; six ceorls must perish to

balance the death of one thegn."); 1 F.

Pollock & F. Maitland, supra, at 48

(Under Anglo-Saxon criminal law,

compensation for homicide, wer, was "the

value set on a man's life, increasing

with his rank") .4

4 Even as punishment became a

creature of statute, discrimination based

on the status of the victim continued.

For example, a seventh century statute

provided for differing punishment for the

crime of rape, depending upon the social

worth of the victim:

A man who “lays with a maiden

belonging to the king," for

example, had to pay fifty

shillings compensation, but if

she was “a grinding slave" the

compensation was halved.

Compensation for lying with a

nobleman's serving maid was

assessed still lower at twelve

shillings and with a commoner's

serving maid at six shillings.

If a freeman raped the slave of

a commoner he had to pay more

than five shillings'

compensation, but if a slave

raped the same girl he was

castrated.

C. Hibbert, The Roots of Evil: A Social

History of Crime and Punishment 4

(1963).

Status of the victim also had a role

in the application of capital punishment.

In the fourteenth century, English law

provided the death penalty for petty

treason, which was the killing of a

husband by a wife, but not for a husband

killing the wife. T. Plucknett, A

Concise is w 443

The private system of justice was

gradually replaced with common law

proceedings, which vested the criminal

justice function in the central

governmental authority.° As criminal

punishment was transformed to serve the

(Sth ed. 1956).

° Many political philosophers

during this time, including Cesare

Beccaria, Jeremy Bentham, and John Stuart

Mill, convincingly argued that the

purpose of punishment must be guided by

the society's interests in preventing

future crime, rather than redressing the

damage inflicted on the individual

victims. See J. Hagan, Victims Before

: i j Lon

11 (1983) (An

"implication of the utilitarian

philosophy of punishment offered by

Beccaria and Bentham ..., {is} that

victims should play no direct role at all

in criminal justice decisions about

prosecution and punishment.") ; see also

Gale, i j j th,

18 U.C. Davis L. Rev. 973, 974 n.4 (1985)

("In a representative democracy, which

postulates the political equality of its

members, an important social institution

that enables some members to exert

Significant power over others is required

to have a public rationale.")

collective interests of society, civil

tort law served as the vehicle for

compensation for crime victims. ?.

Plucknett, supra, at 422-23, 458. This

transferring of authority for criminal

punishment from private to public was

accompanied by an increasing respect for

equality of all persons in the

community. See W. Bowers, Legal

Homicide: n

America, 1864-1982, at 139 (1984) ("In

effect, the economic revolution of the

eighteenth century brought about a new

balance in English society .. . .- The

Sacredness of property rights, as

proclaimed by Locke, was displaced by a

new-found reverence for human rights and

liberties associated with the

Enlightenment -- providing a mandate for

the full political incorporation of all

citizens, not just the propertied

classes.") .®

Although the acceptance of

enlightenment produced a criminal justice

system in which all "persons" were

entitled to equal protection by the

state, the concept that all human beings

were persons was not’ universally

accepted. The most notorious’ and

§ With regard to assigning

punishment based on the status of the

victim, Cesare Beccaria wrote:

Others measure crimes

rather by the dignity of the

injured person than by the

importance (of the offense)

with respect to the public

good. If this were the true

measure of crimes, an

irreverence toward the Being of

beings ought to be more

severely punished than the

assassination of a monarch, the

superiority of nature

constituting infinite

compensation for the difference

in the injury.

Beccaria,

ori i Punis} )

(1764), reprinted in Theories of

Punishment 117, 134 (S. Grupp ed. 1971).

prevalent discrimination in criminal

punishments in the United States was that

based on race. Indeed, until the passage

of the Reconstruction Amendments to the

u.s. Constitution, state statutes

expressly provided for differing

punishments depending upon the race of

the victim.’

Although the enactment of the

Reconstruction Amendments provided the

means for nullifying statutes that

differentiated punishments based on

7 prior to the Reconstruction

Amendments, southern States routinely

imposed differing punishments depending

upon the race of the offender and the

race of the victim. See, e.g., A.

Higginbotham, In the Matter of Color:

j i 256

(1978) (differential punishment schemes

based on race of victim and race of

defendant); see also Ga. Penal Code, Pt.

4., Tit. 1, Div. 4 §§ 4704 (rape of white

woman by a black punishable by death),

4249 (rape of a black woman punishable by

a fine and imprisonment) (1861), quoted

in McCleskey v. Kemp, 107 S. Ct. at 1786

(Brennan, J., dissenting).

victim's race, they proved less effective

in removing discrimination from the

actual administration of criminal laws in

the South. Those who administered

criminal justice continued to

discriminate based on race and alienage

of the victim. The failure to ensure

8 That the Civil war did not

eliminate discrimination in the

administration of police protection is

evident by the countless abuses suffered

by black persons while southern

authorities refused to act. In Monroe v.

Pape, 365 U.S. 167 (1961), Justice

Douglas quoted the members of Congress

who in 1871 spoke of the need for equal

protection of the laws for all citizens:

(Mr. Lowe of Kansas_ said]

"While murder is stalking

abroad in disguise, while

whippings and lynchings and

banishment have been visited

upon unoffending American

citizens, the local

administrations have been found

inadequate or unwilling to

apply the proper corrective.

Combinations, darker than the

night that hides then,

conspiracies, wicked as the

worst of felons could devise,

have gone unwhipped of justice.

that all individuals were entitled to

protection of the criminal justice system

condemned an entire race to unequal

treatment. See D. Bell, Race, Racism and

American Law 207 (2d ed. 1980).

The evolution of our criminal

Immunity is given to crime, and

the records of the public

tribunals are searched in vain

for any evidence of effective

redress."

Id. at 175; see also Wilson v. Garcia,

471 U.S. 261, 276-77 (1985); Briscoe v.

Lahue, 460 U.S. 325, 336-40 (1983) ;

District of Columbia v. Carter, 409 U.S.

418, 425-29 (1973). Moreover, even when

individuals were brought to trial for

criminal acts against blacks, they were

often acquitted. See C. Woodson & C.

Welsey, The Negro in Our History 394

(1922) (citing several cases in which

individuals killing blacks were not

punished).

To address the refusal or failure of

southern authorities to provide legal

protection to black persons, Congress

enacted a whole host of legislation,

which required the federal judiciary --

through civil and criminal proceedings--

to enforce the civil rights of all

persons. See D. Bell, kKace, Racism and

American Law 30-38, 207-30 (2a ed. 1980).

justice framework has thus produced an

understanding that police protection and

criminal punishment cannot depend on the

victim's social worth to the community. ?

Moreover, respect for these principles

requires constant vigilance in the

application of law: "The moral

requirement of equal treatment makes

systemic concerns about the operation of

the criminal justice system ... morally

central." Radin, ortionalit

Subjectivity, and Tragedy, 18 U.C. Davis

L. Rev. 1165, 1170 (1985).

Mindful of the evolution of the

9 This is not to say that a

legislature cannot define criminal

liability based on circumstances of the

crime and the offender's awareness of

those circumstances. For example, a

State may constitutional punish the

intentionally killing of a police officer

in the line of duty where the defendant

was aware of the officer's occupation.

See, e.g., State v. Glenn, 504 N.E.2d 701

(Ohio 1986).

criminal justice system and our struggle

to guarantee the protecticn of the laws

to all persons, the Booth Court was

properly troubled when the State of

Maryland suggested that a death verdict

may turn on whether the victim was a

sterling member of society. 107 Ss. Ct.

at 2534. The unyielding march of our

civilized society is to rid our country

of such discriminatory treatment, and

Booth properly concluded that evolving

standards of decency, as they define the

Eighth Amendment, prohibit such

discrimination in selecting those

defendants deserving of society's

ultimate punishment.

C. PERMITTING THE STATE TO INTRODUCE AND

ARGUE A VICTIM'S SOCIAL STATUS AND

PERSONAL CHARACTERISTICS FAILS TO PROVIDE

MEANINGFUL REASONS FOR IMPOSING THE DEATH

SENTENCE AND ALLOWS THE DEATH PENALTY TO

BE IMPOSED BECAUSE OF CONSTITUTIONALLY

IMPERMISSIBLE AND IRRELEVANT FACTORS.

Even if the Eighth Amendment did not

prohibit entirely the use of a victim's

social standing, other aspects of the

Eighth Amendment's requirements) of

individualized sentencing and other

constitutional provisions require careful

scrutiny of a State's use of a victim's

personal characteristics as reasons for

imposing death. In particular, the

factors used in this case -- the

religious practices of Mr. Haynes and

that he was a registered voter -- fail to

comply with strict adherence to

constitutional principles.

Although a State is free to adopt

its own death penalty sentencing

procedures, those procedures "must

channel the sentencer's discretion by

‘clear and objective standards' that

provide ‘specific and detailed guidance, '

and that 'make rationally reviewable the

process for imposing a_ sentence of

death.'" Godfrey v. Georgia, 446 U.S.

420, 428 (1980) (citations and footnotes

omitted). Moreover, the sentencer is

discretion to impose the death sentence

must be "suitably directed and limited so

as to minimize the risk of wholly

arbitrary and capricious action." Gregg,

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

Powell, and Stevens, J.J.). The "capital

sentencing scheme must, in short, provide

a ‘meaningful basis for distinguishing

the few cases in which [the penalty] is

imposed from the many cases ir which it

is not.'" Godfrey v. Georgia, 446 U.S.

at 427-28 (opinion of Stewart, J.)

(quoting Gregg v. Georgia, 428 U.S. 153,

188 (1976) (opinion of Stewart, Powell,

and Stevens, J.J.) and Furman v. Georgia,

408 U.S. 238, 313 (1972) (White, J.,

concurring) ).

State procedures that permit a

sentencer to consider personal

characteristics and social standing of

the victim fail to comply with Eighth

Amendment jurisprudence in two major

respects. First, they permit the

imposition of the death penalty for

reasons that do not meaningfully

distinguish between those that deserve to

die and those that do not. Second, they

permit the imposition of a death sentence

for constitutionally impermissible or

irrelevant factors.

The procedures below illustrate both

defects in a death sentencing scheme that

permits the introduction of a victim's

personal characteristics. The State of

South Carolina did not determine what

aspects of a victim's personal

characteristics constitute reasons to

impose a death sentence. Rather, te

individual prosecutor and the jury were

left with unlimited discretion to

determine what aspects were relevant and

what weight to assign those

characteristics.

The prosecutor's argument in this

case fully supports the pcsition that

using victim characteristics will fail to

guide adequately the sentencer's

discretion. The prosecutor argued that

because Mr. Haynes had registered to

vote, the death penalty was’ the

appropriate punishment. ate v.

Gathers, 369 S.E.2d at 144. The

particular defect with the State's

position is that this factor does not

relate to the defendant's culpability

because registering or not registering to

vote does not reveal whether Mr. Haynes

was a worthy individual. The State

obviously cannot support the view that a

person who is not a registered voter is

unworthy of societal protection to the

fullest extent of the law.19 thus, the

use of a personal characteristic that

reveals no constitutionally significant

reason why the death penalty should be

imposed fails to distinguish in a

meaningful manner. ++

10 Indeed, society has an

obligation to protect its members without

regard to whether they are eligible to

vote. Many members of our society are

legally unable to register, e.g., those

under eighteen and aliens. Society, of

course, must protect these individuals in

the same manner as it does those who do

11 he logic of Amici's argument is

clearly seen when one examines what a

defendant in Mr. Gather's positicn could

do to counter the State's efforts. For

example, could a defendant rebut the

prosecutor's use of the voter

The defect identified by the

prosecutor's use of Mr. Haynes' voter

registration card is not unique to that

particular aspect of the victim's

background. Almost all personal

characteristics are capable of supporting

the position that the murder of a person

was particularly tragic. The critical

Eighth Amendment concern is whether the

particular aspect of a victim's character

used aS a reason to death sentence

implies the converse -- that is, the

absence of such a character trait should

be a mitigating factor. To hold

otherwise would mean that a death

sentence is imposed because of factors

universal to all murder cases. See

Godfrey, 446 U.S. at 433 ("There is no

registration cards by showing that the

victim, although registered, did not

vote?

principled way to distinguish this case,

in which the death penalty was imposed,

from the many cases in which it was

not."); see also McCleskey, 95 L.Ed.2d

at 286 (Constitution requires that states

have “carefully defined standards that

must narrow a sentencer's discretion to

impose the death sentence").

Using a victim's personal

characteristics also risks a death

sentence imposed because of

constitutionally impermissible and

irrelevant grounds. In upholding the

presentation to the jury of a defendant's

previous criminal activity as a

nonstatutory aggravating circumstance,

this Court in Zant v. Stephens, 462 U.S.

862 (1983), expressly stated that

consideration of certain factors as

aggravating circumstances may violate the

Constitution:

Nor has Georgia attached the

"aggravating" label to factors

that are constitutionally

impermissible or totally

irrelevant to the sentencing

process, such as for example

the race, religion, or

political affiliation of the

defendant, cf. Herndon v.

Lowry, 301 U.S. 242 (1937), or

to conduct that actually shouid

militate in favor of a lesser

penalty, such as perhaps the

defendant's mental illness.

Cf. Miller v. Florida, 373 So.

2d 882, 885-886 (Fla. 1979).

If the aggravating circumstance

at issue in this case had been

invalid for reasons such as

these, due process of law would

require that the jury's

decision to impose death be set

aside.

462 U.S. at 885 (emphasis added).

What constitutes an impermissible or

irrelevant ground derives from all

constitutional principles, including the

Eighth Amendment, the Due Process Clause,

Equal Protection, the First Amendment.

For example, principles embodied in the

Equal Protection Clause would prohibit

certain aspects of a murder victim's life

to be used in determining punishment.

Absent a showing of sufficient

governmental interest, the State could

not use the following factors as reasons

to impose a death sentence: race, 12

ancestry,13 gender,14 legitimacy,?°

12 See, e.g., Strauder_v. West

Virginia, 100 U.S. 303, 307 (1879)

("{Aj}ll persons, whether colored or

white, shall stand equal before the laws

of the States, and, in regard to the

colored race, ... no discrimination shall

be made against them by the law because

of their color...."); cf. Linda R.S. v.

Richard D., 410 U.S. 614, 621 (1973)

(White, J., dissenting) ("If a State were

to pass a law that made only the murder

of a white person a crime, I would think

that Negroes as a class would have

sufficient interest to seek a declaration

that the law invidiously discriminated

against them.").

13 See, e.g., Loving v. Virginia,

388 U.S. 1, 11 (1967) (“Over the years,

this Court has consistently repudiated

'(djistinctions between citizens solely

because of their ancestry' as. being

‘odious to a free people whose

institutions are founded upon the

doctrine of equality.'") (quoting

» 3820 U.S.

81, 100 (1943)).

alienage,1® economic success or

standing,!’ and property ownership. 18

14 See, e.g., Orr v. Orr, 440 U.S.

268, 279-80 (1979) (invalidating a state

law imposing alimony obligations only on

men). But see Michael M. v.

Court, 450 U.S. 464 (1981) (statutory

rape law protecting teenage girls did not

violate equal protection because state

justification for discriminatory

treatment -- deterring teenage

pregnancies -- sufficient).

15 See, e.g., Trimble v. Gordon,

430 U.S. 762, 773 (1977) (discrimination

against illegitimates impermissible

because “illegitimate children can affect

neither their parents' conduct nor their

own status").

16 See, e.g., Takahashi v. Fish

and Game Commission, 334 U.S. 410, 420

(1948) (aliens have the same right to the

full and equal benefit of all laws and

proceedings).

17 This Court has unequivocally

stated that economic status or

achievement is not a constitutionally

relevant factor: "We should say now, and

in no uncertain terms that a man's mere

property status, without more, cannot be

used by a state to test, qualify, or

limit his rights as a citizen of the

United States. . . . The mere state of

being without funds is a neutral fact--

constitutionally an irrelevance, like

race, creed, or color." Edwards v.

In a death sentencing context,

permitting a prosecutor to argue that a

victim's personal characteristics are to

be considered by the jury as a

"circumstance of the crime" and should be

weighed in the sentencing calculus

creates a impermissible risk that the

sentence will be imposed for

constitutionally irrelevant factors. In

the instant case, the jury was instructed

that it was to consider “the

circumstances of the crime" in its

decision.

The South Carolina prosecutor's use

of Mr. Haynes's particular religious

characteristics in urging the jury to

return a death sentence is especially

California, 314 U.S. 160, 184-85 (1941).

18 furner _v. Fouche, 396 U.S. 346

(1970) (limiting school board membership

to those who own property wholly irrational).

troubling. State v. Gathers, 369 S.E.2d

at 144 ("These remarks conveyed the

Suggestion appellant deserved a death

sentence because the victim was a

religious man and a registered voter.").

Although the religious practices of

a victim determined the amount of

punishment during the Feudal Age, the

factor is constitutionally irrelevant

under our system of criminal justice.19

19 the victim's religion might be

relevant co the death sentencing decision

if it was truly relevant as a

"circumstance of the crime," -- e.g.,*

because the defendant killed the victim

on the basis of his religion. As the

Booth Court recognized, victim

characteristics may constitutionally

enter the weighing process if those

characteristics were known to _ the

defendant and influenced his or her

conduct during the crime. Booth, 107 S.

Ct. at 2534. This is not the case here.

Contrary to Petitioner's post-hoc

rationalizations, there was no evidence

at trial that Respondent was aware of Mr.

Haynes' religious proclivities, read the

card that Mr. Haynes carried and which

the prosecutor read to the jury, or acted

on that knowledge.

Indeed, the First Amendment to the U.S.

Constitution prohibits the government

from discriminating on the basis of one's

religious beliefs or non-beliefs. See

Torcaso v. Watkins, 367 U.S. 488, 495

(1961) (government may not "pass laws or

impose requirements which aid all

religions as against nonbelievers"); see

also West Virginia State Board of Educ.

v. Barnette, 319 U.S. 624, 642 (1943)

("no official .. . can prescribe what

shall be orthodox in politics,

nationalism, religion, or other matters

of opinion") .29

Petitioner and Amici in support of

20 Booth did not have the occasion

to examine whether other constitutional

principles may prohibit the use of victim

characteristics. At least, with respect

to the prosecutor's classification based

on religious beliefs, Booth's prohibition

has constitutional authority apart from

Eighth Amendment jurisprudence.

Petitioner contend that Booth v. Maryland

removed "harm" as a consideration from

the death sentencing determination.;

Booth did nothing of the kind. The

"harm" that is always present in a murder

case is that a human being was killed.

Booth did not, and could not, remove that

tact from the sentencer's consideration.

What Booth precluded was the State from

attaching differential value to that

"harm" depending upon society's

assessment of the victim's social worth.

What Booth did is require the State to

recognize that the murder of any member

of our community deserves condemnation,

not just the members that society deems

worthy of protection.

CONCLUSION

Amici respectfully submits’ that

this case should not be the vehicle to

permit the social worth of the victim to

determine whether the death penalty is

appropriate and to overrule our

democratic traditions.

Respectfully submicted,

MICHAEL LAURENCE*

ACLU FOUNDATION OF

NORTHERN CALIFORNIA

PAUL L. HOFFMAN

JOAN W. HOWARTH

JOHN W. HEILMAN

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

Attorneys for Amici

*Counsel of Record

default.°

To reach a contrary conclusion could require the

Supreme Court of South Carolina to act in a manner which is

inconsistent with century old precedent and places this

Court in the partial position of moving to protect the

interests of one party litigant when that party has itself

neglected to do so. Application of this procedural rule,

therefore, could nowise be construed as constituting merely

an attempt to “evade review." See Konigsberg v. State Bar

of Calif., 366 U.S. 36, 82 S.Ct. 21 (1961); Henry v.

Mississippi, supra.

As ovreviously noted Demetrius Gathers has filed a

Motion for a Speedy Trial in the court which now has

jurisdiction over the matter. Consequently there is no

reason why Mr. Gathers cannot be retried at this time and

sentenced to life imprisonment. Therefore, any decision

rendered by this Court on Petitioner's request for

certiorari review would be advisory only on the scope of

Eighth Amendment law in that Gathers' death sentence cannot

be reinstated absent subject matter jurisdiction in the

State Supreme Court. Advisory opinions by this Court are

30n this ground cases such as Aetna Casualty Co. v.

Flowers, 330 U.S. 464, 67 S.Ct. 798 (1947) can be

distinguished. Those cases permit a recall of a federal

circuit court remand, and thus do not reach matters of state

court jurisdiction.

not favored, North Dakota State Board of Pharmacy v.

Snyder's Drugstores, Inc., 414 U.S. 156 (1973); Herb v.

Pitcairn, 324 U.S. 117, 65 S.Ct. 459 (1945), and can

encroach upon the plenary powers reserved by the state

Supreme Court. Johnson v. Radio Station WOW, 146 Neb.429,

19 N.W.2d 853 (1945). Also see United States v. Fruehauf,

365 U.S. 146, 81 S.Ct. 547 (1961) where this Court refused

to give an advanced expression of legal judgment upon issues

which remained unfocused. The Eighth Amendment question in

the present case is in a similar posture because we do not

know at this time the true nature of either the State's

theory of the case at resentencing or the evidence to be

introduced at that time.

CLARIFICATION OF OPINION

On October 25, 1988, Demetrius Gathers filed a "Motion

for Clarification of Opinion" with the Supreme Court of

South Carolina. To that motion on November 23, 1988,

Petitioner responded that the state Supreme Court lacked

jurisdiction to entertain such a request. While this Court

may remand a case foi clarification of opinion if it cannot

readily be discerned whether the opinion rests’. on

application of state law or federal law, Orr v. Orr, 440

U.S. 268, 277 99 S.Ct. 1102, 1110 (1979), we would submit

that such a remand by this Court could only be made if the

record shows that certiorari jurisdiction had _ been

established ab initio. As of the date of this motion, the

Supreme Court of South Carolina has not ruled on the Motion

for Clarification.

CONCLUSION

WHEREFORE, Demetrius Gathers would respectfully request

of this Court that the Petition for Writ of Certiorari be

dismissed as improvidently granted as a result of

Petitioner's procedural default; in the alternative and

subject to the foregoing prayer, we would request that this

Court stay the proceeding in this Court and remand the case

for clarification, Orr v. Orr, supra; in the alternative and

subject to the foregoing, we would request that the Petition

for Writ of Certiorari be dismissed without prejudice

pending the outcome of Respondent's Motion for Clarification

now pending in the state Supreme Court. Southern 4&4

Northern, etc., v. Public Utilities Comm. of Calif., supra.

Respectfully submitted,

This 7th Day of December, 1988.

EXHIBIT A

Che Supreme Court of South Carolina

?O 80x 11300

Cuma SC 221!

PHONE NO 734 1080

CLYDE N. DAVIS. JR

DEPUTY CLERK June 17, 1988

The Honorable Howard A. Taylor

Clerk of Court, Charleston County

P. O. Box 293

Charleston, SC 29401

Re: The State v. Demetrius Gathers

Dear Mr. Taylor:

Enclosed is the remittitur in the above case.

By copy of this letter, all counsel of record are advised of

the action of the Court.

Sincerely yours,

Chee R Mawes, \J,

CLERK Zs

CND,JR/csl

Enclosure

cc: Joseph L. Savitz, III, Esquire

Joseph F. Kent, Esquire

The Honorable Donald J. Zelenka

‘|

| Sanclin, moving that he se cranted a Speecy trial

STATE OF SOUTH CAXOLIXMA,

_ COUNTY OF CHARLESTON.

STATE OF SOUTH CAROLIXMA,

Vs.

DEYEIRIVS GATHERS,

Defencant.

Comes now, ris t by hi

vexmetrius Gathers, oy 2S Attorney, J. wescoat

October 27, 1082

~~ SS

EXHIBIT B

iN THE COURT CF GENERAL SESSIONS

CASE NO. FP -CS-fo--e ¥LE

MOTICN FOR SPEEDY TRIAL

cee EL MA

J. wesccat Sanclin

Attormmey for Defendant

18 Broac Street, Suite 304

Charleston, S.C. 29401

(603) 723-6559

| STATE OF SOUTH CAROLINA,

|| COUNTY OF CHARLESTON.

's c= OF SOUTH CAROLINA

Ez vs.

| cay ot Seen

Defendant.

Servace of a copy of the Motion For Speedy Trial in the above

J 1982 @

IN THE COURT OF GEXERAL SESSICNS

CASE NO. FF -C5--fo —p 4K

ACKNCWLEDGYENT OF SERVICE

SOLICITOR, NINTH JUDICIAL CIRCUIT

— action hereby ackmowledccec at Charleston, South Carol ana, tis

No. 88-305 RECTIVED

+S ce * ae

DEC - 9 1983

SUPREME COURT OF THE UNITED STATES ¢:; -- ~~ rac quer

suencnc count US.

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

PETITIONER,

DEMETRIUS GATHERS,

RESPONDENT.

CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that a true

copy of the Motion to Dismiss in the above entitled case has

been served upon opposing counsel, Donald J. Zelenka, Chief

Deputy Attorney General, by mailing one (1) copy in an

envelope properly addressed with postage prepaid this 7th

day of December, 1988.

Chief Attorney

ATTORNEY FOR PETITIONER.

SWORN TO BEFORE me this 7th day

of December, 1988.

c (L.S.)

t c ror South Carolina

My Commission Expires: _/~Z -7&

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