# Amicus Curiae Brief — South Carolina v. Gathers

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 805

## Text

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 > >

ii

26

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,

14

18

17

19

37

49

42

19

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 . . . . . . .

vi

17, 19
20, 46
47
passim
.s @@
47, 52
35

35

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

37

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

28

29

31

38

37

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

1

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.

2

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

3

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

5

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.

aE

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
8

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

9

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

10

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

11

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

12

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

13

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

l4

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.

15

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."

16

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

17

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),
18

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

19

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

20

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

21

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.").

22

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

23

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

24

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.

25

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

26

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

27

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

28

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.").

29

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

30

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

31

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.")

32

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

33

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).

34

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).

35

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.

36

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).
37

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).

38

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.

39

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

40

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,
41

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

42

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

43

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
register to vote.

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

44

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?

45

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:

46

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

47

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)).

48

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.
49

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).

50

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.

51

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.

52

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

53

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

54

oa

12

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.

B.

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.

13

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

14

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.

15

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

I
‘|
‘|

|

‘|

| 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,

i

|| 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

A)

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.
\X

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&

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0244%3A19. Public record. Not legal advice.