Amicus Curiae Brief — Hitchcock v. Dugger

o~ puis

No. 85-6756 - Supreme Court, U.S,

! ‘ ED

IN THE

SUPREME COURT OF THE UNITED spares” 6 1986

JOSEPH F. SPANIOL,

CLERK

October Term, 1983 _

JAMES ERNEST HITCHCOCK,

Petitioner,

vs.

LOUIE L. WAINWRIGHT, Secretary,

Florida Department of Corrections,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

Brief of Amici Curiae State of California,

by John K. Van de Kamp, Attorney General,

and County of Los Anseles, by Ira Reiner,

District Attorney,In Support of Respondent

JOHN K. VAN DE KAMP IRA REINER

Attorney General District Attorney

of the State of of Los Angeles

California County

MICHAEL C. WELLINGTON GEORGE M. PALMER

Supervising Deputy Deputy District

Attorney General Attorney

SUSAN LEE FRIERSON HARRY B. SONDHEIM

Deputy Attorney [Counsel of Record)

General Head Deputy

District Attorney

3580 Wilshire 849 South Broadway

Boulevard, Suite 800 llth Floor

Los Angeles, Los Angeles,

California 90010 California 90014

(213) 736-2236 (213) 974-5917 VV

TABLE OF CONTENTS

Interest of Amici Curiae

Summary of Argument

Argument

I

THE GRANTING OF AN EVIDENTIARY

HEARING AS REQUESTED BY PETI-

TIONER WILL LEAD TO DISCOVERY

WHICH WILL BE COSTLY, WILL

UNNCCESSARILY DELAY PROCEEDINGS,

AND WHICH CANNOT PROVE THAT

RACE WAS A FACTOR OPERATING IN

THE PARTICULAR CASE UNDIR RIVIEW

A. Data Gathering Is Essential

to a Statistical Chalienge

to the Death Penalty

B. Problems of Discovery

in Jackson

C. Conclusions to be Drawn

from the Jackson Case's

Discovery Process

II

PETITIONER DID NOT ASSERT A VIOLA-

TION OF HIS CIGHTH AND FOURTEENTH

AMCNDMENT RIGHTS TO BE FRIE FROM

CRUEL AND UNUSUAL PUNISHMENT WITH

HIS CLAIN THAT SOME GENERALIZED

ARBITRARINESS HAS RESULTED FROM

THE APPLICATION OF FLORIDA'S

CAPITAL SENTENCING SYSTEM

i.

il

12

27

31

TABLE OF CONTENTS

(Continued)

A. States Are Entitled to a

Death Penalty If Their

Capital Sentencing Systems

Are Properly Balanced

B. The Issue of the Constitu-

tionality of Florida's

Capital Sentencing System

Has Been Settled

C. Florida Cannot Fashion A "More"

Constitutional System Than The

One It Has

E. Conclusion

III

EVEN IF PLOTITIONER ASSERTED

A VIOLATION OF HIS EIGITH

AND FOURTEENTii AMENDMENT

RIGHTS, HE DID NOT ALLEGE

FACTS WHICH IF PROVED WOULD

SUPPORT HIS CLAIM

CONCLUSION

ii.

Pa ge

32

36

41

47

48

61

TABLE OF AUTHORITIES

Cases Page

Alexander v. Louisiana, °

405 U.S. 625 (1971) 45

Arlington Heights v. Metropolitan

Housing Corp., 429 U.S. 252

(1977) 45,46

Baldwin v. Alabana, U.S.

86 L.Ed.2d 300 (1985) 42

Barclay v. Florida, 463 U.S. 939

(1983) 36

Batson v. Kentucky, U.S.

90 L.Ed.2d 69 (1986) 45-46

Caldwell v. Mississippi, 472 U.S.

86 L.Ed. 2d 231 (1985) 45

Eddings v. Oklahoma, 455 U.S.

104 (1982) 33,34,35,39,41

Furman v. Georgia, 408 U.S.

238 (1972) 34,39,40,43

Godfrey v. Georgia, 446 U.S.

420 (1980) 44

Gregg v. Georgia, 428 U.S.

153 (1976)

33,34,37-38,40, 62

Griffin v. Municipal Court,

20 Cal.3d4 300 (1977) 11

iii.

Cases Page

Hazelwood School District v.

United States, 433 U.S.

299 (1977) 53

Hitchcock v. State,

413 So.2d 741 (Fla. 1982) 45

Jurek v. Texas, 428 U.S. 262 (1976) 33

Lockett v. Ohio, 438 U.S.

586 (1978) 34-35,38

Mayor v. Educational Equality

League, 415 U.S. 605 (1974) 52

McCleskey v. Kemp, 753

F.2d 877 (llth Cir. 1985) 30

Mctorquodale v. Balcom,

705 F.2d 1553 (llth Cir. 1983) 31

Memphis v. Greene, 451 U.S.

100 (1981) 46

People v. Frierson, 25 Cal.34

142 (1979) 4

People v. Jackson 28 Cal.34 264 (1980) 10

Pitchess v. Superior Court,

11 Cal.3d 531 (1974) 1l

Procunier v. Atchley,

400 U.S. 446 (1971) 32,47,48

Proffitt v. Florida, 428 U.S.

242 (1976) 33,36

iv.

TABLE OF AUTHORITIES

Cases Page

Pulley v. Harris, 465 U.S.

37 (1984) 4,43

Roberts v. Louisiana,

428 U.S. 325 (1976) 35,42

Shaw v. Martin, 733 F.2d 304

(4th Cir. 1984) 30-31

Smith v. Balcom, 660 F.2d 573

(Sth Cir. 1981) mod. 671 F.2d 858

(Sth Cir. 1982) 30,56

Spaziano v. Florida, 468 U.S.

447 (1984) 34,36

Spinkellink v. Wainwright,

578 F.2d 582 (Sth Cir. 1978) 31,32,40

Stephens v. Kemp, 464 U.S.

1027 (1983) 31,40

Townsend v. Sain, 372 U.S.

293 (1963) 32,47,48

Turner v. Murray, U.S.

90 L.Ed. 2d 27 (1986) 43

United States v. Conder,

423 F.2d 904 (Sth Cir. 1970) 11

Wayte v. United States,

470 U.S. 84 L.Ed. 2d 547 (1985) 46

Woodson v. North Carolina,

428 U.S. 280 (1976) 35,42

TABLE OF AUTHORITIES

Constitution Page

Eighth Amendment 31

Fourteenth Amendment 31,45

Statutes

SS 782.04 - Fla. Stats. (1985) 53,54

921.141 - Fla Stats (1985) 53,54

Pen. Code, § 190.2 14

Rules

Fed. Rules of Criminal Procedure,

Rule 16 ll

Miscellaneous

Gross & Mauro, Patterns of

Death: An Analysis of Racial

Disparities in capital Sentencin

and Homicide Wiittetestien 37

Stan.L.Rev. 27 (1984) 50,54,56,58,59

vi.

Amici curiae, the State of California

by John K. Van de Kamp, Attorney General,

and the County of Los Angeles, a political

Subdivision of the State of California by

Ira Reiner, District Attorney submit this

brief in support of respondent pursuant to

Rule 36.4 of the Rules of the Supreme

Court of the United States.

INTEREST OF AMICI CURIAE

John K. Van De Kamp, Attorney General

for the State of California and Ira

Reiner, District Attorney for the County

of Los Angeles, State of California,

jointly represent the People of the State

of California in the case of In re

Earl Lloyd Jackson, Crim. 22165, pending

before the California Supreme Court on

petition for writ of habeas corpus. Said

Case is pending before a referee appointed

by the California Supreme Court to take

evidence on three issues, one of which is

l.

highly pertinent to the instant case:

Whether "death sentences in California

have been discriminatorily imposed on the

basis of (1) the race of the victim;

(2) the race of the defendant; and/or

(3) the gender of the defendant. *"2/

Amici curiae have been litigating just

the discovery aspect of this case for over

two years. This order for a reference

hearing was granted on the basis of a

Statistical analysis of limited data on

death and life-without-possibility-of-

Parole (LWOPP) cases. It is the theory of

the defense in Jackson that a statistical

analysis of death and LWOPP cases will

Show that persons who kill white victims,

1. All of the factual representations

made in this brief are based upon matters

set forth in the record as well as the

personal experiences of the government

attorneys who have litigated, before the

California Supreme Court and its appointed

referee, the petition for writ of habeas

corpus in the Jackson case.

2.

and male, black defendants are more likely

to be charged with and to receive the

death penalty because of these unconstitu-

tional racial/gender factors than are per-

sons in other racial/gender categories.

Defendant Jackson, who is black, was

charged with murdering two elderly white

women in two separate burglaries of their

residences in August and September 1977.2/

These charges made him eligible for the

death penalty pursuant to California Penal

3/

Code section 190 et seq.— After a jury

2. The race of defendant Jackson as well

as the race of his two victims are not

alleged or referred to in the information.

3. The law under which Jackson was con-

victed and sentenced (Stats. 1977, Ch.

316), enacted August ll, 1977, requires

that one or more “special circumstances”

be alleged and found true by the trier of

fact before capital punishment may be

imposed. This law was repealed, and

essentially reenacted as modified, by the

"Briggs Initiative", passed by the voters

and effective November 7, 1978, princi-

pally to expand the number of special cir-

cumstances making a person eligible for

Capital punishment.

3.

fea

verdict finding him guilty as charged and

imposing the death penalty, a judgment

was rendered in March 1979, sentencing him

to death. On his automatic appeal to the

California Supreme Court, the judgment was

affirmed and a concurrent petition fo

writ of habeas corpus was denied. People

v. Jackson (1980) 28 Cal.3d 264. The law

under which defendant Jackson was

sentenced has been held constitutiona: on

its face by this Court and the California

Supreme Court. Pulley v. Harris, 465 U.S.

37 (1984); People v. Frierson, 25 Cal.3d

142, 172-195 (1979).

Defendant Jackson filed a subsequent

petition for writ of habeas corpus, which

is the basis for a reference hearing

Ordered by the California Supreme Court.

That court first ordered a reference

hearing to address two unrelated issues.

Defendant Jackson then moved to

expand the reference hearing on the theory

that a statistical analysis of capital

case data showed evidence of race and

gender discrimination in violation of the

Eighth and Fourteenth Amendments to the

Federal Constitution.

In support of his application, he

offered inter alia the declaration of

Dr. James Cole, Ph.D., a statistician, who

analyzed race and gender homicide data

published annually by the Bureau of

Criminal Statistics (BCS), a division of

the State Attorney General's office, anc

data supplied by the State Public

Defender's Office. Using a total of three

variables (victim race, defendant race,

defendant sex) for all state-wide

homicides, all state-wide robbery murders,

and all robbery-murders in Los Angeles

County, in various combinations of what is

5.

principally a cross tabulation analysis,

Dr. Cole concluded, without reference to

Other circumstances of any cases, that

killers of white victims are five times

more likely to receive the death penalty

than killers of non-white victims.

Similar high proportions were found for

Black and male defendants when compared to

Other groups.

On this basis, the reference hearing

Was ordered expanded to address the issue

of whether death sentences in California

have been discriminatorily imposed on the

basis of race of victim, race of defen-

dant, or gender of defendant.

Since a principal issue in the

instant case is whether petitioner

Hitchcock is entitled to a hearing on

Virtually the same issues, based on his

presentation of three general statistical

Studies of Florida capital cases, amici

6.

curiae have concluded that the outcome of

the instant case will have a substantial

impact upon the administration of criminal

justice, and the death penalty law in

particular, throughout California.

Amici's experience in the Jackson case has

made us familiar with the nature of the

discrimination issues and the arguments

offered by petitioner in this case.

Further, amici's experience in complying

with court-ordered discovery of a virtual

mountain of statewide California homicide

Gata, as well as an assessment of the

guality of that data, may prove to be of

value to this Court in deciding whether

petitioner Hitchcock should be permitted

to proceed with a hearing in the District

Court as he requests.

SUMMARY OF ARGUMENT

The District Court properly denied

petitioner's request for a hearing on his

7.

generalized claim that Florida's capital-

sentencing system is applied in an arbi-

trary, Capricious and irrational manner.

Petitioner was not entitled to a hearing

on this claim. He neither asserted a

deprivation of a constitutional right nor

alleged facts which would establish one.

Petitioner offered only unsupported and

contradicted statistical conclusions of

disparate impact of the death penalty in

Florida. His claim and his showing were

inadequate as a matter of law.

When a state imposes its death

penalty under a constitutional system

which by its very design minimizes any

risk of arbitrariness, generalized claims

of arbitrariness in the imposition of that

State's death penalty should be foreclosed.

Only a particularized and factually

Supported claim of purposeful invidious

discrimination in the imposition of

petitioner's own death sentence should

have entitled petitioner to a hearing.

The effect of entertaining

generalized attacks on a facially

constitutional capital-sentencing system

is to undo the last ten years of judicial

effort to fashion standards for a

constitutional death penalty. It is also

to undo the last ten years of legislative

effort to respond to those standards. A

state which has successfully endeavored to

institute a constitutional capital-

sentencing system should not be required

to repeatedly defend that system against

generalized claims of arbitrariness and

the accompanying related barrages of

Onerous discovery requests.

Finally, granting such a hearing will

lead to a costly and time-consuming data

gathering process which will not result in

either reliable data or a reasonable

Chance of success by petitioner.

ARGUMENT

I

THE GRANTING OF AN EVIDENTIARY

HEARING AS REQUESTED BY PETI-

TIONER WILL LEAD TO DISCOVERY

WHICH WILL BE COSTLY, WILL

UNNECESSARILY DELAY PROCEEDINGS,

AND WHICH CANNOT PROVE THAT

RACE WAS A FACTOR OPERATING IN

THE PARTICULAR CASE UNDER REVIEW

The issue in the instant case

includes whether the District Court erred

in denying petitioner an evidentiary

hearing to consider whether Florida's

death penalty law is being unconstitu-

tionally applied on the basis of race of

Victim and gender of defendant. In the

Jackson case, Supra, the California

Supreme Court has already decided to grant

Such a hearing. What follows is a

description of the discovery process which

has occurred thus far in Jackson. This

Giscovery process is itself a strong

10.

reason for upholding the District Court's

decision not to grant a hearing in

Hitchcock.

A. Data Gathering Is Essential

to a Statistical Challenge

to the Death Penalty

Data gathering must take place before

a statistical challenge to the death

penalty can be mounted. Thus, the fact

that the law of discovery in California is

Mot precisely parallel to the federal law

of discovery (compare: Rule 16, Fed. Rules

of Crim. Proc.; United States v. Conder,

423 F.2d 904, 909-911 (6th Cir. 1970);

Pitchess v. S"perior Court, ll Cal.3d 531

(1974); Griffin v. Municipal Court, 20

Cal.3d 300 (1977), is unimportant. More-

over, the fact that data may be gathered

in advance of a particular case, not pur-

Suant to court order, is not significant.

Regardless of who gathers the data, it

will be expensive and time-consuming.

ll.

Further, it may result in substantial

delay of the proceedings, and the data

collected through this process will be

neither complete nor accurate in terms of

a full and fair description of the cases

from which the data is derived.

B. Problems of Discovery

in Jackson

Defendant Jackson moved for discovery

Of homicide data throughout the state.

This proved to be a motion to compel the

People to provide a mountain of homicide

data from throughout the state,

notwithstanding that much of the data is a

Matter of pudlic record and equally

available to the defendant and his

lawyers.

Jackson requested the People provide

the defendant's name, case number, age,

race and gender, and the victim's age,

race and gender in each of four broad

Categories of homicide cases, from

12.

August 11, 1977 to the present. This was

evidently designed to separate all cases

in which special circumstances were

alleged in the indictment or information

from similar cases in which no special

circumstances were alleged. A substantial

body of other data and information, some

of it readily available to the defendant

and his attorneys without the use of

subpoenas, was also requested.

Although the data was not located in

any single county or other location, and

although the District Attorney of

Los Angeles County has no jurisdiction or

control over most of the data nor a legal

duty to maintain such data, over the

People's objection the referee ordered the

People "through the District Attorney of

Los Angeles County” to provide defendant

with homicide data from throughout the

state in each of four broad categories, as

13.

well

as other data. 4/

Specific data requested by Jackson on

Of defendant and victim was not

The order, as amended, describes the

as follows:

"(a) The defendant's name, case

number and county of venue of each

homicide prosecution for an offense

occurring on or after August ll,

1977, in which any special circum-

stance was alleged, and which

resulted in at least one conviction

of murder in the first or second

degree or manslaughter.

"(b) The defendant's name, case

number, and county of venue Of each

homicide prosecution for an offense

occurring on or after August ll,

1977, in which no Special circum-

stance was alleged, but which

resulted in (1) conviction for murder

in the first or second degree or

manslaughter, and (2) a conviction

for any felony enumerated in Penal

Code section 190.2, subdivision

CBP CEVP se © @ «

"(c)(1) The defendant's name, case

number, and county of venue of each

homicide prosecution for an offense

occurring on or after August ll,

1977, in which no Special circum-

stance was alleged, but which

resulted in at least one conviction

for first degree murder and at

least one other conviction for at

14.

ordered provided subject to a subsequent

request by the defendant. In addition,

the District Attorney of Los Angeles

County was ordered to provide a complete

set of its own Special Circumstance

(capital eligible) case files, comprising

some 900 plus cases in which special

circumstances were initially alleged in

the indictment or information. Also

ordered provided were copies of each of

the computer tapes produced and maintained

by (BCS) as well as any Surveys, reports,

or compilations of data concerning

information on capital eligible cases

least second degree murder; and

"(2) The defendant's name, case

number, and county of venue of each

homicide prosecution occurring on or

after August 11, 1977, in which no

special circumstance was alleged, but

which resulted in the first degree

murder conviction of a defendant who

had previously been convicted of a

first degree or second degree

murder.”

15.

which may be or will be prepared by or for

the District Attorney or the California

Attorney General.

Since most of the homicide data was

outside Los Angeles County, and since only

the Clerk of the Superior Court of each

county is required by law to maintain such

information, immediately following the

referee's first order of June 26, 1985,

the People sent letters to the Clerks of

the Superior Court in each of California's

58 counties, asking whether such informa-

tion was available, how much time it would

take to obtain it, and what the estimated

cost of such effort would be .2/ The

responses were virtually unanimous in

5. The People considered using District

Attorneys’ offices throughout the state as

a source of data. However, this was

unworkable, since District Attorneys are

not required by law to maintain such data

and do not generally maintain such data in

readily retrievable form, if at all.

16.

indicating that the data was not on

computers, was not readily available, that

a hand search of hundreds if not thousands

of individual court files wou?3 be

required in most of California's counties,

and that the process would be laborious,

time-consuming ard expensive. The Clerk's

responses are best exemplified by the

Los Angeles County Clerk's response:

"Justice Jefferson's [the referee)

discovery order is unprecedented in

its scope and, based on the volume of

Cases to be made available to the

petitioner, constitutes an extraordi-

nary request which exceeds our legal

duties to provide cases files for

review. Staff is not provided in our

Current budget allocation to pull the

large number of files involved and

perform whatever other tasks may be

required. To avoid disrupting the

normal flow of court business and case

processing, staff will be required to

work overtime.

"Also, it is important to note that

Our record maintenance systems were

never designed to respond to this type

of request and, therefore, the identi-

fication and pulling of these files

will be a tedious, manual process. This

Order appears to require the performance

17.

of tasks beyond our legally mandated

duties to maintain cases files and

related indices of those files."

Thus, although computers are used in

some Clerks’ offices in this state, that

Gid not make this an easy task. Some

Clerks' offices do not yet use computers.

Of those that do, such as Los Angeles

County, the computers are not and cannot

be programmed to enable these specific

bits of information to be retrieved.

Indeed, not one Clerk's office in this

State maintains the data sought by

defendant Jackson, particularly data on

race of victim and defendant, in readily

retrievable form because there has never

been a need for such data.

As a consequence of this near total

absence of readily available data, it was

anticipated that each Clerk's Office would

check the register of actions and make a

list of all homicide cases after which the

18.

file for each case would be separately

reviewed to determine whether the case

fell within one of the four categories.

A hand search of thousands of

individual files to determine what the

original charges were, when the offenses

occurred, whether special circumstances

were alleged, and what the outcome of the

case was, is no small task. For example,

the official superior court file in the

Jackson cases consists of two files, each

approximately two inches thick. To obtain

the desired data, a clerk must find the

information or indictment and any

amendments thereto, all the verdict forms,

and any documents which show the

defendant's prior record. Assuming the

Clerk is familiar with the California

Penal Code, the Clerk can then read these

documents to obtain the desired

information.

19.

In an effort to persuade the referee

that the order of discovery was not only

contrary to law but very costly and

difficult to comply with, the People filed

a Motion for Reconsideration. The

referee, however, denied this motion and

Ordered discovery to proceed on January

10, 1986. The People then sought review

of this order by the California Supreme

Court but also commenced the process of

obtaining the data. The process began

wrth the People serving subpoenas duces

tecum upon the Clerk of the Superior Court

of each of California's 58 counties,

requesting four lists of cases, exactly as

described in the order of discovery. In

Order to do this, each clerk was served

with a subpoena duces tecum and a cover

letter, explaining the nature of the

request.

20.

Shortly after this was done, however,

the referee issued a new discovery order

changing one paragraph of his earlier

order and the California Supreme Court

followed this by denying the People's

request to quash the referee's order, but

modified that order by changing yet anoth-

er paragraph. This necessitated a second

complete set of subpoenas auces tecum

being served upon the Clerks, each with a

new cover letter explaining the changes.

Many Clerks' offices had acted to

comply with the first subpoena duces

tecum. Thus, when the second subpoena

duces tecum was served upon them,

requesting somewhat different data, a

second intensive effort was required to

comply with the subpoena.

To assist the Clerks in identifying

these cases, relevant albeit incomplete

data was also subpoenaed from the

21.

Administrative Office of the Courts and

the State Public Defender. This data,

together with additional data obtained

without subpoena from the State Department

of Corrections, was provided to the

Clerks. However, the process of obtaining

even this limited data was time-consuming

and, thus, was only marginally helpful to

the Clerks.

Almost all of the Clerk's Offices had

Gifficulty understanding the nature of

this complicated request for data. Many

letters and long-distance telephone calls

were necessary to answer questions by the

Clerks. Indeed, some Clerks' Offices

never completely understood the subpoenas

and, thus, required virtual total guidance

by lawyers from the Attorney General's and

the District Attorney's Offices to obtain

the data. This task of obtaining the data

from Clerks kept two goverament lawyers

22.

busy almost full-time for six months; two

additional lawyers also occasionally

assisted in this effort.

As a consequence of the large volume

and complicated nature of the data sought,

a substantial portion of Clerks’ responses

were incomplete, in error, or both. Many

responses had to be returned because they

were obviously incomplete and in error.

Even now, after six months of effort by

government attorneys to obtain this

limited data, it appears that significant

portions of the data are subject to

substantial error.

Los Angeles County itself is the best

€xample. The Los Angeles County Clerk's

Office is the largest clerk's office in

the state, with approximately 2,060

employees, whose duties included hancling

in excess of 32,000 felony filings in 1985

alone. Although this Office relies

23.

heavily upon computers to accomplish its

assigned tasks, the computers could not be

used to produce the data requested. The

Clerk's Office responded to our second

Subpoena duces tecum with 130 pages of

materials, covering approximately 750

cases, and including several copies of

Informations verbatim because the clerks

could not understand them. Subsequently,

when a problem arose as a result of

comparing this data with another

compilation of data, the People found it

necessary to check the accuracy of the

Clerk's data. A government lawyer spent

approximately two weeks checking each of

250 case files and found the data is

Subject to a 50% plus error rate. It was

later determined that the Clerk's Office

tried to circumvent the necessity of

Checking every individual case file by

relying only upon the register of actions,

24.

which contained many errors and

omissions.

The People were also ordered to

provide copies of several computer tapes

created from data collected by the Bureau

of Criminal Statistics and produced by

that agency.

When the discovery request was made,

Jackson's attorneys were advised that the

computer tapes could not be used in

conjunction with each other because there

was no way to combine one set of tapes

limited to victim data with another set of

tapes limited to defendant data.

Defendant Jackson's attorneys were further

advised that the data on these tapes was

incomplete due to a 30% routine

underreporting factor by police agencies

which supplied the raw data. Moreover,

before the tapes could be used, BCS was

required to write a special users’ manual

25.

for each tape. When this was done, the

tapes and the manuals were turned over to

Jackson's attorneys for analysis. Now

Jackson's attorneys have discovered the

Problems associated with combining the

data on the Computer tapes and have

advised us that additional discovery may

be required to solve this problem.

Not only has discovery in Jackson

been difficult to accomplish, it also has

been inordinately time-consuming.

Although the order establishing ruce and

gender discrimination as issues to be

addressed at the reference hearing was

filed on May 3, 1984, the discovery motion

in Jackson was not filed until January

1985. Because the People firmly believed

(and still do) that the discovery request

by Jackson's attorneys far exceeded the

bounds of law and reason, the motion for

discovery was intensively litigated,

26.

As might be expected from a case of

this importance and magnitude, once the

initial order granting discovery was made

on June 26, 1985,£/ defendants in other

death penalty cases throughout this state

followed suit with similar discovery

requests. Thus, throughout the state, in

numerous cases, at various stages of their

litigation, defendants filed such discov-

ery motions.

Cc. Conclusions to be Drawn

from the Jackson Case's

Discovery Process

Several troubling conclusions stand

Out as a result of the discovery process

in Jackson. (1) Most of the data is a

matter of public record and could have

6. The referee's first order of discov-

ery was filed on June 26, 1985. However,

at the People's request, this order was

reconsidered. Subsequent litigation

resulted in the California Supreme Court's

order largely affirming the referee on

March 20, 1986.

27.

been obtained much earlier by Jackson's

attorneys. (2) The time thus wasted,

together with the time spent litigating

discovery, has contributed to the inordi-

nate delay of the resolution of the issues

pending in this case. (3) The qualified

success by Jackson's attorneys of

obtaining discovery in this case has

spawned virtually identical albeit

specious discovery motions in numerous

other death penalty cases throughout this

State. Thus, unnecessary litigation has

been created for the system. (4) The

discovery process in Jackson, which is not

yet concluded, has been very expensive

when one considers all of the Clerks'

offices (58 of them) as well as the many

persons involved in this effort. (5) The

product of this discovery is highly

questionable. The data from the Clerks'

offices contains no information on race or

28.

gender. The data is, thus, useless by

itself. It must be collated with other

data--race/gender of defendant, race of

victim--before it will have even marginal

utility. (6) The quality of even this

limited data is suspect. Amici's

experience with this case leads to the

conclusion that substantial error may be

present in the Clerks’ data. This,

together with the acknowledged 30% under-

reporting error in BCS data, suggests that

any statistical analysis of even this very

limited data will be useless because con-

Clusions obtained from such data will be

invalid as a matter of law. (7) Finally,

even if the data obtained through this

discovery process included race and gender

information, and even if the data was

accurate and, thus, of high quality, peti-

tioner Jackson in California, like

petitioner Hitchcock in Florida, could not

29.

prove that which they seek to prove--that

race and gender are factors influencing

juries and judges in making decisions in

capital cases.

If the process of discovery promised

something of value it might be justifi-

able, but as demonstrated in McCleskey v.

Kemp, 753 F.2d 877 (llth Cir. 1985)

petition for writ of cert. granted July 7,

1986 (54 U.S.L.W. 3866), statistical

methods are inadequate for grappling with

the factual and legal issues presented.

While the hearing in McCleskey was itself

grimly extensive, the one still hovering

in Jackson is institutionally frightening.

No such burdens should be born by our

judicial system on the strength of such

generalized claims as are presented here.

Smith v. Balcom, 660 F.2d 573 (5th Cir.

1981) as modified 671 F.2d 858, 860 (Sth

Cir. 1982); Shaw v. Martin, 733 F.2d 304,

30.

311-313 (4th Cir. 1984); Spinkellink v.

Wainwright, 578 F.2d 582, 612-614 (Sth

Cir. 1978); McCorquodale v. Balcom, 705

F.2d 1553, 1556 (llth Cir. 1983); Stephens

v. Kemp, 464 U.S. 1027, 1030, fn. 2 (1983)

(Powell J., dissenting).

II

PETITIONER DID NOT ASSERT A

VIOLATION OF HIS EIGHTH AND

FOURTEENTH AMENDMENT RIGHTS

TO BE FREE FROM CRUEL AND

UNUSUAL PUNISHMENT WITH HIS

CLAIM THAT SOME GENERALIZED

ARBITRARINESS HAS RESULTED

FROM THE APPLICATION OF

FLORIDA'S CAPITAL SENTENCING

SYSTEM

In his petition for writ of habeas

corpus, petitioner claimed that Florida's

death sentencing system violates the

Eighth and Fourteenth Amendments because

it results in the death penalty being

applied in Florida in an arbitrary, capri-

cious and irrational manner. Petitioner's

attack is on the system itself and on the

system as a whole. He makes no assertion

31.

the alleged arbitrariness is intentional

Or that he personally was subjected to

invidious discrimination in his sen-

tencing, or that, under the facts in his

case, that his death sentence is in any

other respect cruel and unusual punish-

ment. Amici curiae urge that, in a state

with a facially valid capital sentencing

System, such non-individualized disparate

impact claims as petitioner's should be

foreclosed as not asserting a violation of

petitioner's constitutional rights. See

Procunier v. Atchley, 400 U.S. 445, 451

(1971); Townsend v. Sain, 372 U.S. 293,

312 (1963); also Spinkellink v.

Wainwright, Supra, 578 F.2d at 613-614.

A. States Are Entitled to a

Death Penalty If Their

Capital Sentencing Systems

Are Properly Balanced

It is now beyond question that states

are constitutionally permitted to select

the punishment of death for the crime of

32.

murder. Gregy v. Georgia, 428 U.S. 153

(1976); Proffitt v. Florida, 428 U.S. 242

(1976); Jurek v. Texas, 428 U.S. 262

(1976).

However, in recognition of the unique

nature of the punishment, a state's

capital-sentencing system must accommodate

both a sensitivity to the uniqueness of

each defendant and case and a concern for

consistent application of the sentence.

These "twin objectives" exist in a state

of balanced tension and the Court's deci-

sions make it clear that maintaining the

balance is the key to the constitutional

validity of the death penalty. Cddings v.

Oklahoma, 455 U.S. 104, 110-211 (19382).

To provide "measured, consistent

application," a state's capital-sentencing

system must itself "be suitably directed

and limited so as to minimize the risk of

wholly arbitrary and capricious action”

33.

(the particular concern expressed by the

Court in Furman v. Georgia, 403 U.S. 238

(1972)) by means of a “carefully drafted

Statute that ensures that the sentencing

authority is given adequate information

and guidance." Eddings v. Oklahoma,

Supra, at 111; Gregg v. Georgia, supra at

189, 195. The system must thus be able to

"rationally distinguish between those

individuais for whom death is an appro-

Priate sanction and those for whom it is

not." Spaziano v. Florida, 468 U.S. 447,

460 (1984).

In addition, to provide what the

Court has called "fairness to the

accused," the sentencing authority must

take into account "any aspect of a defen-

Gant's character or record and any of the

Circumstances of the offense that the

defendant proffers as a basis for a

sentence less than death." Lockett v.

34.

Ohio, 438 U.S. 586, 604 (1978); Eddings v.

Oklahoma, supra, at 11ll, 113-114. This

requirement necessarily dictates that the

sentencing authority be given discretion

to decide the penalty of death, on the

basis of all the facts presented to it.

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

(1976); Roberts v. Louisiana, 428 U.S. 325

(1976).

Thus, the Constitution requires that

the sentencing authority's discretion be

limited enough to provide some consis-

tency, but yet be kept abroad enough to

properly bring the subjective conscience

of the community to bear on the unique

circumstances of each case. Once a state

has provided for these delicately balanced

concerns, the state is permitted under the

Constitution to select death as a penalty

for the crime of murder.

35.

B. The Issue of the Constitutionality

of Florida's Capital Sentencing

System Has Been Settled

No less than three times the Court

has concluded that Florida's Capital-

sentencing system has successfully “struck

a reasonable balance between sensitivity

to the individual and his circumstances

anc ensuring that the penalty is not

imposed arbitrarily or discriminatorily."

Spaziano v. Florida, Supra, 468 U.S. at

464-465; Barclay v. Florida, 463 U.S. 939,

952-958, 958-967 (1983); Proffitt v.

Florida, Supra, 428 U.S. 222, 252-253,

260-261. Nevertheless, the petitioner

Claims Florida's Capital-sentencing system

itself is unconstitutional because, as

applied, it results in some arbitrariness.

We are a nation of laws implemented

by humans incapable (and undesirous) of

machine-like consistency. A capital-

sentencing system cannot be Statistically

36.

programmed to spew out the appropriate

sentence for each defendant convicted for

a capital crime. To do so woulc be to

eliminate the judge and jury from the

process. Clearly, we have no choice but

to rely on humans. If the thousands of

judges and jurors who sit on this

country's capital cases are, as a class,

biased, then the tens of thousands of

judges and jurors who sit on other crimi-

nal cases are biased. No guilt or penalty

decision in any criminal case would be

free of that bias. No properly constitu-

ted jury could ever be impaneled. As

noted by Justice White in his concurring

Opinion in Gregg v. Georgia, supra, at

226:

"Petitioner has argued, in effect,

that no matter how effective the death

penalty may be as punishment, govern

ment, created and run as it must be by

humans, is inevitably incompetent to

administer it. This cannot be

37.

accepted as a proposition of constitu-

tional law."

When crimes are committed, society

must protect itself by punishing the

wrongdoers. Certainly petitioner's clair.

could not have been taken seriously if he

had asserted that Florida's entire criminal

sentencing system, non-capital as well as

capital, was unconstitutional because of

some arbitrariness in its application and

therefore that all resulting sentences and

sanctions should be stricken. His claim

is not made more tenable by limiting his

assault only to death sentences. To be

sure, the penalty of death is

fundamentally different from the penalty

of imprisonment, but a state satisfies the

constitutional imperative of that

Gifference by establishing a capital-

sentencing system which meets the stan-

Gards of Gregg and Lockett and their

progeny. Once those standards are met, as

38.

they are here, petitioner's claim has no

greater power than it would in a simple

burglary case.

In Furman v. Georgia, supra, 408 U.S.

238, the Court addressed with great diffi-

Culty a generalized claim of arbitrariness

in the imposition of the death penalty.

Since then the court has labored hard “to

provide standards for a constitutional

Geath penalty" which would remedy the

arbitrariness condemned in Furman and

Obviate the need to address generalized

Claims of such arbitrariness. See Eddings

v. Oklahoma, supra, at lll. For the Court

to once again entertain these generalized

attacks would be to cast aside not only

the Court's labor of the last ten years

but also that of the States which have

endeavored to meet the Court's standards.

Having met these standards, Florida should

not be put to the task of having to

39.

repeatedly defend its capital sentencing

system against generalized claims of

disparate impact.

We urge that a state capital

sentencing system which meets the guide-

lines of the Court's post-Furman cases is

presumptively free of the generalized

arbitrariness condemned in Furman. See

Spinkellink v. Wainwright, supra, 578 F.2d

582, 599-606, 613-614. As noted by

Justice Powell, who was joined by Chief

Justice Burger and Justices Rehnquist anc

O'Connor, in a dissent from the grant of a

stay in Stephens v. Kemp, 464 U.S. 1027,

1030-1031 fn. 2 (1983):

"Surely, no contention can be made

that the entire Georgia judicial

system, at all levels, operates to

Giscriminate in all cases. Arguments

to this effect may have been dizected

to the type of statutes addressed in

Furman v. Georgia, 408 U.S. 238

(1972). AS Our subsequent cases make

Clear, such arguments cannot be taken

seriously under statutes approved in

Gre v. Georgia, 428 U.S. 153

976)."

40.

Cc. Florida Cannot Fashion A "More"

Constitutional System Than The

One It Has

To strike Florida's capital-

sentencing system as unconstitutional on a

generalized claim of arbitrariness would

in effect deprive the State of Florida

from ever having a capital-sentencing

System. Any subsequent legislative

efforts to further "minimize the risk of

wholly arbitrary and capricious action"

beyond the present constitutional system's

attempts would invariably run afoul of the

Other objective recuired in a Capital-

sentencing system, i.e., a sensitivity to

the uniqueness of the individual. The

delicate balance required by the Court

would inevitably be disrupted. See

Eddings v. Oklahoma, supra, 455 U.S. at

110-111. The only cure for the arbitrari-

ness petitioner alleges would be to reduce

the amount of discretion available to the

4l.

sentencing authority. This, however,

would result in nearly mandatory deatn

sentences which are as constitutionally

prohibited as are wholly unguidea ones.

Id. at 111-112; Baldwin v. Alabama,

0.8. 9 ; 86 L.Ed.2é 300, 307-303

(1985); Woodson v. North Carolina, supra,

428 U.S. 280, 301-305 (1976); Roberts v.

Louisiana, supra, 428 U.S. 325, 331-336

(1976). Since Florida cannot fashion a

"more" constitutional system than the one

it has, the choice is either the current

system or none at all.

Although the risk of arbitrary and

Capricious action can be minimized by a

Capital-sentencing scheme, the risk cannot

be fully eliminatec in a system which also

must provide discretion for the sentencing

authority to consider the circumstances of

the offense and the defendant's character

Or record before imposing a death

42.

sentence. An inevitable by-product of

this latter requirement is that in the

course of exercising the discretion

necessary to comply with it, the state's

sentencing authorities may render

apparently inconsistent decisions. This

is inherent in the balance struck by the

Court's post-Furman cases and, of course,

does not necessarily reflect arbitrariness

Or Capriciousness. Turner v. Murray,

U.S. ’ ; 90 L.EG.29d 27, 35-36

(1986). As the Court has recognized:

"Any capital sentencing scheme may

occasionally produce aberrational

Outcomes. Such inconsistencies are a

far cry from the major systemic

defects identified in Furman. As we

have acknowledged in the past, ‘there

Can be "no perfect procedure for

deciding in which cases governmental

authority should be used to impose

death."' [Citations omitted.]" Pulley

v. Harris, supra, 465 U.S. at 54.

43.

D. Both A Claim of Arbitrary Action

in Petitioner's Own Case and A

Claim That the Alleged Arbitrary

Action Has An Invidious

Discriminatory Purpose Should Be

Required

None of the above discussion is meant

to suggest that arbitrary action in the

imposition of the death penalty is

condoned. It is not. However, for the

reasons indicated above, claims of

arbitrary action under a system which is

constitutional as drafted and interpreted

should be required to focus on the

individual cases in which the arbitrari-

ness is alleged to have occurred and

shovld be directed to individual sen-

tences, not to the system as 4 whole.2”

7. Of course, if the claims of arbitra-

riness are founded in an assertion that

the capital-sentencing system is invalid

because of the way it has been drafted or

interpreted, those claims will always be

entertained. See Godfrey Vv. Georgia, 446

U.S. 420 (1980).

Also, in some instances evidence as to

how the system is operating as a whole may

44.

See Caldwell v. Mississippi, 472 U.S. ’

; 86 L.Ed.2d 231 (1985). Petitioner

should have to show why his death sentence

is cruel and unusual punishment for the

crime he committed. See Hitchcock v.

State, 413 So.2d 741 (Fla. 19382).

Additionally, where the alleged

arbitrariness suggests unlawful discrimi-

nation on the part of the state, the

Claims must include an assertion of

invidious discriminatory purpose.

Allegations of invidious discrimina-

tory purpose have long been required in

Claims of unlawful discrimination under

the Equal Protection Clause of the

Fourteenth Amendment. Batson v. Kentucky,

be relevant to the ultimate determination

of whether there was unlawful action in

the individual case. The focus of the

Claim, however, would remain on the

individual case. Arlington Heights v.

Metropolitan Housing Corp., 429 U.S. 252,

264-266 (1977); Alexander v. Louisiana,

405 U.S. 625, 630-632 (1971).

45.

U.S. 7 ; 90 L.Ed. 2d 69, 80-82

(1986); Memphis v. Greene, 451 U.S. 100,

119 (1981); Arlington Heights v.

Metropolitan Housing, supra, 429 U.S. at

265. Similarly, where a due process claim

under the Fifth Amendment has been deemed

to contain an equal protection component,

there is a requirement of an “invidious

discriminatory purpose" allegation. Wayte

v. United States, 470 U.S. P ; 84

L.Ed.2¢ 547, 556 fn. 9 (1985).

It follows, therefore, that to the

extent cruel anc unusual punishment claims

under the Eighth Amendment contain an

equal protection concern that the death

penalty not be imposed dSiscriminatorily,

they also must include an assertior of

invidious discriminatory purpose to be

Cognizable. The basic thrust of the

Claims are the same: governmental action

46.

has resulted in invidiously discriminatory

impact.

E. Conclusion

On its face, petitioner's sentence of

death is neither arbitrary nor capricious.

Neither is the system under which peti-

tioner was sentenced to death. Since

petitioner made no claim that in his own

Case the death penalty was purposely

applied in an invidiously discriminatory

manner on him, he did not fashion a Clain

which assertec a violation of his consti-

tutional rights, and the District Court

properly denied petitioner's request for

an evidentiary hearing. See Procunier v.

Atchley, supra, 400 U.S. at 451; Townsend

v. Sain, Supra, 372 U.S. at 312.

47.

III

EVEN IF PETITIONER ASSERTED

A VIOLATION OF HIS EIGHTH

AND FOURTEENTH AMENDMENT

RIGHTS, HE DID NOT ALLEGE

FACTS WHICH IF PROVED WOULD

SUPPORT HIS CLAIM

Petitioner's claim is directed at

Florida's entire capital-sentencing system

itself. If a hearing on that claim was

not foreclosed for the reasons previously

set forth, petitioner was still required

to allege facts in support of his claim

which, if proved, would have entitled him

to the relief sought. See Procunier v.

Atchley, supra; Townsend v. Sain, Supra.

Petitioner's showing in this regard was

inadequate as a matter of law.

The sole proffered factual support

for petitioner's claim consisted of

general statistics. Asserted in his

petition for writ of habeas corpus were

Statistics, among others, that ".. .

Orange County sentences to death 54.2% of

48.

the persons convicted of first degree

murder in which a felony is involved,

compared to 32.0% in other metropolitan

areas. . .. {[O}nly 1.6% of women

indicted for first degree murder received

the death penalty . . . compared to 12.4%

of men indicated for first degree murder.

+ « « Among persons indicted for first

degree murder, 11% received the death

penalty if their victims were in skilled

jobs, and 27% received the death penalty

if their victims were in professional

jobs. . .. Of those persons...

Charged with the murder of a white victim,

16.5% received the death penalty, compared

to only 2.8% of those charged with the

Murder of a black victim. ..."

In addition to his initial proffer,

petitioner filed a tentative draft of a

Study by Professors Gross and Mauro "as a

Supplemental appendix ‘to show a prima

49.

facie basis for [his] claim... and for

discovery concerning the issue.' Rlll.

The study has since been published as

Gross & Mauro, Patterns of Death: An

Analysis of Racial Disparities in Capital

Sentencing and Homicide Victimization, 37

Stan.L.Rev. 27 (Nov. 1984)." See

Petitioner's Brief on the Merits, p. 52

fn. 58. The statistically-based conclu-

sion of Professors Gross and Mauro

presented to the District Court was that

"[iJn Florida the overall odds of an

offender receiving the ceath penalty for

killing a white victim were 4.8 times

greater than for killing a black victim."

Gross & Mauro, Supra, at 78-79.

It is evident that all petitioner

offered in support of his request for an

evidentiary hearing were superficial

disparities in the rates the death penalty

is imposed. He assumes, and would have

50.

had the District Court assume, that those

Gisparities reflect arbitrariness in the

imposition of death sentences in Florida.

This is an unfounded assumption.

There may be a "disparity," for

example, between the percent of women

indicted for murder who receive death

sentences when compared to the percent of

Men indicted for murder who receive death

sentences. However, this “disparity”

would hardly be a reflection of arbitrari-

ness if it were merely a reflection of the

qualitatively and quantitatively different

Ways in which men and women kill. The

disparity itself does not shed light on

whether it is an arbitrary one. Likewise,

the other reported inconsistencies no more

Support petitioner's conclusion of arbi-

trariness in the imposition of death

sentences in Florida than other more

Constitutionally acceptable conclusions

Sl.

that Oranye County is the hapless host of

more than its share of Florida's worst

murders, that persons better off ina

socio-economic sense are more likely than

poorer persons to be targets of capital

eligible type murders such as killings in

the perpetration of a robbery or burglary,

and that white persons are generally more

likely than black persons to be the

targets of these types of murders.

Petitioner's reportec statistical

disparities have no probative value in and

of themselves.

Another way to look at the inade-

guacies of the disparities presented by

petitioner is the irrelevancy of their

comparisons. They are as “meaningless” as

the racial-composition percentage compari-

sons rejected by the Court in Mayor v.

Educational Equality League, 415 U.S. 605,

620-621 (1974) for not being comparisons

52.

of persons in similar POSitions. “When

Special qualifications are required to

fill particular jobs, comparisons to the

general population (rather than to the

Smaller group of individuals who possess

the necessary qualifications) may have

little probative value." Hazelwood

School District v. United States, 433 U.S.

299, 308 fn. 13 (1977).

In the context of the instant case,

there are particularly special qualifica-

tions required of persons who kill to make

them eligible for a death sentence. Not

Only do they have to be arrested, charged,

and found guilty beyond a reasonable doubt

of first degree murder, they also must be

associated with at least one Statutory

aggravating circumstance. See

$5 782.04(1), 921.141(5) (6), Fla. Stats.

(1985). All of petitioner's comparisons

are to a considerably more general

53.

population of killers than this narrow

category.

Petitioner compares the death

sentence group to groups in which the

killers were only suspected of committing

a homicide, 2/or only charged with murder,

or only convicted of first degree murder,

or only convicted of first degree murder

when some other type of felony was also

involved. 2/ However, not all homicides,

not all indictments for murder, not all

convictions for first degree murder, and

not even all convictions for first degree

murder involving another felony, will

result in the findings required to qualify

a defendant for consideration of

imposition of the death penalty. See

§§ 782.04, § 921.141 (5), (6), Fla. Stats.

8. Gross & Mauro, supra, at 49.

9. Pet. for Writ of Habeas Corpus at

57-58, 49 G(2) (a), (bd), (Cc), (a).

54.

(1985) [e.g., neither a first degree

murder which is merely a premeditated

killing nor a first degree murder

perpetrated in the course of felonies

Other than the ones listed make a person

eligible for the death penalty. }

Petitioner apparently assumes that

capital-eligible killings are egually

distributed between white victims and

black victims and equally distributed in

Cases involving murder indictments and

convictions. le assumes, for example,

that women indicted for first degree

murder have committed capital-elisible

Killings (including killings in the course

Of robberies, burglaries and rapes) at the

Same rate that men indicted for first

degree murder have committed such

Killings. As any student of this

country's criminai justice system knows,

in the words of the Fifth Circuit, "No

55.

conclusions of evidentiary value can be

predicated upon such unsupported

assumptions.” Smith v. Balkcom, supra,

671 F.2d at 860 fn. 33.

In implied recognition of this flaw

in his presentation, petitioner relies

heavily on Gross and Mauro's efforts to

determine whether non-racial factors might

explain the race-of-victim disparity.

Gross and Mauro conclude that they do not.

Their conclusions, however, like peti-

tioner's are based on unwarranted assump-

tions. Gross and Mauro, supra, at 66.

The Gross and Mauro study itself

undermines the assumption that capital-

eligible killings are equally distributed

between white and black victims.

Reworking the figures given in Gross and

Mauro's Tables 1 and 4 to determine

whether white persons are more likely than

black persons to be victims of killings

56.

involving the commission of a separate

felony, it reveals that they

Overwhelmingly are, 29/ Of all the

homicides in Florida involving either a

black or a white victim (3,486), 51.7%

(1,803/3,486) were white ana 48.3%

(1,683/3,486) were black. However of the

homicides reported by petitioner to also

involve the commission of a separate

felony (474), 73.0% (346/474) of the

Victims were white but Only 27.08%

(128/474) of the victims were black.

Although the perpetration of a killing in

10. Homicides involving the commission

of a separate felony co not necessarily

result in Capital-eligible convictions

Since, among other things, killings in the

commission of only a select few felonies

Could ever result in Capital-eligible

convictions. However, amici Curiae will

indulge in petitioner's assumption, for

this example only, that petitioner's

figures for the number of homicides

involving the commission of a separate

felony include at least some of the

killings which eventually result in

Capital-eligible convictions.

57.

the course of some felonies constitutes

the commission of a capital-eligible

offense, any assumption that

capital-eligible killings are equally

distributed between white victims and

black victims is likely to be as unfounded

as the assumption that killings involving

the commission of a separate felony are

equally distributed between white victims

and black victims.2+/ IZd., at 55, 57.

11. Although Gross and Mauro acknowledge

that there might be variables which were

omitted from their data which could

explain the racial disparities on

nonracial grounds, they then plead

unawareness of any such variable. One

critical sentencing variable which was

omitted from their consideration was the

type of felony involved in the homicide

convictions. As repeatedly stated herein,

it is the commission of only a few

felonies, such as robbery, burglary, rape,

etc., which can elevate a homicide to a

capital-eligible murder. At the time of

Gross and Mauro's study, a killing in the

course of a felony drug sale did not

necessarily constitute a capital-eligible

murder. Neither did a killing occurring

at the same time as another, but non-fatal

felony aggravated assasult. Given the

58.

LL

Another reason that petitioner's

reported disparities do not Support his

conclusion that Florida's Capital-

sentencing system is applied arbitrarily

is that petitioner presented material to

the District Court which conflicts with

that conclusion. Specifically, petitioner

presented the Gross and Mauro study which

found that the race of the Suspect did not

Significantly affect Capital-sentencing

decisions in Florida. Id. at 82.

The theory underlying petitioner's

Claim is that race discrimination "has

continued to inform the decision to impose

the death sentence for homicide in

Florida. . .." Pet. Brief on Mierits

differences in the rates in which blacks

and whites are victims of homicides

involving all types of separate felonies,

it is plausible to hypothesize that there

are substantial differences in the rates

in which the two groups are victims of

Capital~eligible murder. See id. at

99-102.

59.

at 48. He asserts that the reported race-

of-victim disparities in the imposition of

the death penalty in Florida reflect “the

continuing effects" of “official approval

of and tolerance for violence against

black people.” Id. at 72, 73.

If the State of Florida's prosecu-

tors, judges, and jurors are so racist

that they are deciding who lives and who

Gies on the basis of race, it is incon-

Ceivable that this racism would operate

Only when the race of the victim is being

considered and not operate when the race

of the accused is being considered. It is

even more incredible to speculate that

this purported victim-based racism would

still Operate when the accused and the

victim are both of the same race, as in

petitioner's case.

Thus, petitioner's factual allega-

tions clearly do not support his

60.

y “Se St, oe

conclusion that Florida's capital-

sentencing system is arbitrarily applied.

He was not entitled to a hearing on that

conclusion.

CONCLUSION

The instant case presents the

question whether the District Court erred

in determining that petitioner did not

Proffer sufficient evidence to entitle him

to a hearing on the discrimination issues.

We submit the District Court was correct:

petitioner's factual and legal arguments

in support of his claim are without merit.

The granting of a hearing on the basis of

this evidence will lead ineluctably into a

vast swamp of statistical data which

Can not be used to prove his contentions.

Petitioner's challenge is at heart a

Charge that the judicial system does not

work. As Justice White statec in Gregg,

"This cannot be accepted as a proposition

61.

of constitutional law." Gregg v. Georgia,

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

concurring).

For the reasons set forth above, the

order of the District Court should be

affirmed.

Respectfully submitted,

John K. Van de Kamp, Ira Reiner,

Atorney General District Attorney of

of the State of Los Angeles County

California

Michael D. Wellington George H. Palmer

Supervising Deputy Deputy District

Attorney General Attorney

Susan Lee Frierson

Deputy Attorney

General

Harry B. Sondheim

[Counsel of Record)

Head Deputy

District Attorney

Appellate Division

September 1986

62.