Petition for Writ of Certiorari — Sawyer v. Smith

89-5809 °

NO.

THE Surreme Court. U.S.

" roTren

SUPREME COURT OF THE UNITED STATES 989

October Term, 1989 | JOSEPH F. SPANIOL, JR.

RECEIVED

ROBERT SAWYER,

Petitioner,

v.

LARRY SMITH, Interim Warden,

Louisiana State Penitentiary,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CATHERINE HANCOCK

Counsel of Record

ELIZABETH W. COLE

7031 Freret Street

New Orleans, Louisiana 7O0II8

(504) 865-5949; 865-5153

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. Whether the decision of Caldwell v. Mississippi, which

condemns false and misleading prosecutorial arguments to a capital

sentencing jury concerning the jurors’ responsibility as the final

arbiters of death, should be applied retroactively:

a) on the grounds that at the time Caldwell was decided it did

not create a "new" rule under the standards of Teague v. Lane and

Penry v. Lynaugh,

b) or on the grounds that Caldwell rights belong in the category

of fundamental fairness rights that enjoy a special exemption from

the non-retroactivity rule of Teague v. Lane,

c) or on both of these grounds?

Il. Whether the petitioner should be granted a new sentencing

hearing on the grounds that his Eighth Amendment rights were

violated because the prosecutor made false and misleading

arguments to his capital sentencing jury concerning the jurors’

responsibility as the final arbiters of death?

LIST OF PARTIES

The parties to the proceeding below were the petitioner, Robert

Sawyer, and Robert H. Butler, Sr., Warden of the Louisiana State

Penitentiary. After the decision below was rendered on August 15,

1989, Warden Butler resigned his position, and Larry Smith was

appointed Interim Warden. Therefore, Interim Warden Smith is

named as the respondent in this petition for certiorari by Robert

Sawyer. ‘

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

ee Ce ES o's oon 6% 6 0:6 © 0 6 6 8 8 8 0 Ose ii

Es. i oo 6 bk bk Se 669 6 8 eA ill

I a ee \

CITATION TO OPINIONS BELOW.............. 1

JURISDICTIONAL STATEMENT .............-.-. 2

CONSTITUTIONAL AND STATUTORY

Ee ee ee 2

ee Oe kbar cee cree acoaces 3

REASONS FOR GRANTING THE WRIT............ 8

I. The Fifth Circuit's refusal to apply Caldwell v.

Mississippi retroactively is based on erroneous

interpretations of the standards for “new” law

claims and claims related to “fundamental

fairness” established in Penry v. Lynaugh and

Teague v. Lane. Unless reversed, the Fifth Circuit's

ruling will create broad non-retroactivity doctrine

that will bar death row defendants from receiving.

habeas corpus relief based on meritorious Eighth

PE ee a 8

A. This Court should review the Fifth Circuit's

definition of "new" Eighth Amendment rules

because it does not accord with the guidelines

for “new” rule analysis established in Penry v.

B. When Caldwell rights are violated, the

likelihood of an accurate death sentence is

seriously diminished under Teague v. Lane.

Therefore this Court should review the Fifth

Circuit's refusal to treat Caldwell v.

Mississippi as a decision involving a

“fundamental fairness” right entitled

to retroactive effect under Teague........... 15

C. Robert Sawyer's prosecutor violated

Caldwell v. Mississippi, and this Court should

review his Eighth Amendment claim on the

merits because the Fifth Circuit's standards for

such claims do not accord with those of the

i 2. 6 4 6s e ae hee 6.0 8 6a oD 18

Tee ee ead oom oer un a ie 22

DVM, «cco ncecsenctweecoe en 23

APPENDIX (BOUND SEPARATELY)

Sawyer v. Butler, No. 87-3274, slip op. at

5528 (Sth Cir. Aug. 15, 1989) (en banc)

oo. 2 sn 6 6 ewe 6 6 0 6 o

Letter from En Banc Court Requesting

Supplemental Briefs on Teague v.

i ee Ck te te te 8 A-41

Closing Arguments and Jury Instructions

in the Capital Sentencing Hearing ........

Sawyer v. Butler, 848 F.2d 582 (Sth Cir.

1988) (panel opinion, vacated in part

RUE cg ceases ect cee os

Sawyer v. Blackburn, No. 86-223 (E.D. La.

April 8, 1987) (District Court order,

memorandum opinion, and judgment)

Sawyer v. Blackburn, No. 86-223 (E.D. La.

Sept. 9, 1986) (Magistrate's Findings

and Recommendations adopted by

District Court with modifications) ........

La. Code Crim. Procedure, An. 9058 .........

La. Code Crim. Procedure, Ant. 905.9 .........

La. Supreme Court Rule 28... .. 2.1.2.2

Supreme Court Opinions in Death

Penalty Cases Since Witherspoon

EE Sahel 6

iv

. A-84

TABLE OF AUTHORITIES

Page

Cases

Apizona v. Roberson, 108 S. Ct. 2093 (1988) ........ 14

Butler v. Aiken, 864 F.2d 24 (4th Cir. 1988),

cert. granted sub nom. Butler v. McKellar.

I re ans 6 5 cc 6 e566 6 6 88 14

Buttrum +. Black, __._ F. Supp. ___ (N.D. Ga.

Sept. 28, 1989) 1989 WL 108092 ............ 14

Caldwell v. Mississippi, 472 U.S. 320(1985) ...... passim

Darden v. Wainwright, 477 U.S. 168 (1986) ......... 21

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ..... passim

Dugger v. Adams, 109 S. Ct. 1211 (1989)... ....... 18

Eddings v. Oklahoma, 455 U.S. 104 (1982) ...... 9, 11, 12

Eord v. Wainwright, 477 U.S. 399 (1986) .......... 13

Furman v. Georgia, 408 U.S. 238 (1972) ........... 13

Gardner v. Florida, 430 U.S. 349 (1977) ... 2... 2.2... 11

Gregg v. Georgia, 428 U.S. 153 (1976) ..... 2.2.2.2... 13

Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.

1989), vacated for rehearing en banc,

March 23, 1989, argued May 9,1989 ........ 14

Lockett v. Ohio, 438 U.S. 586 (1978) ......... 9,11, 12

McGautha v. California, 402 U.S. 183 (1971) ........ 11

Moore v. Zant, No. 84-8423 (11th Cir. Sept. 28,

1989) (en banc) 1989 WL 112653 .......... 14

Penry v. Lynaugh, 109 S. Ct. 2934 (1989) ....... passim

Sawyer v. Butler, No. 87-3274, slip. op. at 5528

(Sth Cir. Aug. 1S, 1989) (en banc), vacating

in part, Sawyer v. Butler, 848 F.2d 582

SD Sn ee passim

Sawyer v. Louisiana, 442 So.2d 1136 (La. 1983)

cert. denied, 466 U.S. 931 (1984) .........2... 5

Sawyer v. Maggio, 479 So.2d 360, rehearing

denied, 480 So.2d 313 (La. 1985) .........., 6

Solem v. Stumes, 465 U.S. 638 (1984) ............, 13

Vv

State v. Lindsey, 404 So.2d 466 (La. 1981). ...... . ae

State v. Sawyer, 422 So.2d 95 (La. 1982),

vacated and remanded, 463 U.S. 1223 (1983)... . . 5

Strickland v. Washington, 466 U.S. 668 (1984)... . ... 6

Teague v. Lane, 109 S. Ct. 1060 (1989)... ....... passim

Wheat v. Thigpen, 793 F.2d 621 (Sth Cir. 1986)... ... 19

Witherspoon v. Llinois, 391 U.S. 510 (1968)... ..... 16

Woodson v. North Carolina, 428 U.S. 280 (1976) . . . 9, 11, 12

Zant v. Stephens, 462 U.S. 862(1983)......... .TiAon

Constitutional and Statutory Provisions

+s ws 6 6 6 66\%. 6 60 6.6 0.8 0 6.0 6 2

Ss bse oe 8 6 oe we 6 ee ek 2

Se od 6 5 6b 6 66 6 6 0 5 6 0-6 0 6 8 8 2

La. Code Crim. Procedure, Art. 905.8 ............ 2,5

La. Code Crim. Procedure, Art.9059 ........... 2, 13

ee 2, 13

Other Authorities

Jonakait, The Ethical Prosecutor's Misconduct,

235 Com. L. Bull. S50 (1967) 2. 2. 2 2 ee ee 22

vi

IN THE SUPREME COURT CF THE UNITED STATES

October Term, 1989

ROBERT SAWYER, Petitioner,

v

LARRY SMITH, Interim Warden,

Louisiana State Penitentiary, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

The petitioner Robert Sawyer respectfully prays that a writ of

certioran issue to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit, entered in the

proceeding of Sawyer vy Butler on August 15. 1989

OPINIONS BELOW

The En Banc opinion of the Court of Appeals for the Fifth Circuit

has not been reported. it is reprinted im the Appendix to this

petition, which is bound separately The opimion of the pane! that

was vacated in part by the En Banc Cougl> reported at 848 F 2d S82

(Sth Cir. 1988), and is also reprinted im the Appendix

The memorandum opinion of the United States Distnct Court

for the Eastern District of Louisiana (Mentz, DJ.) has not been

reported. The District Court adopted, with modifications, the

Magistrate's Findings and Recommendations, which are not reported

Both the District Court opinion and the Magistrate's opinion are

reprinted in the Appendix

JURISDICTION

The judgment of the United States Court of Appeals for the

Fifth Circuit, after argument En Banc, was entered on August 15,

1989, affirming the District Court's denial of Robert Sawyer's petition

for relief from his conviction, and affirming the District Court's denial

of his petition to vacate his death sentence and remand for a new

capital sentencing hearing. The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Eighth Amendment, which provides in

relevant part:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

This case also involves the Fourteenth Amendment, which provides

in relevant part:

. . . [NJor shall any State deprive any person of life, liberty, or

property, without due process of the law; nor deny to any

person within its jurisdiction the equal protection of the laws.

This case also involves the following Louisiana statutes, which

are reprinted in the Appendix:

Louisiana Code of Criminal Procedure, Article 905.8

Louisiana Code of Criminal Procedure, Article 905.9

Louisiana Supreme Court Rule 28

STATEMENT OF THE CASE

Robert Sawyer was represented at his trial for first degree

murder by an attorney who was unqualified under Louisiana

Statutory law to defend death penalty cases, and who received

$1,000 for his work. (Habeas Transcript at 114-115, 143.) Robert

Sawyer's claims of incompetent representation concerning the work

of his counsel at the trial and sentencing hearing are described in the

panel opinion. See Sawyer v. Butler, 848 F.2d 582, 588-593 (Sth Cir.

1988). Before trial, Robert Sawyer was offered a plea bargain that

would have allowed him to plead guilty to murder and to receive a

mandatory life sentence, but he declined the plea. (Habeas Tr. at 15.)

His co-defendant, Charles Lane, was prosecuted for first degree

murder in a separate trial by the same prosecutor who later

prosecuted Robert Sawyer. Charles Lane was convicted, and he

received a life sentence from his capital sentencing jury. (Trial

Transcript at 985-986, A-48-49.)

At the guilt phase of Robert Sawyer's trial for first degree

murder, the prosecutor made a closing argument, and defense

counsel then stood silent, waving his closing. After the jury returned

a guilty verdict on the capital charge, the sentencing hearing was

convened, and the presentation of witnesses lasted a little over an

hour. (Trial Tr. at 980, A-43.) The prosecutor then gave his closing

argument, going first, ahead of defense counsel. The complete text of

the closing arguments at the sentencing hearing is reprinted in the

Appendix. The prosecutor's arguments included the following

Statements:

[Following a discussion about the statutory

death penalty factors that the prosecutor was

presenting to the jury for its consideration:]}

That will be a question of fact for the jury to decide.

The law provides that if you find one of these

as a jury, you yourself will not be sentencing Robert

Sawyer to the electric chair. What you are saying to

this Court, to the people of this Parish. to any appellate

court, the Supreme Court of this State. the Supreme

Court possibly of the United States. that you the

people as a fact finding body from all the facts and

3

evidence you have heard in relationship to this man's

conduct are of the opinion that there are aggravating

circumstances as defined by the statute, by the State

legislature thas this ia the txpe of ctima that deserves

that penalty. It is merely a recommendation ... . (Trial

Tr. at 982, A-45.) (emphasis added)

[Following an argument about how the de‘endant

is to blame for his own situation:]

There is really not a whole lot that can be said at this

point in time that hasn't already been said and done.

The decision is in your hands. You are the people that

Step and all you are saying to this court, to the people

of this Parish, to this man. to all the Judges that are

going to review this case after this day. is that you

the people do not agree and will not tolerate an

individual to commit such a heinous and atrocious

crime to degrade such a fellow human being without

the authority and the impact, the full authority and the

impact of the law of Louisiana. All you are saying is

that this man from his actions could be prosecuted

to the fullest extent of the law. No more and no less.

(Trial Tr. at 984, A-47.) (emphasis added)

[Following a discussion about how the evidence

relates to the statutory factors required for the death

penalty:}

. I think you will decide that there are at least

three or four aggravating circumstances which you could

reasonably impose in order to justify a death penalty

verdict. It's all your doing. Don't feei otherwise.

Don't feel like you are the one, because it is very casy

for defense lawyers to try and make each and every one

of you feel like you are pulling the switch. That is not so.

It is not so and if you are wrong in your decision

believe me, believe me there will be others who will be

behind you to either agree with you or fo say you are

wrong so I ask that you do have the courage of yqur

convictions . . . . (Trial Tr. at 985, A-48.) (emphasis added)

Following the prosecutor's closing argument, the defense

counsel responded with a one-page closing. (Trial Tr. at 985-986, A-

48-49.) The prosecutor then returned to make a second closing

argument, and stated in conclusion:

[Following an argument about how Robert

Sawyer should receive the death penalty even though

his co-defendant, who was tried separately, received

a life sentence:]

There is only one verdict that can be rendered in this

case and there will be a strong symbolism related to

that penalty. You the people are part of the criminal

justice system. You now know how it works. Now is

the time and [| ask you that you recommend because all

you are doing is making a recommendation. | ask that

you recommend to this Court and to any other Court

that reviews Robert Sawyer’s case that as a jury

based on all the facts and circumstances within your

knowledge you recommend the death penalty. (Trial Tr.

at 989-990, A-52-53.) (emphasis added)

The jury then received its instructions, and after deliberations

returned a sentence of death, on September 19, 1980. This death

sentence was binding on the trial court under Louisiana law. See La.

Code Crim. P., Art. 905.8.

Robert Sawyer was represented on appeal by different counsel,

and after his conviction and sentence were affirmed by the Louisiana

Supreme Court, present counsei entered the case and filed a petition

for certiorari. This Court summarily vacated the judgment of the

Louisiana Supreme Court, and remanded with instructions for that

court to reconsider its ruling in light of Zant v. Stephens, 462 U.S. 862

(1983). See State v. Sawyer, 422 So.2d 95 (La. 1982), vacated and

remanded, 463 U.S. 1223 (1983). On remand, the Louisiana Supreme

Court affirmed the conviction and sentence, and Robert Sawyer's

conviction became final on April 2, 1984. See Sawyer v. Louisiana,

442 So.2d 1136 (La. 1983), cert. denied, 466 U.S. 931 (1984). On

May 8, 1984, Robert Sawyer filed a state habeas corpus petition,

which included twenty claims. Among them was a claim that was

soon to be known as a “Caldwell” claim, namely that Robert Sawyer's

Eighth and Fourteenth Amendment rights were violateo because the

prosecutor's sentencing phase argumeni injected an arbitrary factor

into the jurors’ deliberations by explicitly misleading them

concerning their role as final judges in imposing the death sentence.

(State Habeas Petition, Claim V, at 12.) The state trial court denied

the petition on the same day it was filed, without opinion. On appeal,

the Louisiana Supreme Court remanded the case to the trial court for

an evidentiary hearing. The trial court denied the petition again at

the close of the hearing, without opinion. The Louisiana Supreme

Court affirmed the trial court's ruling, 4-3, without opinion. See

Sawyer v. Maggio, 479 So.2d 360, reconsideration denied, 480 So.2d

313 (La. 1985).

Having exhausted his state remedies, Robert Sawyer filed a

federal habeas corpus petition, with eighteen claims, on January 20,

1986. The district court judge assigned the petition to a magistrate,

who rejected all the claims in an unpublished opinion of “Findings

and Recommendations.” (A-91-140.) In federal court, Robert

Sawyer's Eighth Amendment claim concerning false and misleading

prosecutorial argument about the jury's role as a final arbiter of

death was labelled a “Caldwell” claim. See Caldwell v. Mississippi.

472 U.S. 320 (1985) (decided on June 11, 1985). While the

magistrate found that the prosecutor's arguments “dangerously

approach[ed] reversible error,” he also found that the “standard to be

employed in determining whether prejudice resulted" from the

arguments “is the ‘reasonable probability’ test for determining

prejudice established by Strickland v. Washington [466 U.S. 668

(1984)],” which was not satisfied. (Magistrate's Findings at 33, 36, A-

123, 126.) Judge Mentz affirmed the magistrate's findings and

recommendations in an unpublished order, and granted Robert

Sawyer's request for a certificate of probable cause to appeal. See

Sawyer v. Butler, 848 F.2d at 586-587.

A divided panel of the United States Court of Appeals for the

Fifth Circuit affirmed the district court's decision denying relief.

Sawyer v. Butler, 848 F.2d 582 (Sth Cir. 1988). The panel rejected

Robert Sawyer's claims of ineffective assistance of counsel and denial

of due process and equal protection from his representation by a

trial attorney unqualified to represent capital defendants under state

law. The panel divided over the resolution of the Caldwell claim,

with the majority rejecting the claim on the grounds, among others,

that Caldwell's “no effect” test should not be applied. See Sawyer.

848 F.2d at 599 n.15. Judge King dissented, and would have vacated

the sentence and granted a new sentencing hearing because she

found the Caldwell claim was valid. Sawyer, id. at 599-606. The

6

Court of Appeals granted rehearing En Banc on August 25, 1988, to

consider the question whether Caldwell was violated in Robert

Sawyer's case. Sawyer, 848 F.2d at 606.

After oral argument in the case, the En Banc Court requested

supplemental briefs from counsel on March 30, 1989, concerning

three questions arising from this Court's decision in Teague v. Lane,

109 S. Ct. 1060 (1989). (See Letter in Appendix at A-41-42.) One of

these questions, "Does Teague apply to collateral attacks upon a

sentencing proceeding in a capital case?", was answered in the

affirmative by this Court, one month after supplemental briefs were

submitted to the En Banc Court. See Penry v. Lynaugh, 109 S. Ct.

2934, 2944 (1989). The other two issues remain questions of first

impression in this Court's jurisprudence: “Does Caldwell articulate a

rule that is new within the meaning of the Teague test?" and “Does

Caldwell announce a rule that falls within the fundamental fairness

exception to the Teague rule?”

The En Banc Court issued its opinion on August 15, 1989, and

divided sharply over these two Teague issues. Judge Higginbotham

wrote for a majority of nine judges who found that Caldwell is “new”

law and does not fall within Teague's fundamental fairness exception

to its rule of non-retroactivity, so that Robert Sawyci's Caldwell

claim is barred by Teague. Sawyer v. Butler, No. 87-3274, slip op. at

$528 (Sth Cir. Aug. 15, 1989) (A-1-27). Judge King authored a

dissent for five judges who would have found that Caldwell should

be applied retroactively to Robert Sawyer's case, both on the grounds

that it was not “new” law at the time it was decided, and on the

grounds that Caldwell falls within Teague's fundamental fairness

exception. Sawyer, slip op. at 5554-5567 (A-27-40). Judge King

noted that if Robert Sawyer's case had been decided “on the basis of

the Supreme Court decisions in existence when Sawyer's case was

argued and submitted . . . the majority opinion would have granted

him a new sentencing hearing.” Id. at 5567 (A-40). Judge Rubin

expressed his concurrence with the views of the dissent, but did not

vote. Sawyer, slip op. at 5530 n.I (A-3).

7

REASONS FOR GRANTING THE WRIT

I. THE FIFTH CIRCUITS REFUSAL TO APPLY CALDWELL v.

MISSISSIPP] RETROACTIVELY IS BASED ON ERRONEOUS

INTERPRETATIONS OF THE STANDARDS FOR "NEW" LAW CLAIMS

AND CLAIMS RELATED TO "FUNDAMENTAL FAIRNESS"

ESTABLISHED IN PENRY v. LYNAUGH AND TEAGUE v. LANE.

UNLESS REVERSED, THE FIFTH CIRCUITS RULING WILL CREATE

BROAD NON-RETROACTIVITY DOCTRINE THAT WILL BAR DEATH

ROW DEFENDANTS FROM RECEIVING HABEAS CORPUS RELIEF

BASED ON MERITORIOUS EIGHTH AMENDMENT CLAIMS.

In Robert Sawyer's case, a sharply divided Fifth Circuit En Banc

Court disagreed over the meaning of this Court's definition of “new”

death penalty decisions that are not retroactive under Penry v.

Lynaugh, 109 S. Ct. 2934 (1989). The majority held that the

Supreme Court made “new” law when it condemned a prosecutor's

false and misleading argument about the non-finality of a jury's

death verdict in Caldwell v. Mississippi, 472 U.S. 320 (1985). The

Fifth Circuit's decision should be reviewed by this Court because the

majority expressed the need for guidance on this question, and

because Sawyer creates a blueprint for “new” rules that conflicts in

several respects with the retroactivity standards established by this

Court in Penry and in Teague v. Lane, 109 S. Ct. 1060 (1989).

The Fifth Circuit also divided sharply over the question

whether Caldwell deserves retroactive application because it

qualifies under Teague as a case involving “bedrock procedural

elements" of “fundamental fairness." The majority's refusal to treat

Caidwell rights as “bedrock” elements of procedural fairness in death

penalty cases should be reviewed because no Supreme Court decision

has addressed the question .avolved here: When does an Eighth

Amendment sentencing right involve a procedure “without which the

likelihood of an accurate” death sentence “is seriously diminished”

under Teague? The Fifth Circuit majority expressed a need for

guidance on this question, and all federal courts are in immediate

need of guidance, because almost all Eighth Amendment rights

established since 1972 need to be assigned a retroactivity status as

soon as possible. Of all the cases that may raise this question,

Sawyer deserves this Court's review because the Fifth Circuit |

majority construes Teague so narrowly as to make it unlikely that

any Eighth Amendment rights will be held to be “bedrock” rights.

Finally, this Court should review Robert Sawyer's case because

the Fifth Circuit's interpretation of Caldwell is based on the

misapprehension that it does not derive from the Eighth Amendment

cases of Woodson v. North Carolina, 428 U.S. 280 (1976), Lockett v.

Qhio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104

(1982), as expressly stated in the Caldwell opinion. This

misapprehension explains the Fifth Circuit's failure accurately to

apply the “new” law analysis of Penry, as well as its failure to

recognize the “bedrock” nature of Caldwell rights. While Caldwell

violations are rare, they must be treated as cause for new sentencing

hearings because they pose a unique threat to the reliability and

public legitimacy of death verdicts. This Court is committed to the

view that no prosecutor can tell a jury that it can impose a death

sentence because an appellate court will “correct any ‘mistake’ the

jury might make in a choice of sentence.” Caldwell, 472 U.S. at 343,

348 (Rehnquist, J., dissenting). The Fifth Circuit's failure to

appreciate the origin and scope of Caldwell rights justifies this Court's

review of the majority's standards governing the assessment of

Caldwell claims on the merits.

A. THIS COURT SHOULD REVIEW THE FIFTH CIRCUITS

DEFINITION OF "NEW" EIGHTH AMENDMENT RULES

BECAUSE IT DOES NOT ACCORD WITH THE GUIDELINES FOR

"NEW" RULE ANALYSIS ESTABLISHED IN PENRY v. LYNAUGH

AND TEAGUE v. LANE.

The Fifth Circuit majority's opinion reveals three missteps that

produce its flawed interpretation of “new” law analysis under Penry

and Teague, which leads it to find Caldwell to be non-retroactive. Its

first error is to elevate the earlier Teague plurality opinion over the

later Penry majority opinion as the most relevant guide to

retroactivity doctrine, despite the fact that both cases say that "new"

law is created when the Court imposes new obligations on the states,

breaks new ground, or reaches decisions not dictated by precedents.

Sawyer, slip op. at 5545 (A-18). The Fifth Circuit majority finds that

Penry “left the definition of a ‘new rule’ in some doubt,” and that the

“opinions in Teague and Penry do not immediately yield a clearly

articulable definition of a ‘new rule.” Sawyer, id. The majority's

uncertainty finds its source in Justice Scalia’s dissent in Penry, which

proves “significant” for determining that Penry's application of

“Teague's ‘new rule’ formula may well have turned upon facts”

unique to Penry's claims. Sawyer,id. Thus, even though Penry

provides the more detailed blueprint for “new” law analysis, the Fifth

Circuit determines that it constitutes merely a “special case, one

simply reapplying” an earlier case “to a unique development in state

law.” Sawyer, slip op. at 5548 (A-21). Thus, Penry provides no

guidance for resolving the question of Caldwell's retroactivity.

Supreme Court review is needed when a circuit court rejects

the applicability of a Supreme Court majority opinion because a

dissent suggests that it is inconsistent with an earlier plurality

opinion. As the Sawyer majority puts it, once a circuit court

perceives such a conflict between Teague and Penry, whether

justifiably or not, “only Teague's authors can tell us if they meant

what they said or if they have changed their minds.” Sawyer, slip op.

at 5554 (A-27). Five members of the Fifth Circuit perceive the

majority's decision to minimize the significance of Penry differently:

[T]he majority's dispute is not, in reality, with our

interpretation of Teague, but with Penry's elaboration

of the ‘new rule’ standard .. . . [T]he majority ignores

the fact that Teague's authors have already spoken in

Penry and have effectively rejected any definition of

a ‘new rule’ that would sweep broadly enough to

encompass Caldwell. (emphasis in original)

Sawyer, slip op. at 5559-5560 (A-32-33) (King, J., dissenting).

Supreme Court resolution of this dispute between the two sides of

the Fifth Circuit is important, because the retroactivity of almost all

Eighth Amendment rights in this Circuit now depends upon it.

10

The Fifth Circuit majority's decision to treat Penry as a case

that provides no general guidance about retroactivity leads it to

make a second misstep. It fails to note that Penry directs lower

courts to examine if and how “well-established principles” in

Supreme Court cases evolve towards the ultimate development of the

rule in question, here the Caldwell ban on false and misleading

prosecutorial argument about jury responsibility for death verdicts.

See Penry, 109 S. Ct. at 2944, 2944-2947. According to the text of

the Caldwell opinion itself, this Court applied specific principles from

earlier cases to the problem of the unique kind of prosecutorial

argument that seeks to minimize a jury's awesome responsibility for

death. Those “root” cases include Eddings v. Oklahoma, 455 U.S. 104

(1982), Lockett v. Ohio, 438 U.S. 586 (1978), Gardner v. Elorida, 430

U.S. 349 (1977), Woodson v. North Carolina, 428 U.S. 280 (1976), and

McGautha v. California, 402 U.S. 183 (1971). Compare Sawyer, slip

op. at 5549-5550 (A-22-23) (mischaracterizing petitioner's

arguments that Caldwell is old law by omitting mention of his

argument that Caldwell's rule is derived from earlier cases) with

Petitioner's Original Circuit Brief at 36, Petitioner's Original Circuit

Reply Brief at 12, Petitioner's Supplemental Circuit Brief at 15-19,

Petitioner's Supplemental Circuit Reply Brief at 3-7. For citations to

earlier “root” cases in Caldwell, see 472 U.S. at 323, 329, 329 n.2, 330,

333, 340, and see id.. at 341, 343 (O'Connor, J., concurring).

If the Fifth Circuit majority had looked to the Penry opinion, it

would have discovered a strong resemblance between the evolution

of specific principles that culminated in the Penry rule, and that

which culminated in Caldwell. The Woodson principle that reliable

death verdicts require consideration of individualized mitigating

circumstances led to Lockett's principle that a jury may not be

barred from considering such circumstances by statute, and on to

Eddings’ principle that such a bar may not be erected through the

decision or instruction of a trial judge. See Penry, 109 S. Ct. at 2946.

Under Eddings, if no judge could tell the jury that mitigating

circumstances could be ignored, then surely no prosecutor could do

so either. Under Penry no "new" law is created when the Woodson-

Lockett-Eddings principles are applied to hold that the affirmative

obligation to remove bars to mitigating circumstances encompasses

the obligation to create methods such as jury instructions to permit

juries to “give effect” to such evidence. See Penry, 109 S. Ct. at 2945-

2947. Under Caldwell, no “new” law was made when prosecutors

were condemned for making false and misleading arguments about

the non-finality of a jury's death verdict because those arguments

create the danger that the jury will not exercise its duty to give full

consideration to mitigating circumstances in making individualized

decisions about death. See Caldwell, 472 U.S. at 330-333. Cf. Sawyer.

slip op. at 5557-5559 (A-30-32) (where dissent describes Caldwell's

roots in these Woodson-Lockett-Eddings principles, as well as in

other supporting principles).

By ignoring Penry's model for measuring whether “well-

established constitutional principle[s]" are being applied “to govern a

case which is closely analogous to those which have been previously

considered,” the Fifth Circuit majority is able to overlook all Eighth

Amendment cases between 1974 and 1985 that supply the roots of

Caldwell. Penry, 109 S. Ct. at 2944. Instead, the court reaches back

to a 1974 case establishing a modest level of federal court scrutiny of

ordinary prosecutorial misconduct in state criminal cases. See

Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Donnelly then

supplies the majority's only case law authority for finding Caldwell to

be a “new” rule. But the majority poses the wrong question when it

asks, “whether the changes [from Donnelly to Caldwell) suffice to

make Caldwell a new rule... ?" Sawyer, slip op. at 5549 (A-22). See

also id. at 5537 (A-10) (stating the wrong proposition that “[w]hether

Caldwell is a new rule" depends “upon the relation between Caldwell

and Donnelly"). According to Penry, the proper question is whether

Caldwell's rule evolved from principles established in closely

analogous Eighth Amendment decisions rendered during the last two

decades. If the Fifth Circuit majority's "new" law reasoning is

adopted, then any Eighth Amendment ruling like Caldwell can be

12

found to be "new" law through the simple expedient of finding a non-

Eighth-Amendment case from an earlier era, and noticing how new a

given Eighth Amendment case is by comparison to that earlier case.

Neither Teague nor Penry support such an approach to “new” law

analysis.

Finally, the third misstep of the Fifth Circuit majority occurs

when it reads Teague as requiring the adoption of a radically new

element in "new" law analysis. First, the majority reads Teague as

rejecting the idea that a uniform body of state court practices and

constitutional holdings should be considered when deciding whether

a Supreme Court rule that ratifies these holdings is “old” law. See

Sawyer, slip op. at 5548-5549 (A-21-22) (finding that Teague's

citation, without comment, of Ford v. Wainwright, 477 U.S. 399

(1986), demonstrates that state court anticipation of Caldwell's rule

is irrelevant). This proposition is not explicitly established in Teague,

and it contradicts the well-established relevance of state court

practice to “new” law analysis. Rules that break new ground include

not only those that overrule earlier cases, but also those that do not

ratify a strong state consensus supporting a particular interpretation

of well-established principles. See, ¢.g., Solem v. Stumes, 465 U.S.

638, 647-64 (1984). In the case of Caldwell's rule, both the “fair

triai” state court decisions between 1877 and the present, and the

Eighth Amendment state court decisions in the post-Eurman era,

provide overwhelming evidence that state courts endorsed a ban on

false and misleading prosecutorial argument about the non-finality

of a sentencing jury's role. Furman v. Georgia, 408 U.S. 238 (1972).

See cases cited in Petitioner's Supplemental Circuit Brief at 10-12;

see cases cited in Caldwell, 472 U.S. at 334 n.4-5. Compare Sawyer,

slip op. at 5549 (A-22) (asserting that all post-Furman state cases

adopting Caldwell rules in the pre-Caldwell era are based solely on

“state law” that could not create “federal jurisdiction") with id., slip

op. at 5560-5562 (A-33-35) (where dissent notes that such cases are

based on state court readings of their obligations under Gregg v.

Georgia, 428 U.S. 153 (1976)). See also La. Code Crim. P., Art. 905.9

and La. Supreme Court Rule 28.

13

ON AA NL

As Penry and Teague make clear, the chief concerns of

retroactivity doctrine are making sure that states are not unfairly

burdened with obligations they cannot reasonably anticipate, and

creating an incentive for state courts “to conduct their proceedings in

a manner consistent with established constitutional principles.”

Teague, 109 S. Ct. at 1073. See Penry, 109 S. Ct. at 2947-2949

(describing how states may be asked to fulfill general Eighth

Amendment obligations imposed upon them in specific terms that

are supported by well-established principles). The Fifth Circuit

concludes that "a rule is new for purposes of Teague if it has not

been accepted at the time the petitioner's conviction became final.”

Sawyer, slip op. at 5550 (A-23). This ruling creates such a broad

definition of "new" law that it fails to provide incentives for state

courts to read this Court's Eighth Amendment opinions with attention

to the principles they contain.

Given the Fifth Circuit majority's admitted uncertainty about

the validity of its interpretation of Teague and Penry, this Court

should review Robert Sawyer's case in order to clarify the “new” law

standards for this circuit and for others. Disagreements about the

meaning of these standards are arising already in other circuits. See

Moore v. Zant, No. 84-8423 (llth Cir. Sept. 28, 1989) (en banc) 1989

WL 112653. ‘Death row defendants in other circuits continue to

enjoy the benefits of receiving resolutions of Caldwell claims on the

merits, while Robert Sawyer has been barred from relief. See

Buttrum v. Black, ___ F. Supp. ___ (N.D. Ga. Sept. 28, 1989) 1989 WL

108092 (granting Caldwell relief). See also Hopkinson v. Shillinger,

866 F.2d 1185 (10th Cir. 1989), vacated for rehearing en banc, March

23, 1989, argued May 9, 1989 (considering question whether

Caldwell should be given retroactive effect under Teague and Penry).

This Court's pending decision in Butler v. McKellar should provide

some guidance on the concepts of “new” and “old” law. See Butler v.

Aiken, 864 F.2d 24 (4th Cir. 1988), cert. granted, sub nom. Butler v.

McKellar 109 S. Ct. 1952 (1989) (certiorari granted to determine

whether Arizona v. Roberson, 108 S. Ct. 2093 (1988) is “new” law).

14

But the Fifth Circuit majority's decision in Sawyer still deserves this

Court's review because its exclusion of Caldwell rights from the

category of “bedrock” procedural elements under Teague is a ruling

that should receive reconsideration in its own right.

B. WHEN CALDWELL RIGHTS ARE VIOLATED, THE

LIKELIHOOD OF AN ACCURATE DEATH SENTENCE IS

SERIOUSLY DIMINISHED UNDER TEAGVE v. LANE. THEREFORE

THIS COURT SHOULD REVIEW THE FIFTH CIRCUITS

REFUSAL TO TREAT CALDWELL v. MISSISSIPPI AS A

DECISION INVOLVING A "FUNDAMENTAL FAIRNESS"

RIGHT ENTITLED TO RETROACTIVE EFFECT UNDER TEAGUE.

In Sawyer the Fifth Circuit majority attempts to create a

standard to answer the question that was not answered in either

Penry or Teague: When does an Eighth Amendment sentencing right

qualify under the "fundamental fairness" exception to Teague's non-

retroactivity rule, because it involves a procedure “without which the

likelihood of an accurate” verdict “is seriously diminished"? See

Teague, 109 S. Ct. at 1077. The majority decides to treat as

“fundamental” only those rights that:

either so distort the judicial process as to leave one

with the impression that there has been no judicial

determination at all, or else skew the actual evidence

crucial to the trier of fact's disposition of the case.

Here the jury did have an opportunity, even if

procedurally flawed, to contemplate and review

the relevant evidence. Sawyer's Caldwell claim

has neither the overwhelming influence upon accuracy

nor the intimate connection with factual innocence

demanded by the second Teague proviso.

Sawyer, slip op. at 5553 (A-26).

There are two reasons that this definition of retroactive

“fundamental fairness" rights under Teague deserves review by this

Court. First, the Fifth Circuit majority indicates that it is uncertain

about the propriety of this definition, and that it welcomes this

Court's guidance. While the majority finds that “pending further

direction from the Supreme Court . . . we must follow the course set

by the [Teague] plurality as best we can,” it also notes that “it is not

clear how Caldwell, with its condemnation of a particular type of jury

15

argument, fits into the Teague scheme.” Sawyer, slip op. at 5550,

5551 (A-23-24). Additionally the majority notes the difficulties in

translating Teague's exception, which is couched in the language of

rules that diminish the “likelihood of an accurate conviction,” into the

death verdict context. “Our task is made difficult by the newness of

the amalgam [of applying Teague to death verdicts] as well as its

uncertain precedential footing.” Sawyer, slip op. at 5551 (A-24).

Nonetheless, the majority concludes that a fair translation can be

accomplished by requiring habeas petitioners to show that the

relevant procedure is one “without which the correctness of the

jury's decision to punish by death rather than by life imprisonment

is seriously diminished.” Id.

t is vital for this Court to address the meaning of Teague's

concept of “fundamental fairness” in the death sentencing context,

because almost all Eighth Amendment rights established since 1972

need to be assigned a retroactivity status under Teague as soon as

possible. See List of Death Penalty Cases Since Witherspoon v.

Llinois, 391 U.S. 510 (1968) (A-144). Assuming that the Sawyer

majority has performed a reasonable translation of Teague's

conviction-based definition into the death penalty context, it remains

important for this Court to review the Fifth Circuit's translation of

Teague, out of all the cases that will raise the "fundamental fairness”

question in the coming months. This is because the Fifth Circuit

majority created a further translation of Teague to require an Eighth

Amendment procedural right to have an “overwhelming influence”

upon the accuracy of a death verdict, instead of the more moderate

Teague requirement that accuracy be "seriously diminished" by the

violation of the right. Sawyer, slip op. at 5553 (A-26).

While appropriate definitions of “fundamental fairness" rights

may exist on a spectrum, the Fifth Circuit's definition is certainly at

one end of that spectrum. This makes it difficult for any court using

that definition to remain flexible, and to make case-by-case

determinations of the qualities of particular Eighth Amendment

16

rights. In addition, the Fifth Circuit's definition retains a focus on

“factual innocence” that has no evident bearing upon Eighth

Amendment sentencing hearing rights like Caldwell. It also appears

to suggest that some defendants’ Caldwell claims may qualify for

retroactive application while claims of other defendants do not. This

result clearly contradicts Teague's description of “fundamental

fairness” analysis. See Sawyer, slip op. at 5565 (A-38) (dissent

noting that “[ujnder Teague, we must address the nature of Caldwell

error, not the specific facts of Sawyer's case"). Unless this Court

reviews the Fifth Circuit's special version of Teague's non-

retroactivity exception, very few Eighth Amendment rights, if any,

can be expected to receive retroactive treatment in future Fifth

Circuit cases.

The second reason that this Court should review the Fifth

Circuit's Teague interpretation is that it is not only extreme, it is

wrong, as applied to Caldwell. Both the text of the Caldwell opinion,

and that of the Teague opinion as well, reveal that Caldwell fits

comfortably within the parameters of rights the: “seriously diminish”

the accuracy of death verdicts. The Caldwell Court repeatedly

emphasized the dangers of unreliability posed by uncorrected

arguments that suggest in false and misleading ways that the jury is

not the ultimate arbiter of death. See Caldwell, 472 U.S. at 329-333,

340-341; see id. at 341, 342, 343 (O'Connor, J., concurring). The

Teague plurality notes that “bedrock” procedural elements deserving

retroactive application will usually include elements that have

already “emerged,” and Caldwell's fundamental nature emerged and

was recognized in many states between 1877 and 1985. See Teague,

109 S. Ct. at 1077; see Petitioner's Supplemental Circuit Brief at 6-29.

Moreover, if the Teague plurality regards a rule as “bedrock” that

prohibits the prosecutor from knowingly making use of perjured

testimony, then it should regard Caldwell's ban on knowingly making

use of false and misleading arguments about the non-finality of a

jury's death verdict as “bedrock” as well. See Teague, 109 S. Ct. at

1077.

17

Instead of relying on the Caldwell and Teague opinions, the

Fifth Circuit majority relies for its Teague interpretation almost

exclusively on Dugger v. Adams. See Sawyer, slip op. at 5552-5553

(A-25-26), citing Adams, 109 S. Ct. 1211 (1989). Yet the Adams

Court simply refused to create a per se exception for Caldwell claims

to the rule that procedural default will bar habeas relief, and insisted

instead that the “fundamental miscarriage of justice” exception to

procedural defaults should be applied on a case-by-case basis. See

Adams, 109 S. Ct. at 1217-1218 n.6. Procedural default doctrines

cannot be used to provide the substance for answers to retroactivity

questions because the two fields are animated by different concerns.

Procedural default doctrines must be written so as to create strong

incentives for counsel to raise objections to all errors in state court.

Retroactivity doctrines focus instead upon the expectations of the

state courts themselves concerning the constitutional standards that

will be applied to them. Where state courts can reasonably

anticipate that well-established principles will be used to create “old”

law like Caldwell, or that “bedrock” rights like Caldwell will be

endorsed by the Supreme Court, then state courts can live with the

prospect of retroactive application of Caldwell rights.

The Fifth Circui:'s interpretation of Teague, both regarding its

“new” law analysis and its “fundamental fairness” exception, is

distorted because of the majority's assumption that Caldwell derives

from Donnelly rather than from its Eighth Amendment predecessors.

The majority's interpretation of Caldwell deserves this Court's review

not only because of the problems it creates for retroactivity doctrine,

but also because it misconstrues the scope and meaning of this

Court's holding in Caldwell itself.

C. ROBERT SAWYER'S PROSECUTOR VIOLATED CALDWELL v.

MISSISSIPPI, AND THIS COURT SHOULD REVIEW THIS

EIGHTH AMENDMENT CLAIM ON THE MERITS BECAUSE THE

FIFTH CIRCUITS STANDARDS FOR SUCH CLAIMS DO NOT

ACCORD WITH THOSE OF THE CALDWELL DECISION.

It is rare for a prosecutor to commit Caldwell error, and rare

for a defendant to be able to satisfy this Court's burden of proof for

such an error. In order to receive a new sentencing hearing, a

defendant must show that the prosecutor's statements: a) were

focused on the subject of the non-finality of the jury's decision; b)

were false and misleading; c) were focused, unambigucus and strong;

and ¢) were uncorrected by the trial judge. See Caldwell, 472 U.S. at

320, 34C & n.7; see id. at 341, 342, 343 (O'Connor, J., concurring).

Thus it is not surprising that in over a dozen Caldwell cases decided

by the Fifth Circuit since 1985, only one defendant was granted a

new sentencing hearing on the basis of a Caldwell violation. See

Wheat v. Thigpen, 793 F.2d 621 (Sth Cir. 1986). The five Fifth Circuit

dissenters in Sawyer concluded that the prosecutor's violation of

Caldwell in this case is clear. Sawyer, slip op. at 5555-5556 (A-28-

29). The dissenters also note that if Robert Sawyer's case had been

decided without regard to this Court's recent retroactivity cases, “the

majority opinion would have granted him a new sentencing hearing.”

Id. at 5567 (A-40). The justifications for such conclusions are

apparent from the record of the prosecutor's argument.

In four separate episodes in closing argument, the prosecutor

informed the jurors that their job was merely to make a

“recommendation,” or to take an “initial step" that many courts would

review, and that the jurors should not “feel like you are the one”

making the death penalty decision. See Trial Tr. at 982-989 (A-45-

52); Sawyer, slip op. at 5531-5532 & 5532 n.3 (A-4-5); id. at 5555-

5556 (A-28-29) (King, J., dissenting). This prosecutor's argument

was even worse than the one in Caldwell, where the prosecutor

focused on “reviewability” alone. See Caldwell, 472 U.S. at 325-326.

Here the prosecutor focused on the power of appellate courts both to

review and to correct the jurors’ death verdict, telling them:

That is not so [that you are pulling the switch).

It is not so amd if you are wrong in your decision

believe me, believe me there will be others who

will be behind you to either agree with you or

to say you are wrong... .

(Trial Tr. at 985, A-48.) These remarks were preceded by earlier

19

episodes of argument that made it clear just who the “others” were

who would correct the jury's death verdict, namely the appellate

courts. As Judge King noted in her dissent from the panel opinion:

[T]he prosecutor here made several unambiguous

allusions to the inevitability of appellate scrutiny,

naming the potential reviewers as he did so... .

. . . « The prosecutor clearly sought to leave the

jury with the notion that their recommendation of

death would be merely “the initial step" and that

the “others who will be behind” them would be

there to correct any error in that determination.

Sawyer, 848 F.2d at 599, 605. Cf. Caldwell at 472 U.S. at 343, 348

(Rehnquist, J., dissenting) (if the prosecutor argues to a jury that “the

appellate court would correct any ‘mistake’ the jury might make in

choice of sentence” and if the trial judge does not correct such an

argument, "I might well agree [that this does not comport with] some

constitutional norm related to procedural fairness”).

After opplying Caldwell retroactively to Robert Sawyer's case,

this Court should find that an Eighth Amendment violation was

committed by Robert Sawyer's prosecutor. In doing so, this Court

should not rely on the Fifth Circuit majority's standards for Caldwell

violations, but on its own rules expressed in the Caldwell opinion.

For while some portions of the Fifth Circuit majority's opinion adhere

to this Court's standards, other portions do not. Two examples are

illustrative. First, the Caldwell] Court made clear that a trial court's

“correction” could not be found to have occurred fortuitously through

the utterance of some boilerplate references to the jury's role,

appearing in part of the jury instructions that are unconnected to the

prosecutor's improper arguments about non-iinality. See Caldwell.

472 U.S. at 340 n.7 (describing how general statements by the trial

judge or prosecutor about juror responsibility cannot be treated as

adequate “correction” because they do not retract or even undermine

the erroneous assertions that the jury's verdict “would be reviewed

by the appellate court to determine its correctness"). As Justice

O'Connor put it, correcting statements must “correct the impression

that the appellate court would be free to reverse the death sentence

20

if it disagreed with the jury's conclusion that death was appropriate.”

Caldwell, 472 U.S. at 341, 343 (O'Connor, J., concurring). Compare

Sawyer, slip op. at 5544 (A-17), (noting erroneously that boilerplate

instructions about the "judge [being] the sole source of the law" or

the “lawyers’ arguments [not being] evidence” are relevant to

determining Caldwell error) with Caldwell, 472 U.S. at 343, 344, 345,

346, 349 (Rehnquist, J., dissenting) (revealing that the Caldwell Court

ignored a variety of general statements about responsibility made by

the judge, prosecutor, and defense counsel, including statements that

the jurors were the sole judges of the facts, and the lawyers’

arguments were not evidence).

A second example of the Fifth Circuit majority's use of a

standard that is inconsistent with Caldwell is its statement that

Caldwell views prosecutorial argument as a basis for reversal “if,

when viewed within the context of the whole, it had an effect upon

the jury's perception of its role in the sentencing proceeding.”

Sawyer, slip op. at 5553 (A-26). This standard is similar to the

Caldwell dissent's approach, which argued that bad prosecutorial

argument could be regarded as harmless in light of a reading of the

transcript of the entire trial. See Caldwell, 472 U.S. at 343, 343-352

(Rehnquist, J., dissenting). While this standard is the appropriate one

for assessing ordinary prosecutorial misconduct, this Court expressly

rejected this approach in Caldwell. See also Darden v. Wainwright,

477 U.S. 168, 183-184 n.15 (1986) (reaffirming that Caldwell

standards are different from Donnelly-Darden standards because

Caldwell addresses the unique harm that occurs when a jury is

misled “into thinking that it [has] a reduced role in the sentencing

process").

Thus, if this Court should decide to review Robert Sawyer's

case, it should review not only the question whether Caldwell is

retroactive, but also review the question whether there was a

Caldwell violation on the merits. If this Court decides to give

retroactive effect to Caldwell, it should also find, as the Fifth Circuit

21

dissenters did, that Robert Sawyer's Eighth Amendment rights were

violated by the prosecutor's argument here. While Caldwell error is

rare, a prosecutor occasionally will be tempted deliberately to

commit errors such as Caldwell violations, even in a case he or she

expects to win. See Jonakait, The Ethical Prosecutor's Misconduct, 23

Crim. L. Bull. 550 (1987). See also State v. Lindsey, 404 So.2d 466,

481-488 (La. 1981) (where Robert Sawyer's prosecutor was

condemned for remarks that were held to be reversible misconduct).

Caldwell violations must be condemned when they occur, because

they pose a unique threat to the reliability and public legitimacy of

death penalty verdicts. Robert Sawyer should be given a new

sentencing hearing so that the decision whether he should die will be

put to a jury that is not misled about its responsibilities.

CONCLUSION

For the foregoing reasons, this petition for certiorari should be

granted.

Respectfully submitted,

CATHERINE HANCOCK

Counsel of Record

ELIZABETH W. COLE

7031 Freret Street

New Orleans, Louisiana 70118

(504) 865-5949; 865-5153

November 13, 1989

22

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

ROBERT SAWYER, Petitioner,

v.

LARRY SMITH, Interim Warden,

Louisiana State Penitentiary, Respondent.

CERTIFICATE OF SERVICE

I, Catherine Hancock, a member of the Bar of this Court, hereby

certify that on this 13th day of November, 1989, a copy of the

corrected Petition for a Writ of Certiorari in the above-entitled case

(the original Petition having been filed and docketed on October 16,

1989) was mailed, first-class postage prepaid, to William J. Guste,

Attorney General of Louisiana, State Capitol Station, P.O. Box 44005,

Baton Rouge, Louisiana 70804, and to Ms. Dorothy Pendergast, Office

of the District Attorney, 24th Judicial District Court, New Courthouse

Building, Gretna, Louisiana 70054, counsel for the respondent herein.

I further certify that all parties required to be served have been

served.

Catherine Hancock

7031 Freret Street

New Orleans, Louisiana 70118

(504) 865-5949

Counsel for Petitioner

23