Appendix — Sawyer v. Smith

/

IN THE

SUPREME COURT OF THE UNITED STATES

October Terra, 1989

ROBERT SAWYER,

Petitioner,

-

LARRY SMITH, Interim Warden,

Louisiana State Penitentiary,

Respondent.

APPENDIX TO

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 7OIIS

(S04) 865-5949; 865-5153

Counsel for Petitioner

TABLE OF CONTENTS

Opinion of the En Banc Court Below

Sawyer v. Butler, No. 87-3274,

slip op. at 5528 (Sth Cir. Aug. 15,

MP cece ee eee ee seseses

Letter from En Banc Court Requesting

Supplemental Briefs on Teague v.

OS er a a

Closing Arguments and Jury Instructions

in the Capital Sentencing Hearing .. . .

Opinion of the Fifth Circuit Panel

Sawyer v. Butler, 848 F.2d 582

(Sth Cir. 1988) (vacated in part

by en banc opinion)... ........

Opinion of the District Court

Sawyer v. Blackburn, 86-223 (E.D. La.

April 8, 1987) (order, memorandum

opinion, and judgment) .........

Magistrate's Findings and

Recommendations

Sawyer v. Blackburn, 86-223 (E.D.

La. Sept. 9, 1987) (adopted with

modifications by district court) .... .

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

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

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

Supreme Court Opinions in Death Penalty

Cases Since Witherspoon v. Illinois . .

OO er cm

SAWYER v. BUTLER 5528

Robert SAWYER, Petitioner-Appeliant,

United States Court of Appeals,

Fifth Circuit.

Aug. 15, 1989.

Eastern District of Louisiana,

Mentz, Jr., J., denied relief and defendant

curred prior to the United States Supreme

Court Caldwell decision, and (2) argument

did not violate the fundamental fairness

restriction of Donnelly.

Affirmed.

King, Circuit Judge, filed a dissenting

opinion in which Reaviey, Politz, Johnson,

and Jerre S. Williams, Circuit Judges,

joined and to which Alvin B. Rubin, Senior

Cireuit Judge, viewing himself ineligible to

1. Habeas Corpus 791

Habeas corpus petitioners are preclud-

ed from seeking to overturn their convic-

tions on the basis of rules which are new

by comparison with the date their convic-

tions became final.

2. Habeas Corpus ¢791

Habeas corpus petitioner may rely

upon a rule which is new in comparison to

his convietion if it would place certain kinds

of primary, private individual conduct be

yond the power of the criminal law-making

authority to proscribe or would exempt cer-

ment, or when the new rule requires ob-

servance of those procedures which are

implicit in the concept of ordered liberty

3. Habeas Corpus 794

Court would consider merits of peti-

tioner's interpretation of Supreme Court

opinion issued after his conviction before

determining whether he could rely on that

opinion to overturn his sentence of death.

4. Criminal Law © 1208.1(6)

Sentencing jury must feel the weight

of responsibility in imposing death sentence

so long as it has responsibility: lifting the

sense of responsibility frustrates the core

contribution of the jury and the cardinal!

justification for its role; for jury to see

itself as advisory when it is not. or to be

comforted by a belief that its decision will

not have effect unless others make the

same decision, is a frustration of the es-

sence of jury function.

5. Criminal Law ¢977(1)

Whether jury or judge decides sen-

tence, responsibility to decide must be ad-

joined to the power to decide

Synopse, Syliaby and Key Number Classification

COPYRIGHT © 1989 by WEST PUBLISHING CO

The Synopses. Syltat and Key Number Clacsifi

cation constitute ne part of the opmwn of the court

5529 SAWYER v. BUTLER

6. Criminal Law @713, 1171.1(6)

State cannot resist conclusion that it

improperly diminished jury's sense of re-

sponsibility in its sentencing role with the

argument that jury with such a diminished

responsibility nonetheless did not render

the proceedings fundamentally unfair.

7. Criminal Law ©7281), 7301)

Absence of objection and absence of

trial judge's participation with respect to

prosecutor's argument which diminishes

jury's responsibility for imposing the death

penalty are relevant to the question of

whether the jury was misled, but their ab-

sence is not determinative as a matter of

law of the question of whether the state

did mislead the jury

8. Criminal Law 713

Prosecutor's statements to the jury

which accurately describe its role in the

imposition of the death penalty will not

support a claim that the jury's sense of

responsibility has been improperly dimin-

ished, but a statement can be literally true

but quite misleading, such as by failing to

disclose information essential to make that

which is not said not misleading

9. Criminal Law 10301)

Essence of the doctrine of plain error

is that a loss of fundamental rights out-

weighs the values behind rules insisting

upon an objection

10. Habeas Corpus 774

Whether to insist upon contemporane

ous objection as a matter of orderliness is a

matter for the state court.

1. Jury 117

Timely objection is an essential ele-

ment of a claim of racial discrimination in

the exercise of peremptory challenges.

12. Criminal Law ¢1208.1(6)

Aithough prosecutor's argument will

often be the natural point of departure in

considering whether jury's sense of respon-

sibility for imposition of death penalty has

been improperly diminished, court must

also look to opposing argument and to the

instructions of the court, both in its formal

charge and in any rulings on objections.

13. Criminal Law ¢1208.1(4, 6)

In determining whether jury's sense of

responsibility for imposition of death penal-

ty has heen improperly diminished, inquiry

is whether. under all the facts and circum-

stances, including the entire trial record,

the state has misled the jury regarding its

role under state law to believe that the

responsibility for determining the appropri-

ateness of defendant's death rests else-

where.

14. Habeas Corpus 447

Federal court's role in habeas attack

on state court conviction is only to review

for errors of constitutional magnitude

15. Habeas Corpus 4447, 508

There is no fundamental unfairness in-

herent in refusing to wield federal power to

upset state court convictions and sentences

of death arrived at in complete conformity

to constitutional standards in place when

the convictions became final.

16. Habeas Corpus 462

Neither finality nor federalism will

condone constitutional! acquiescence in the

—

SAWYER v. BUTLER 5530

conviction of persons factually innocent of

the crime charged.

17. Habeas Corpus 794

When a new rule is dictated by prece

dent, state can reasonably be asked to an-

ticipate its articulation, and enforcing the

rule in a subsequent habeas corpus pro-

ceeding involving a person convicted prior

to the announcement of the rule does not

intrude upon the state's legitimate interest

in the finality of convictions, but new rule's

application must otherwise be barred.

18. Habeas Corpus 4-794

Supreme Court Caldwell decision deal-

prior decisions dealing with fundament

fairness of such jury arguments. US.C.A.

Const.Amend. 8.

19. Habeas Corpus 794

Habeas petitioner may not escape lim:

tation of use of a new rule by confining his

attack to the jury's decision to impose a

death rather than life sentence.

1. When this case was orally argued before

and considered by the court, Judge Rubin

was in regular active service. He partici-

pated in both the oral argument and the en

banc conference, and with Judge King in the

gues & Sr Gung opinion. He

senior status, however, on July 1, 1989.

Based on his understanding of the Supreme

20. Criminal Law 72311), 1208.1(4)

Prosecutor's closing argument indicat-

ing that jury's decision to impose the death

penalty would be reviewed did not render

death sentence fundamentally unfair.

Appeal from the United States District

Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, GEE,

REAVLEY, POLITZ, KING, JOHNSON,

WILLIAMS, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES,

SMITH and DUHE, Circuit Judges.’

PATRICK E. HIGGINBOTHAM,

Cireuit Judge:

Robert Sawyer was sentenced to death

by a Louisiana jury on September 19, 1980

for the brutal slaying of Frances Arwood.

Today we decide his appeal from the denial

by a United States District Court of his

petition for writ of habeas corpus. We

have elsewhere recorded the long history

of Sawyer's efforts to overturn his convie-

tion? Sawyer's attack has now boiled

down to three arguments. First, he argues

that his court-appointed trial counsel was

ineffective in certain respects. Serond, and

closely related to the first, he argues that

his conviction should be set aside because

his appointed counsel had not been licensed

for five years as required by La Code

Crim.P. art. 512. Finally, he argues that

the prosecutor in closing argument misled

Court decision in Linted — . Suet

S.Ct. 1336, 4 L. fad 1201 (1980). he consid

ers himself ineligible to participate in the

decision of this case, but he adheres to the

views in Judge King's dissent.

2. Sawyer v. Butler, $48 F.2d 582 (Sth Cir

1988).

5531 SAWYER v. BUTLER

the jury about its role in capital sentencing

as condemned by Caldwell v. Mississippi,

472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231

(1985).

A panel of this court rejected Sawyer's

contentions, dividing over the Caldwell is-

sue, and we took the case en banc. We

reject Sawyer's first two contentions for

the reasons stated by the panel, affirm the

district court's denial of Sawyer's petition

for relief from his conviction, and turn to

the difficult question of whether Sawyer is

entitled to a new sentencing hearing be-

cause the state misled the jury about the

jury's responsibility in deciding whether

Sawyer should be executed.

Part I summarizes the facts. In Part II

we sketch the constitutional principles that

frame our inquiry. We next in Part III

address the statutory overlay to the consti-

tutional issues, as presented by the Su-

preme Court's recent decision in Teague r.

Lane, — US. ——, 109 S.Ct. 1060, 103

L.Ed.2d 334 (1989). Because we conclude

that we cannot apply Teague without first

defining the scope of Caldwell, we turn

back in Part IV to the substantive constitu-

tional questions. We endorse a version of

Sawyer's construction of Caldwell. We

find in Part V, however, that Caldwell so

defined is a new rule within the meaning of

Teague, and that Caldwell does not fit

within either of Teague 's two exceptions.

Sawyer's Caldwell argument is therefore

Teague-barred.

yer's death sentence only if Sawyer can

prevail under the earlier rule of Donnelly

v. DeChristoforo, 416 US. 637, 94 S.Ct.

1868, 40 L.Ed.2d 431 (1974). In Part VI we

conclude that Sawyer has no Donnelly

claim. We therefore affirm denial of Saw-

yer's petition to vacate his sentence.

Caldwell addressed constitutional issues

that arise when a prosecutor misleads a

capital jury about its responsibility for the

sentencing decision. The prosecutor's ar-

gument creates a possibility that the jury

will decide between life and death without

an appropriate sense of grave responsibili-

ty. Sawyer contends that Caldwell man-

dates a new sentencing trial any time a

prosecutor taints the proceeding with a

Caldwell-type argument, unless the argu-

ment had “no effect” upon the jury. Loui-

siana, however, says that a Caldwell-type

prosecutorial argument will not generate

constitutional grounds for reversal unless

the argument rendered the sentencing

phase “fundamentally unfair” to the defen-

dant. Louisiana would have us focus upon

effective prejudice to the defendant, rather

than effective dilution of the jury's sense

of responsibility. The case turns upon this

disagreement.

Sawyer's Caldwell claim arises out of

remarks which the prosecutor made in his

closing argument during the trial’s sen-

tencing phase. The details of the prosecu-

torial remarks are important to Sawyer's

argument. We therefore repeat those re-

marks here. The prosecutor told the jury,

The law provides that if you find one of

these circumstances then what you are

doing as a juror, 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 evidence you have heard in

relationship to this man's conduct are of

the opinion that there are aggravating

SAWYER v. BUTLER 5532

circumstances as defined by the stat-

ute, by the State Legislature that this is

a type of crime rappin ee

alty. It is merely a rec

so try as he may, if Mr. Weidner tells

you that each and every one of you I

hope can live with your conscience and

try and play upon your emotions, you

cannot deny, it is a difficult decision. No

one likes to make those [sic] type of

decision but you have to realize if but for

this man’s actions, but for the type of

life that he has decided to live, if of his

own free choosing, I wouldn't be here

presenting evidence and making argu-

ment to you. You wouldn't have to

make the decision (emphasis supplied].

The prosecutor drew the jury's attention to

the brutal nature of the crime for which

Sawyer stood convicted. The prosecutor

then returned to the theme of the jury's

responsibility, saying

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 deci-

sion is in your hands. You are the peo-

ple that are going to take the initial

step and only the initial 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 peo-

ple 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

impact of the law of Louisiana. All! you

are saying is that this man from his

actions could be prosecuted to the full-

est extent of the law. No more and no

less (emphasis supplied).

3. This word was likely recorded inaccurately

by the stenographer. From context, it is

clear that the prosecutor said, “It's all you re

After arguing that a death penalty was

justified in Sawyer's case, the prosecutor

struck the theme of jury responsibility

again, telling the jury that their mistakes

could be corrected by later decision-makers:

It's all your? doing. Don't feel other-

wise. Don't feel like you are the one,

because it is very easy for defense law-

yers 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 be-

lieve me, believe me there will be others

who will be behind you to either agree

with you or to say you are wrong so |

ask that you do have the courage of your

convictions (emphasis supplied).

The problem of Caldwell error touches

upon three of the Constitution's grandest

themes. Two of these are obvious. The

problem implicates federalism, because the

state asserts a power to decide for itself

questions of criminal procedure. Caldwell

analysis also concerns individual rights,

since the defendant contends that diminish-

ing a capital jury's sense of responsibility

subjects him to cruel and unusual punish-

ment. The third theme is perhaps less

obvious, but no less important to under-

standing the issues raised by a Caldwell

claim. Caldwell touches the principle of

popular self-government, because the di-

rect expression of popular sentiment

through junes remains an important aspect

of the people's participation in the govern-

ment, and a crucial check upon the state's

doing.” The two phrases sound identical,

but their meanings are nearly opposite.

5533 SAWYER

authority to define the limits of crime and

punishment.

The jury seems always to be at the cen-

ter of the judicial struggle with the death

penalty. This should noi be surprising.

Differences over the role of the jury reflect

differences over the wisdom of the penalty

itself. The legislative judgment specifying

execution as the punishment appropriate to

certain crimes embodies a confidence both

about the moral principles of the communi-

ty and about the capacity of the criminal

justice system to resolve factual disput: 3.

Coupled to that confidence must be an

equal certitude that the jury will be able to

bring the community's principles to bear,

and so judge blame and guilt accurately in

the individual case.

In McGautha v. California, 402 US.

183, 91 S.Ct. 1454, 28 L.Ed.2d 7i1 (1971),

Justice Harlan summarized how history

had given expression to this deep link be-

tween the death penalty and the jury. Jus-

tice Harlan explained that legislatures “to

meet the problem of jury nullification

did not try, as before, to refine further the

definition of capital homicides. Instead,

they adopted the method of forthrightly

granting juries the discretion which they

had been exercising in fact.” /d. at 199, 91

S.Ct. at 1463. Justice Harlan observed

that the Court had earlier concluded that

“one of the most important functions any

jury can perform in making such a selec-

tion is to maintain a link between contem-

porary and community values and the penal

system—a link without which the determi-

nation of punishment could hardly reflect

the evolving standards of decency that

mark the progress of a maturing society.”

Id. at 202, 91 S.Ct. at 1464, quoting With-

erspoon v. Illinois, 391 U.S. 510, 519 n. 15,

88 S.Ct. 1770, 1775 n. 15, 20 L.Ed.2d 776

(1968).

v. BUTLER

We have long recognized that decisions

that depend essentially upon inarticulable

judgment and common sense intuition are

prime candidates for jury decision. Indeed,

we refer to these judgments as “blackbox

decisions.” The sentencing decision in cap-

ital cases is born out of an inherent and

unique mixture of anger, judgment and

retribution, and requires a determination

whether certain acts are so beyond the pale

of community standards as to warrant the

execution of their author. This decision to

punish by death is a paradigmatic “black-

box” call. To say that the decision can at

best only be guided, not determined, by a

judicia! instruction or lawyers’ argument

underscores the decision's irreducible dis-

cretionary core.

A commitment to jury resolution of these

blackbox decisions reflects a commitment

to submit these issues to an active exercise

of practical judgment, rather than to the

reified precision of legal analysis. But the

jury, of course, checks not only legalism

but the government more generally. It

protects from punishment those defendants

who are innocent in the judgment of their

peers. For both these reasons, the right to

trial by jury has long been cherished within

our legal tradition. Blackstone commend-

ed juries as an “admirable criterion of

truth, and most important guardian both of

public and private liberty.” W. Blackstone,

4 Commentaries 407. The Constitution

expressly secures the right to jury trial. It

is, then, neither coincidental nor surprising

that the jury's integrity should be so ag-

gressively protected in capital cases, when

the stakes are so high.

Of course, the Court has since rejected

McGautha's teaching that “{t}o identify

before the fact those characteristics _.. in

language which can be fairly understood

SAWYER v. BUTLER 5534

and applied by the sentencing authority,

appear to be tasks which are beyond

present human ability.” 402 U.S. at 204,

91 S.Ct. at 1466. The Court has demanded

that states guide the jury's discretion. The

Court has also permitted states to take

some power away from the jury. But the

jury's sense of gravity, and the responsible

discretion it fosters, remain crucial to post-

McGautha sentencing schemes. Caldwell

articulates a constitutional protection

jury's perception of its awesome responsi-

bility.

In this sense, Caldwell itself is but the

trace of a more comprehensive rule, one

that might have trusted jury discretion to

protect individual rights and express the

scope of state power. The Court's post-

McGautha jurisprudence has_ instead

sought to secure individual rights by limit-

ing jury discretion, and has deferred to the

states’ own restrictions upon jury power.

The Constitution, after all, permits the peo-

ple to speak through state law as well as

through juries. Federalism, no less than

jury participation, ties local penalties to

local sentiment and local judgment.

Nonetheless, it is necessary to perceive

the larger theme in order to understand its

trace within the composition that remains.

Caldwell stands in part for the continuing

vigor of the ideals articulated by Justice

Harlan in McGautha. Caldwe!l treats

jury discretion within a framework that

recngnizes both federal and state limits

upon the jury's power. But it is the larger

whole behind the trace which accounts for

Caldwell's peculiar nexus to the constitu-

tional mix of individual autonomy, federal-

ism, and populism.

Indeed, this reflection of McGautha's

ideals in Caldwell forms the lynchpin of

Sawyer's argument here, and was the fulc-

rum for the argument that divided our

panel. Only if Caldwel/ harkens back to

the high esteem which McGautha accorded

jury discretion can Caldwel/ impose, as

Sawyer would have it, considerably more

stringent restrictions than its Due Process

Clause precursor, Donnelly v. DeChristo-

foro, 416 US. 637, 94 S.Ct. 1868, 40

L.Ed.2d 431 (1974). Donnelly subjected

prosecutorial argument to a generalized

“fundamental fairness” standard, which

would benefit Sawyer only were he able to

show actual prejudice from the argument

complained of. Sawyer's principal argu-

ment presupposes that the Eighth Amend-

ment, as interpreted by Caldwell, puts a

particular premium upon responsible jury

discretion in a proceeding that fixes punish-

ment at life or death. It is that premium

which would, on Sawyer's argument, distin-

guish Caldwell from Donnelly. The exist-

ence of that premium in turn assumes that

a jury's deliberation may be even more

crucial at the punishment phase than it is

in choosing between guilt and innocence

That assumption makes sense only if. as

Justice Harlan argued in McGautha, the

jury's capacity to express mora! sentiment

directly is peculiarly essential to questions

of capital blameworthiness.

{1} Because Sawyer's claim comes be-

fore us by way of a habeas petition, not by

direct appeal, we view the delicate constitu-

tional mix through a similarly complex stat-

utory overlay. The law of the habeas writ

balances the vindication of constivutional

rights against the state's constitutionally

legitimate interest in maintaining a crimi-

nal justice system capable of producing

fina! convictions. The Supreme Court re-

fined anew this balance in Teague v. Lane,

— US. —, 109 S.Ct. 1060, 103 L.Ed.2d

334 (1989). Teague's rule precludes habe-

5535 SAWYER v. BUTLER

as petitioners from seeking to overturn

their convictions on the basis of rules new

by comparison with the date their convic-

tions became final. This statutory balance

provides, however, exceptions for constitu-

tional claims of a certain character. It may

therefore wrap back around the constitu-

tional issues, and so, in Sawyer's case, back

around the questions about jury responsi-

bility in capital cases. Yet a plurality, at

least, of the Teague Court regarded the

Teague retroactivity inquiry as a preemp-

tive threshold to constitutional analysis.

109 S.Ct. at 1069. Accord, Penry v. Ly-

naugh, — US. ——, 109 S.Ct. 2934, 2944,

— LEd.2d —— (1989) (applying Teague

as threshold barrier to constitutional analy-

sis). Because Teague may present a

threshold barrier to fuller consideration of

Sawyer’s constitutional claims, we begin

our analysis with that case.

Il

The Supreme Court did not decide Teag-

ue until after the en banc court heard oral

argument in this case. At our request the

parties have filed briefs regarding Teag-

ue's applicability to Sawyer's petition.

{2] Teague adopts much of what Justice

Harlan long advocated as the correct view

of federal habeas. Under Teague a federal

habeas petitioner attacking a final state

conviction may rely only upon the law in

effect when his conviction became final.

There are two exceptions. First, the pet

tioner may rely upon a new rule if it would

place “certain kinds of primary, private

individual conduct beyond the power of the

criminal law-making authority to pro-

scribe.” Jd, 109 S.Ct. at 1073 (quoting

Mackey v. United States, 401 U.S. 667,

692, 91 S.Ct. 1160, 1175, 28 L.Ed.2d 404

(1971) (Harlan, J., concurring in part and

dissenting in part)). The Court has since

declared that this first exception also ap-

plies to rules which exempt certain persons

entirely from capital punishment. Penry,

109 S.Ct. at 2955. Second, the petitioner

may rely on a new rule requiring the ob-

servance of “those procedures that ... are

‘implicit in the concept of ordered liberty’ ”

Teague, 109 S.Ct. at 1073, quoting Mackey,

401 U.S. at 693, 91 S.Ct. at 1180 (opinion of

Harlan, J.) (inside quote from Palko v.

Connecticut, 302 U.S. 319, 325, 58 S.Ct.

149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.)).

A majority of the Teague court fully

subscribed to this restriction on the use of

federal habeas to attack final state court

convictions. Teague left much of the re-

striction’s content in doubt, although some

of that ambiguity was removed by the

Court's later decision in Pexry-eLynaugh,

109 S.Ct. 2934, 2944 (opinion of O'Connor,

J., for the Court). In Teague itself, four

justices concluded, in an opinion by Justice

O'Connor, that the second proviso, drawn

from Cardozo's incorporation formulation,

should be modified to limit its scope “to

those new procedures without which the

likelihood of an accurate conviction is seri-

ously diminished.” 109 S.Ct. at 1076-77.

The remaining justices filed four separate

opinions: Justice White concurred sepa-

rately, as did Justice Stevens; Justice

Blackmun joined part of Justice Stevens's

opinion, and added a brief writing of his

own; and Justices Brennan and Marshall

dissented.

Teague was not a capital case, and the

plurality disclaimed any decision regarding

its application to an effort by a state pris-

oner to overturn his death sentence. Jus-

tice Stevens joined Justice O'Connor's opin-

ion insofar as it adopted Justice Harian's

restrictions on federal habeas. He dissent-

— ee ee

een

SAWYER v. BUTLER 5536

ed, however, from the plurality’s insistence

that “the only procedural errors deserving

correction on collateral review are those

that undermine ‘an accurate determination

of innocence or guilt’...." /d. at 1081.

He suggested that “a touchstone of factual

innocence would provide little guidance in

certain important types of cases, such as

those challenging the constitutionality of

capita! sentencing hearings.” /d. Justice

Stevens noted that Justice Harlan’s inter-

est in making convictions final was “an

interest that is wholly inapplicable to the

capital sentencing context.” /d. at 108i n.

3. Justice O'Connor's plurality opinion re-

plied that because Teague was not himself

under a death sentence, the Court need not

express any opinion “as to how the retroac-

tivity approach we adopt today is to be

applied in the capital sentencing context.

We do, however, disagree with Justice Ste-

vens's suggestion.... As we have often

cludes the sentence imposed upon the de-

fendant.” /d. at 1077 n. 3.*

Note three did not gain majority support,

since Justice White neither joined it nor

otherwise mentioned Teague 's application

to death cases. Justice Brennan's dissent-

ing opinion, jeined by Justice Marshall, as-

sumes that the plurality would apply the

new limits to death cases, and observes

that “the plurality’s new rule apparently

would not prevent capital defendants

from raising Eighth Amendment, due pro-

cess, and equal protection challenges to

capital sentencing procedures on habeas

corpus.” /d. at 1089 n. 5.

The Penry decision settled Teague 's ap-

plication to death cases. In Part II-A of

her opinion for a fractured Court, Justice

4. Justice Blackmun joined Justice Stevens's

reservations about age’ applicability to

O'Connor, joined by the Chief Justice and

Justices White, Scalia, and Kennedy, held

that Teague did apply to capital cases. The

plurality simply observed that the finality

concerns underlying the Teague doctrine

hold equally well in capital cases, and of-

fered no further analysis. The four re-

maining Justices dissented from the rele-

vant portion of Justice O'Connor's opinion.

it remains unclear, however, whether

Teague necessarily operates as a threshold

barrier preempting full analysis of the con-

stitutional claims asserted. The Teague

plurality clearly thought that a Teague bar

would preempt discussion of the constitu-

tional merits. 109 S.Ct. at 1069-70, 1077.

However, Justices Stevens and Blackmun,

who joined the plurality to constitute a

majority in favor of Justice Harlan’s ap-

proach to retroactivity, expressly rejected

the plurality’s position on this matter. Jus-

tice Stevens, joined by Justice Blackmun,

contended that the Court should proceed by

“first determining whether the trial pro-

cess violated any of the petitioner's consti-

tutional rights and then deciding whether

the petitioner is entitled to relief.” Justice

Stevens went on to observe that, absent a

precise formu.ation of the rule in question,

it may be difficult to determine whether

the rule is in fact “new” at all. /d at

1079-80 & n. 2. Finally, Justice White

once again declined to join the relevant

portion of the plurality opinion, leaving un-

clear his own position on the relation be-

tween the constitutional and Teague issues.

On this point, Penry leaves the matter

unclear. A majority did join a portion of

Justice O'Connor's opinion which character-

ized Teague as a rule to be applied “as a

death cases.

5537 SAWYER v. BUTLER

threshold matter,” 109 S.Ct. at 2944 (Part

II-A). Indeed, in Part IV-A all nine Jus-

tices joined a portion of the opinion which

included a reference to Teague as a thresh-

old test. /d. at 2952. We must take care,

however, not to overstate the significance

of these votes. Thus, although Justice Ste-

vens joined Part IV-A of Justice O'Con-

nor's opinion, he reiterated in a separate

concurrence his view that the constitutional

rule should be articulated before Teague is

applied. The threshold character of the

Teague bar was not the primary topic of

Part II-A or Part IV-A, and it would be

unwise to assume that each Justice joining

those parts intended that Teague function

as a threshold barrier in every case where

it applied.

More importantly, however, Justice

O'Connor's own opinion mixed the Teague

inquiry with the constitutional questions.

In order to decide that Penry'’s requested

rule was dictated by precedent, and so not

new, she had to decide precisely the sub-

stantive question which divided the Justices

five-to-four over Part Il of her opinion:

that is, the question of whether Penry's

proposed rule was the best possible inter-

pretation—let alone the interpretatiun “dic-

tated by’ —Supreme Court precedent. 109

S.Ct. at 2944-46 (Part II-B). Likewise,

Justice Scalia, dissenting in part and joined

by the Chief Justice, Justice White and

Justice Kennedy, observed that “(t]he mer-

its of the mitigation ‘ssue, and the question

of whether, in raising it on habeas, petition-

er seeks application of a ‘new rule’ within

the meaning of Teague, are obviously in-

terrelated.” 199 S.Ct. at 2964.

The relationships that led to a mixing of

the Teague issues and the constitutional

issues in Penry become all the more power-

ful when a petitioner attempts not to estab-

lish a new rule, but to rely, as Sawyer

would like to, upon a rule that is new by

comparison to his ewn conviction yet is well

established by the time of his habeas peti-

tion. In such a case, a court may have to

reach the constitutional questions even to

define what the petitioner complains of—in

Sawyer's case, for example, “Caldwell er-

ror." Moreover, the court does not risk the

awkward outcome of establishing a new

rule in a case where it has no application.

See Teague, 109 S.Ct. at 1077-78. The rule

relied upon—for example, the rule govern-

ing Caldwell error—exists by the time the

Teague issues arise in connection with a

particular prisoner's petition.

Indeed, Sawyer's argument illustrates

the difficulties that may arise from an at-

tempt to separate Teague analysis from the

substance of the constitutional claims

raised. Whether Caldwell is a new rule,

and whether Caldwell is a rule “implicit in

the concept of ordered liberty” that impli-

cates factual innocence, both depend in

part upon what Caldwell means, and, more

specifically, upon the relation between

Caldwell and Donnelly. This dependence

is made unmistakably clear by Louisiana's

briefing of the Teague issue, which sug-

gests that Teague is no bar to Sawyer's

Caldwell claim precisely because Sawyer is

wrong about the relation between Ca/dwel/

and Donnelly. If the Supreme Court had

made clear that Teague necessarily bars an

inquiry into the merits of the petitioner's

constitutional claims, we would perhaps

have to resolve the Teague issues by a

conditional discussion of Teague 's applica-

tion to what Sawyer says Caldwell might

mean. Such a conjectural analysis of possi-

ble rules would, however, entail considera-

ble awkwardness, do nothing to clarify the

substantive law, and defeat rather than

serve judicial economy—which would be

the ostensible goal of any version of Teag-

A- 10

SAWYER v. BUTLER 5538

ue that preempted some constitutional in-

quiries.

{3} We thus choose to address the mer-

its of Sawyer’s interpretation of Caldwell

before applying Teague to Caldwell. We

do not mean, however, by adopting this

strategy to suggest that Teague never bars

inquiry into the constitutional merits of a

petitioner's claim. It remains possible that

an application of Teague to a conjectural

rule may be appropriate in cases where the

Teague issues do not turn, as they do here,

upon a highly precise specification of the

rule in question. We leave that issue for a

case in which it is properly presented, and

turn to the merits of the constitutional

arguments

IV

{4} At a general level, Caldwell's im-

port «clear Regardless of whether the

Court moves toward or away from the

McGautha acceplnce of juror discretion,

the sentencing jury must continue to feel

the weight of responsibility so long as it

has responsibility. Lifting the sense of

responsibility frustrates the core contribu-

tion of the jury and the cardinal justifica-

tion for its role. For the jury to see itself

as advisory when it is not, or to be comfort-

ed by a belief that its decision will not have

effect unless others make the same deci-

sion, is a frustration of the essence of the

jury function. It is not surprising then

that jury arguments calculated to have that

effect have long been condemned by nu-

merous jurisdictions. See Caldwell, 105

S.Ct. at 2642 nn. 4 & 5. See also Mello,

Taking Caldwell v. Mississippi Seriously,

30 B.C.L.Rev. 283, 305-308 & nn. 100-114

(1989). The decision of the Court in Cald-

well reflects this reality, insight born more

vf experience than of empirical study or

abstract exposition.

15] In no way is the importance of

Caldwell error diminished by the possibili-

ty that a state may dispense with the jury's

sentencing power in capital cases. See

Spaziano v. Florida, 468 US. 447, 104

S.Ct. 3154, 82 L.Ed.2d 340 (1984). The evil

of Caldwell-type prosecutorial arguments

is not that they divest juries of their re

sponsibility, but rather that they distort the

jury's understanding of a power which it in

fact retains. The decision-maker empow-

ered to choose between life and death must

not be relieved of the gravity attending

that choice. Whether a judge or jury de-

cides the sentence, the responsibility to de-

cide must remain adjoined to the power to

decide. It would, of course, be less likely

that a prosecutor could mislead a judge,

whose own knowledge of the law should

overcome any misleading argument. But a

judge who misunderstands the sentencing

decision in a capital case creates a Constitu-

tional defect no less significant than a jury

which misunderstands its decision. Cf

Hickerson v. Maggio, 691 F.2d 792, 794-95

(Sth Cir.1982).

The argument between Sawyer and Loui-

siana does not draw into question these

general observations. Sawyer contends

that Caldwell, recognizing the unique role

of the jury in capital sentencing, imposes

an especially stringent procedural safe-

guard by requiring that the defendant re-

ceive a new sentencing hearing if the pros-

ecutor’s argument had any effect on the

jury's perception of its own responsibility.

Louisiana concedes the impropriety of pros-

ecutorial argument that misleads the jury

as to its role, but contends that the sen-

tencing phase is marred by a constitutional

defect only if the prosecutorial argument

ll

5539 SAWYER v. BUTLER

rendered it “fundamentally unfair.” Ac-

cording to Louisiana, Caldwell did not es-

tablish a “no effect” test for constitutional

error, but simply applied Donnelly 's “fun-

damental fairness” test to the facts of a

sentencing hearing. On this argument,

Caldwell extends Donnelly to punishment

proceedings without altering Donnelly's

rule by any reaffirmation of McGautha's

reflections upon jury responsibility.

It is this argument which brought the

case before the en banc court. To resolve

it, we must consider Caldwell in some de-

tail. We begin with the facts.

Caldwell killed the owner of a grocery

store in the course of a robbery. His law-

yers’ plea for mercy at the sentencing

phase of his capital murder trial rested on

his poverty, troubled youth, and character

evidence. His lawyers argued

[E}very life is precious and as long as

there's life in the soul of a person, there

is hope. There is hope, but life is one

thing and death is final. So | implore

you to think deeply about this matter. It

is his life or death—the decision you're

going to have to make, and | implore you

to exercise your prerogative to spare the

life of Bobby Caldwell.... I'm sure [the

prosecutor is] going to say to you that

Bobby Caldwell is not a merciful person,

but I say unto you he is a human being.

That he has a life that rests in your

hands. You can give him life or you can

give him death. It's going to be your

decision. I don't know what else I can

say to you but we live in a society where

we are taught that an eye for an eye is

not the solution.... You are the judges

and you will have to decide his fate. It is

an awesome responsibility, | know—an

awesome responsibility.

Caldwell, 105 S.Ct. at 2637. The argument

triggered the following exchanges:

“ASSISTANT DISTRICT ATTORNEY:

Ladies and gentlemen, | intend to be

brief. I'm in complete disagreement

with the approach the defense has taken.

I don't think its fair. I think it's unfair.

I think the lawyers know better. Now,

they would have you believe that you're

going to kill this man and they know—

they know that your decision is not the

final decision. My God, how unfair can

you be? Your job is reviewable. They

know it. Yet they ...

“COUNSEL FOR DEFENDANT: Your

Honor, I'm going to object to this state-

ment. It's out of order.

“ASSISTANT DISTRICT ATTORNEY:

Your Honor, throughout their argument,

they said this panel was going to kill this

man. I think that’s terribly unfair.

“THE COURT: Alright, go on and make

the full expression so the Jury will not be

confused. I think it proper that the jury

realizes that it is reviewable automatical-

ly as the death penalty commands. I

think that information is now needed by

the Jury so they will not be confused.

“ASSISTANT DISTRICT ATTORNEY:

Throughout their remarks, they attempt-

ed to give you the opposite, sparing the

truth. They said ‘Thou shalt not kill.’ If

that applies to him, it applies to you,

insinuating that your decision is the final

decision and that they're gonna take Bob-

by Caldwell out in the front of this

Courthouse in moments and string him

up and that is terribiy, terribly unfair.

For they know, as | know, and as Judge

Baker has told you, that the decision you

render is automatically reviewable by the

Supreme Court. Automatically, and I

A- 12

SAWYER v. BUTLER 5540

think it’s unfair and I don't mind telling

them so.”

Id. at 2637-38. A divided Mississippi Su-

preme Court affirmed and the Supreme

Court granted certiorari. Speaking for the

Court, Justice Marshall concluded that “it

is constitutionally impermissible to rest a

death sentence on a determination made by

a sentencer who has been led to believe

that the responsibility for determining the

appropriateness of the defendant's death

rests elsewhere.” Caldwell, 105 S.Ct. at

2639. He explained that the court's post-

Furman review of state procedures “has

taken as a given that capital sentencers

would view their task as the serious one of

determining whether a specific human be-

ing should die at the hands of the State.”

Id. at 2640. He then found “specific rea-

sons to fear substantial unreliability as

well as bias in favor of death sentences

when there are state-induced suggestions

that the sentencing jury may shift its sense

of responsibility to an appellate court.” /d.

The State proposed three reasons why

the prosecutor's argument should not upset

the death sentence. The State argued that

under California v. Ramos, 463 U.S. 992,

1001-06, 103 S.Ct. 3446, 3453-56, 77

L.Ed.2d 1171 (1983), it was free to instruct

juries in capital cases about appellate pro-

cesses. In part IV(a) of the Caldwell opin-

ion, joined only by Justice Brennan, Justice

Blackmun and Justice Stevens, Justice

Marshall rejected this argument. He con-

cluded that, unlike in Ramos, the argument

in Caldwell was not relevant to a valid

state penological interest and was mislead-

ing. In the Caldwell plurality's view, ap-

pellate review was simply not relevant to

the juror’s task of determining an appropri-

ate sentence. For that reason, the prosecu-

tor’s argument that the jurors should view

themselves as only taking a preliminary

A- 13

step in the sentencing determination served

no valid state interest. Justice O'Connor's

concurring opinion agreed, but refused to

read Ramos “‘to imply that the giving of

nonmisleading and accurate information

regarding the jury's role ... is irrelevant

to the sentencing decision.” /d., 105 S.Ct.

at 2646 (O'Connor, J., concurring; empha-

sis in original). In her view the prosecu-

tor's argument was impermissible because

it misled “in a manner that diminished the

jury's sense of responsibility.” Jd.

The Court next rejected the state's con-

tention that the prosecutor's argument was

a reasonable response to defense counsel's

argument. The Court observed that the

prosecutor's reference to appellate review

did not respond to defense counsel's sug-

gestion that a sentence of life would be

without parole, nor to the defense’s reli-

gious theme and plea for mercy.

Finally, and most importantly for our

purposes, the Court rejected the State's

contention that in any event the effect of

the prosecutor's argument should be mea-

sured by the standard of Donnelly v. De-

Christoforo, which would judge improper

prosecutorial arguments to vitiate a sen-

tencing proceeding only if they rendered

the proceedings fundamentally unfair.

The Court distinguished Donnelly on two

grounds. First, the Court pointed out that

in Donnelly the trial court gave a strong

curative instruction to the jury, while in

Caldwell the judge not only gave no cor-

recting instruction but “stated to the jury

that the remarks were proper.” /d., 105

S.Ct. at 2645. Second, in Donnelly the

remarks were ambiguous and not focused

pointedly upon “ ‘the principal concern’ of

our jurisprudence concerning the death

penalty, the ‘procedure by which the State

imposes the death sentence." /d. (quoting

5541 SAWYER v. BUTLER

California v. Ramos, 463 U.S. at 999, 103

S.Ct. at 3452).

Justice Rehnquist, joined by Justice

White, dissented, contending that when the

argument was placed in its full trial setting

it “fell far short of telling the jury that it

would not be responsible for imposing the

death penalty.” 105 S.Ct. at 2649 (Rehn-

quist, J., dissenting). Rather, “the thrust

of the prosecutor's argument was that the

jury was not solely responsible for petition-

er's sentence.” /d. at 2650 (emphasis in

original). He observed that under Ramos

there was nothing wrong with telling a

jury that its decision is subject to appellate

review, and that the prosecutor did not

mislead the jury by suggesting that its

decision would be subject to de novo re

view.

The division between the Caldwell major-

ity and the dissenting Justices, like the

division between Sawyer's argument and

Louisiana's argument, turns in significant

part upon the fate of Donnelly's “funda-

mental fairness” formula in capital sen-

tencing proceedings. As we shall see, the

effect upon a death sentence of Caldwell

error and the nature of the inquiry into

whether it exists, including the record

sources to be examined, are entwined parts

of its very definition. That is, what a

reviewing court is to look for and how it is

to set about judging its effect upon a crimi-

nal conviction is part of the definition of

Caldwell error. Much of the argument

here is over the ingredients of the prohibi-

tion.

Sawyer, as we have said, argues that

Caldwell modifies Donnelly by mixing in

traces of the regard for jury decision-mak-

ing so powerfully articulated in McGautha.

Sawyer argues that the prosecutor's argu-

ment at the sentencing phase of his trial

misled the jury regarding its role. In par-

ticular, he contends that the argument un-

ambiguously told the jury that its role was

only to recommend punishment and that

others would check their decision. an argu-

ment even more pointed than in Caldwell.

Sawyer maintains that such an argument

effectively renders a proceeding fundamen-

tally unfair by definition, and that the stan-

dard of Donnelly is therefore inapplicable

because superfluous. It follows, he ar-

gues, that he is entitled to a new sentenc-

ing hearing before a jury properly aware of

its responsibility. According to Sawyer,

neither a contemporaneous objection nor

participation by the trial judge are prereq-

uisites to a Caldwell claim. Caldwell man-

dates a new sentencing hearing so long as

the court reviewing Caldwell error “cannot

say that [the prosecutor's statements} had

no effect on the sentencing decision.”

Caldwell, 472 U.S. at 328-329, 105 S.Ct.

2639-2640. Sawyer says that in Kirkpat-

rick v. Blackburn, 777 F.2d 272, 289-90

(5th Cir.1985), this court declared that “the

no effect test applies to the state's effort to

minimize the jury's sense of responsibility,

not to every other improper argument.”

He maintains that the Supreme Court in

Darden v. Wainwright adopted this court's

position holding Caldwell applicable in any

case where the prosecutor “mislead{s] the

jury as to its role in the sentencing process

in a way that allows the jury to feel less

responsible than it should for the sentenc-

ing decision.” Dardex, 477 U.S. 168, 184

n. 15, 106 S.Ct. 2464, 2473 n. 15, 91 L.Ed.2d

144 (1986). ,

As already mentioned, Louisiana con-

tends, in essence, that Caldwell merely ap-

plies Donnelly to a case where the combi-

nation of prosecutorial and judicial action

at a sensitive moment rendered the pro-

ceedings especially unfair to the defendant.

A- 14

—_——— ee

SAWYER v. BUTLER 5542

{6} We agree with Sawyer that Cald-

well must be read in light of McGautha.

The state cannot resist a conclusion that it

improperly diminished a jury's sense of re-

sponsibility in its sentencing role with the

argument that a jury with such diminished

responsibility nonetheless did not render

the proceedings fundamentally unfair.

See, eg., Coleman v. Brown, 802 F.2d

1227, 1238-41 (10th Cir.1986), cert. denied,

482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383

(1987); see also Campbell v. Kincheloe,

829 F.2d 1453, 1460-61 (9th Cir.1987), cert.

denied, —- US. ——, 109 S.Ct. 380, 102

L.Ed.2d 369 (1988); Dutton v. Brown, 812

F.2d 593, 596-97 (10th Cir.1987) (en banc),

cert. denied, —- U.S. ——, 108 S.Ct. 116,

98 L.Ed.2d 74 (1987); Mann v. Dugger, 844

F.2d 1446, 1457-58 (11th Cir.1988) (en

banc). Cf Hopkinson v. Shillinger, 866

F.2d 1185, 1226-33 (10th Cir.1989); id. at

1233-38 (Logan, J., dissenting). Once it is

accepted that a death sentence by a jury

with such a diminished sense of responsibil-

ity is “fundamentally incompatible with the

Eighth Amendment requirement that the

jury make an individualized decision that

death is the appropriate punishment in a

specific case’’—and the Supreme Court has

told us precisely that, see Darden, 106

S.Ct. at 2473 n. 15,—it is apparent that, as

Sawyer contends, the Donnelly issue of

fundamental fairness is subsumed in the

threshold question of whether there was

Caldwell error.

{7} If the state has misled the jury in

the manner condemned by Caldwell, it can

be no answer that the culprit was the pros-

ecutor and not the judge. With either

source, the error is the same. Although in

Caldwell there was an objection and a po

tent affirmation of the misleading argu-

ment by the trial judge, the relevance of

these events was to the question of wheth-

er the jury was actually misled. In other

words, the absence of objection and trial

judge participation are highly relevant to

the question of whether a jury was misled,

but their absence is not determinative as a

matter of law of the question of whether

the state misled the jury. We do not read

the Court's opinion in Darden to the con-

trary.

{8} “To establish a Caldwell violation, a

defendant necessarily must show that the

remarks to the jury improperly described

the role assigned to the jury by local law.”

Dugger v. Adams, — US. —, 109 S.Ct.

1211, 1215, 103 L.Ed.2d 435 (1989). In

short, a prosecutor's statements to the jury

accurately describing its role will not sup-

port a Caldwell claim. At the same time, a

statement can be literally true but quite

misleading by failing, for example, to dis-

close information essential to make what

was said not misleading. Indeed much of

our law of fraud under the Securities Act

A-15

— <2 <<

5543 SAWYER v. BUTLER

rests on just such a reality. See 17 C.F.R.

240.10b-5(b).

{9,10} It is suggested that, in spite of

these considerations, a willingness to find

Caldwell error from unobjected to argu-

ment by a prosecutor unwisely creates an

incentive for defense counsel to not object.

After all, an objection may lead to a cura-

tive instruction and any appellate point is

not lost by remaining silent. The question-

able validity of the assumed incentives

aside, these concerns as well as the other

values that lie behind our usual insistence

that error be preserved are not unique to

Caldwell error. The essence of the doc-

trine of plain error is that a loss of funda-

rules insisting upon an objection. More to

the point, the decision to entertain claimed

consututional error without a contempera-

neous objection belongs in the first in-

stance to the state, when as here, we re-

view a state court conviction. A state may

insist upon a contemporaneous objection.

And, ordinarily, a federal habeas court is

bound by that decision and cannot reach

claims of error found by the state to have

been waived. Dugger v. Adams, 109 S.Ct.

at 1215. In short, whether to insist upon a

contemporaneous objection as a matter of

orderliness, as distinguished from the ques-

tion of whether an objection is an element

of the constitutional claim itself, is a mat-

ter for the state court.

{11} It is suggested that even if the

Caldwell issue must be addressed because

the state reached its merits, a contempora-

neous objection is an element of a Caldwell

claim. We have concluded that a timely

objection is an essential element of a claim

of racial discrimination in the exercise of

preemptory challenges under Batson vr.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986). Jones v. Butler, 864

F.2d 348, 369 (5th Cir. 1988) (on petition for

rehearing). But the constitutional rule in

Batson rests on a change in the require-

ment of proof from that of Swain v. Ala-

bama, 380 US. 202, 85 S.Ct 824, 13

L.Ed.2d 759 (1965) (insisting upon proof of

a pattern of discrimination by prosecutors

in cases) to the case specific procedures of

Batson. Teague, 109 S.Ct. at 1066. Bat-

son assures an objecting defendant that a

articulate non-racial reasons for its deci-

sions. An objection is plainly central to a

Batson claim. Caldwell, by contrast, rests

on “the assumption that a capital sentenc-

ing jury recognizes the gravity of its task

and proceeds with the appropriate aware-

ness of its ‘truly awesome responsibility.’ ”

Caldwell, 105 S.Ct. at 2646. It instructs

that if the State seeks “to minimize the

jury's sense of responsibility for determin-

ing the appropriateness of death,” and “we

cannot say that this effort had no effect on

sion does not meet the standard of reliabili-

ty that the Eighth Amendment requires.”

Id. In Caldwell, unlike in Batson, the

constitutional defect—if it exists—is ob-

servable and measurable by a reviewing

court even absent any objection. We reject

the suggested analogy between these two

very different doctrines.

In sum, we reject Louisiana's proffered —

definition of Caldwell. We do so after

noting that its core is diminishing the re

sponsibility of the jury by misdescribing its

role under state law and after rejecting the

suggestion that its elements include show-

ings of fundamental! unfairness, a contem-

poraneous objection or trial court partic-

A- 16

SAWYER v. BUTLER 5544

{12,13} Continuing our definition of

Caldwell error, we turn to the question of

what an appellate court looks to in gauging

the state's conduct, and quickly find that

the nature of the prohibition takes us a

long way toward the answer. What has

been communicated to the jury by the state

cannot be disentangled from the total trial

scene, and thus that is our terrain. While

the prosecutor's argument will often be the

natural point of departure, we must turn to

the opposing argument and then to instruc-

tions of the court, both in its formal charge

and in any rulings on objections. The ini-

tial focus will be upon the close of the

sentencing hearing, yet inquiry may pro-

ceed not only to the guilt phase but to jury

selection as well. In short, 4 trial cannot

be cabined into distinct segments. As the

Supreme Court phrased it: “not only is the

challenged instruction but one of many

such instructions, but the process of in-

struction itself is but one of several compo-

nents of the trial which may result in the

judgment of conviction.” Cupp v. Naught-

en, 414 US. 141, 147, 94 S.Ct. 396, 400, 38

L.Ed.2d 368 (1973). We conclude that the

inquiry is whether under all facts and cir-

cumstances, including the entire trial

record, the state has misled the jury re-

garding its role under state law to believe

that the responsibility for determining the

appropriateness of defendant's death rests

elsewhere.

While this is inevitably a case-by-case

inquiry with a broad terrain to be sur-

veyed, there are a number of events that

obviously may loom large and quickly fo-

cus the inquiry. First, the trial judge is an

extraordinarly puissant figure. A direct

and uncorrected misstatement to the jury

that misleads the jury regarding its role

will be difficult to salvage. For example,

Caldwell error was found by the Eleventh

Circuit when a trial judge told the jury that

he was the ultimate determinant of wheth-

er the defendant was sentenced to death.

The Circuit reached this conclusion even

though the jury's role under Florida law is

advisory. Adams v. Wainwright, 804 F.2d

1526, 1532-33 (1986), modified on denial

of rehearing, 816 F.2d 1493 (1987), rev'd

on other grounds, Dugger v. Adams, —

US. ——, 109 S.Ct. 1211, 103 L.Ed.2d 435

(1989). Second, the absence of objection by

competent counsel may suggest that the

argument as it played in the courtroom was

less pointed than it now reads in the tran-

script. Third, the argument may take on a

different hue when read as a reply to op

posing counsel. Fourth, the court may

have mitigated the effect of counsel's argu-

ment by instructing the jury that the judge

is the sole source of the law and that the

lawyer's arguments are not evidence.

Fifth, veniremen often receive extensive

tions, as well as the questions and advices

of counsel, are also relevant. Finally,

through the course of trial the judge may

give detailed instructions to the jury about

its role. Such familiar instructions are

part of the message to the jury and all

must be considered. We list these lines of

inquiry to explain the scope of inquiry that

may be required in review of asserted

Caldwell error, without suggesting that

the list is exhaustive. By definition, it is

not and cannot be. Indeed, in some cases

the presence or absence of error will be

readily determinable solely on the basis of

the prosecutor's argument and the trial

judge's treatment of it.

V

A

Sawyer's conviction was final at least by

1984 when the Supreme Court denied his

A- 17

5545 SAWYER v. BUTLER

petition for certiorari. See Sawyer v. Lou-

isiana, 466 U.S. 931, 104 S.Ct. 1719, 80

L.Ed.2d 191 (1984). Because Sawyer

wishes to rely on the Court's later decision

in Caldwell, he must grapple with the limi-

tation of Teague. Sawyer first argues that

Teague does not bar his argument because

Caldwell did not announce a new rule, so

that the prosecutor's argument was consti-

tutionally infirm measured by the law in

place in 1984 when his conviction became

final.

The Supreme Court's decision in Penry,

left the definition of a “new rule” in some

doubt. Justice O'Connor reiterated her

statement, first presented in Teague, that a

case “announces a new rule when it breaks

new ground or imposes a new obligation on

the States or the Federal Government, [or,]

to put it differently ... if the result was

not dictated by precedent.” Penry, 109

S.Ct. at 2944 (quoting Teague, 109 S.Ct. at

1070 (plurality opinion). Yet Justice O'Con-

nor's application of this standard led Jus-

tice Scalia, joined by three colleagues, to

contend that the Court had only given “lip-

service” to the Teague standard. Penry,

109 S.Ct. at 2964 (opinion of Scalia, J.,

dissenting; Part II). Justice Scalia said

that “it challenges the imagination to think

that today’s result is ‘dictated’ by our prior

cases.” /d. at 2965. He went on to say

that “{i)f Teague does not apply to a

claimed ‘inherency’ as vague and debatable

as that in the present case, then it applies

only to habeas requests for plain overrul-

ing,” and went so far as to remark that

“{it) is rare that a principle of law as signif-

icant as that in Teague is adopted and

gutted in the same term.” /d. at 2965.

Justice Scalia's comments are especially

significant because he speaks on behalf of

all three Justices who joined Justice O'Con-

nor's plurality opinion in Teague, and on

behalf of Justice White as well. Yet, Jus-

tice Brennan, in his separate Penry opin-

ion, apparently does not agree with Justice

Scalia that Teague has been gutted. Jus-

tice Brennan reiterates his contention, first

made in his dissent from Teague itself, that

the Teague rule is an “unprecedented cur-

tailment of the reach of the Great Writ,”

and accuses the majority of compounding

its errors by extending Teague to death

cases.

Indeed, Justice O'Connor's application in

Penry of Teague's “new rule” formula

may well have turned upon facts which she

thought unique to Penry's claims. In Jus-

tice O'Connor's view, Penry sought only to

compel Texas “‘to fulfill the assurance upon

which [Jurek v. Teras, 428 US. 262, 96

S.Ct. 2950, 49 L.Ed.2d 929 (1976)] was

based: namely, that the special issues

would be interpreted broadly enough to

permit the sentencer to consider all of the

relevant mitigating evidence a defendant

might present in imposing sentence.” 109

S.Ct. at 2945. Penry’s claim rested on the

clearly established and specific Constitu-

tional rule that “a State could not, consist-

ent with the Eighth and Fourteenth

Amendments, prevent the sentencer from

considering and giving effect to evidence

relevant to the defendant's background or

character or to the offense that mitigates

against imposing the death penalty.” Jus-

tice O'Connor concluded that the path from

Jurek to Penry involved the consistent ap-

plication of an established constitutional

rule to, in essence, changes in the facts.

Because of these disagreements about

the meaning of the Teague test, the Court's

opinions in Teague and Penry do not imme-

diately yield a clearly articulable definition

of a “new rule.” We must interpret what

Justice O'Connor has said by reference to

A- 18

=a

SAWYER v. BUTLER “5546

the purposes served by the Teague rule.

To undertake that inquiry, we first turn to

the complex of concerns now accommodat-

ed within federal habeas jurisprudence.

(14) A federal court's role in a habeas

attack on a state court conviction is only to

review for errors of constitutional magni-

tude. The Constitution commands us to

defer to federalism, and so recognizes that

the solemn judgment of a state's highest

court enjoys a presumption of validity,

which may be overcome only for failure to

abide the Constitution itself. The role that

remains for federal courts is by no means

modest. To the contrary, viewed over the

full span of history, it is rather an extraor-

dinary reach for superintending power. In-

deed, the first legislation empowering fed-

eral courts to issue a writ for state custody

did not come until the Habeas Act of 1867.

Until the Court's decision in Brown pv. Al-

len, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469

(1953), “federal courts would never consid-

er the merits of a constitutional claim

raised on habeas if the petitioner had a fair

opportunity to raise his arguments in the

original proceeding...."* Seen in this

light, casting our role as that of a constitu-

tional backstop is hardly a retrenchment,

and Teague's reach for finality is modest

indeed.

{15} Teague, whether applied to a capi-

tal sentence or to a more ordinary case, is

by no means a return to the law that

preceded Brown v. Allen, if indeed it is a

turn in that direction at all. Teague rather

reflects a distinct and basic judgment that,

putting aside the cases falling within its

two provisos, there is no fundamental un-

5. See Mackey v. United States, 401 US. 667,

684, 91 S.Ct. 1160, 1175, 28 L.Ed.2d 404

fairness inherent in refusing to wield feder-

al power to upset state court convictions

and sentences of death arrived at in com-

plete conformity to constitutional standards

in place when the convictions became final.

Due regard for the constitutional structure

of federalism, and the protection it accords

to state government, counsels the oppo-

site—that only preservation of constitution-

al principles justifies the intrusion.

{16] The Teague judgment about the

federal role acknowledges that neither fi-

nality nor federalism will condone constitu-

tional acquiescence in the conviction of per-

sons factually innocent of the crime

charged. Our efforts to reduce the risk of

convicting an innocent person are evi-

denced by myriad procedural safeguards

and by high requirements of proof. These

restrictions reflect a commitment to accu-

rate outcomes so firm that we consciously

increase the chance of acquitting guilty

persons to reduce the chance of convicting

the innocent. It is not surprising, then,

that the Supreme Court is fairly unanimous

in its view that a state court prisoner can

rely upon a fundamental constitutional rule

implicating factual innocence even though

that rule was not announced until after his

conviction became final.

It might nonetheless be contended that

the Court's “factual innocence” proviso is

not enough to vindicate the rights of pris-

oners, and that capital cases show particu-

larly well various considerations that com-

pel a narrow formulation of Teague's

“new rule” element. One reasoning along

these lines might point to the inherent fi-

nality of the death penalty, and contend

that the benefit of every announced consti-

(1971) (Harlan, J., concurring).

A- 19

5547 SAWYER v. BUTLER

fear that it will have to relitigate issues of

innocence and gui't on the basis of stale

evidence, and so run the risk of freeing a

criminal who would have been convicted by

a fair and timely trial. Finally, continuing

to reason against finality interests on the

basis of concerns unique to death cases,

one might argue that in such cases there is

no danger that the state's efforts at reha-

bilitation will lose their focus because of

the habeas process; that habeas petitioners

succeed more frequently in capital cases

than in other cases; and that other factors,

external to the habeas system, are respon-

sible for delays in the execution of state

prisoners.

Yet unless we suppose a perfectly stable

constitutional jurisprudence, it is unclear

how finality could ever be achieved if these

arguments are accepted at full reach. As

the Court made clear in Penry, the order of

magnitude of punishment is not relevant to

Teague 's support of finality so long as ve

except rules implicating factual innocence.

The “death is different” argument in this

context is little more than an argument

against the validity of the punishment it-

self. As an argument directed to the pur-

poses of Teague—the matter now before

us—it fails.

Of course, the penalty is different from

all others in many respects. We recognize

that it is the extreme of punishments when

we reserve the punishment for the most

extreme of crimes, as we do under our

present law. Death sentences, which by

their nature aim at retribution or deter-

rence and not at renabilitation, obviously

do implicate different state purposes than

do terms of incarceration. But that the

interests are different does not imply that

they are less deserving of federal defer-

ence, or that comity concerns are any less

important. A state policy predicated upon

the certainty of exact retribution, no less

than a state policy predicated upon incar-

ceration in a facility designed in part to

rehabilitate, suffers when the prospect of

punishment is confused by a series of col-

lateral federal attacks.

Indeed, much that is unique about the

law controlling death cases is in fact a

powerful testament to the need for the

finality-serving rules of Teague. The con-

stitutionally secured rules announced for

death cases by the Supreme Court since

McGautha v. California, 402 US. 183, 91

S.Ct. 1454, 28 L.Ed.2d 711 (1971), have

come in such number and with such rapidi-

ty that the entire jurisprudence is fairly

described as being in a state of flux. Dur-

ing the ten year period ending with the

final day of the Supreme Court's 1988

term, it granted plenary review in sixty-

seven cases and at least thirty-five of those

can, with little dissent, be described as

presenting issues of substantial reach.

The destabilizing impact of such a sea-

change in controlling law presents prob-

lems of administration unique to death

cases. In the 1986 term alone, the Su-

preme Court acted on eighty requests for

stay of execution. This undermines the

argument that Teague has no application to

death cases.

Nor is there anything inhumane in an

insistence that a death-sentenced state pris-

oner confine his attack upon that sentence

to the rules in effect when his conviction

became final. So long as nothing new im-

plicates the petitioner's factual innocence,

we, confronted with the need for sureness

A - 20

=

SAWYER ». BUTLER |)

of punishment as contrasted with the never

ending uncertainty and serendipitous state

of a nigh open set of rules, see little to

persuade us that respect for human dignity

counsels against application of finality

rules.

{17} In light of the powerful reasons

that justify the Teague doctrine, we see no

cause to limit its application to the rare or

extraordinary case. When a rule is indeed

dictated by precedent—a word Justice

O'Connor took care to emphasize in Penry

as she did in Teague—then a state can

reasonably be asked to anticipate its articu-

lation, and enforcing the rule in a habeas

proceeding will not intrude upon the state's

legitimate interest in the finality of conviec-

tions. Otherwise, however, Teague must

bar the rule's application. We do not, de-

spite Justice Scalia's strong words in dis-

sent, read Penry to the contrary. Instead,

we believe that Justice O'Connor regarded

Penry as a special case, one simply reap-

plying the rule of Jurek v. Teras, 428 US.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) to

a unique development in state law. See

Penry, 109 S.Ct. at 2945 (Opinion of O'Con-

nor, J., Part II-B, discussing Jurek). Jus-

tice O'Connor honored the language of the

Teague opinion, and we must assume she

intended to honor its spirit as well.

Sawyer correctly observes that many

state courts, including Louisiana, had be-

fore Caldwell developed common law rules

forbidding misleading jury argument about

the importance of the jury's decision. See,

e.g., Pait v. State, 112 So.2d 380, 383-84

(Fla.1959); Blackwell v. State, 76 Fla. 124,

79 So. 731, 731, 735-736 (1918); Wiley v.

State, 449 So.2d 756, 762 (Miss.1984);

State v. Jones, 296 N.C. 495, 251 S.E.2d

425, 427-29 (1979); State v. Gilbert, 273

S.C. 690, 258 S.E.2d 890, 894 (1979); Hawes

v. State, 240 Ga. 327, 240 S.E.2d 833, 839

(1977); People v. Morse, 60 Cal.2d 631, 36

Cal. Rptr. 201, 211-212, 388 P.2d 33, 43-44

(1964); State v. Mount, 30 NJ. 195, 152

A 2d 343, 351-52 (1959), People v. Johr-

son, 284 N.Y. 182, 30 NE.2d 465, 467

(1940). For example, the Louisiana Su-

preme Court ordered a new sentencing

hearing in a 1982 capital case when. with-

out objection, the prosecutor argued to the

jury that the “buck” started with them and

will more than likely be reviewed by every

appeals court in the United States. State

v. Willie, 410 So.2d 1019, 1034-35 (La.

1982). But it does not necessarily follow

from the circumstance that Louisiana law

forbade the argument made by Sawyer's

prosecutor when it was made, that the Su-

preme Court did not announce a ‘‘rew” rule

in Caldwell.

Sawyer's argument fails to deal with

Teague 's explicit offer of Ford v. Wain-

wright, 477 US. 399, 106 S.Ct. 2595, 91

L.Ed.2d 335 (i986), as an example of a

decision that created a “new rule.” Ford

held that the Eighth Amendment prohibits

states from inflicting the penalty of death

on an insane prisoner. Execution of the

insane was prohibited at common law. In-

deed, the Ford Court observed that “{tjhe

bar against executing a prisoner who has

lost his sanity bears impressive historical

credentials _.." 477 US. at 406, 106 S.Ct

at 2600. Moreover, twenty-six states of

the forty-one with a death penalty had

“statutes explicitly requiring the suspen-

sion of the execution of a prisoner who

meets the legal test for incompetence.” /d.

at 408, n. 2, 106 S.Ct. at 2601, n. 2. Saw-

yer's reliance upon Caldwell's common

law roots and its relationship to the rules

A- 21

5549 SAWYER v. BUTLER

nounces a new rule when it breaks new

rule if the result was not dictated by prece-

dent existing at the time the defendant's

conviction became final.” Teague, 109

S.Ct. at 1070 (emphasis in original). Ac-

cord, Penry, 109 S.Ct. at 2944. We have

little difficulty in concluding that so mea-

sured, Caldwell 's greatly heightened into

lerance of misleading jury argument is a

new rule within the meaning of Teague.

Its direct impact upon the finality of state

convictions is illustrated by this case.

Sawyer, however, nonetheless contends

that this heightened standard for review of

prosecutorial argument does not create a

new rule. He has two arguments. First,

Sawyer says that Louisiana not only con-

demned Caldwell-type prosecutorial argu-

ment, but did so under an Eighth Amend-

ment standard identical to the Caldwell

standard. For this proposition, Sawyer

cites a string of Louisiana cases explaining

that Louisiana's death penalty procedures

were designed to comply with the Supreme

Court's Eighth Amendment decisions, see,

¢.g., State v. Payton, 361 So.2d 866, 870-73

(La. 1978), State vr. Sonnier, 379 So.2d 1336,

1370 (La.1980), and State v. Willie, 410

Se 2d 1019, 1032-33 (La.1982), and another

string of Louisiana cases condemning

Caldwelltype prosecutorial arguments,

see. e.g. State v. Berry, 391 So.2d 406, 418

(La.1980), cert. denied, 451 US. 1010, 101

S.Ct. 2347, 68 L.Ed.2d 863 (1981); Willie,

410 So.2d at 1034-35, and State v. Robin-

son, 421 So.2d 229, 231-34 (La.1982).

Yet it is one thing to say that a state,

inspired by earlier constitutional decisions,

had anticipated Caldwell as a matter of

state law, and a very different matter to

say that the state had recognized a Cald-

well-type rule as a constitutional restriction

on its own power. In an effort to bring the

Louisiana cases within the latter category,

Sawyer relies heavily om the Louisiana Su-

preme Court's recent post-Caldwell deci-

sion in State er rel. Busby v. Butler, 538

So.2d 164, 173 (La 1988). There, the Louisi-

ana Court said it need not consider a Cald-

well claim on collateral attack after reject-

ing a similar state law challenge on direct

review, for Caldwell “did not change our

previous case law.” Again, however, this

statement and the other remarks in Busby

indicate only that the state law and Cald-

well rules are coincident. The remarks do

not show that Louisiana law condemned

Caldwell argument because it regarded

such argument as an Eighth Amendment

violation. We therefore need not decide

whether, if a rule is “new” as a matter of

constitutional interpretation but not “new”

A - 22

SAWYER v.

in state interpretations of the federal Con-

stitution, it is nonetheless “new” for pur-

poses of the Teague bar upon collateral

federal challenges to state convictions.

Sawyer next contends that this Circuit in

Moore v. Blackburn, 774 F.2d 97, 98 (5th

Cir.1985), cert. denied, — US. -—, 106

S.Ct. 2904, 90 L.Ed.2d 990 (1986), has al-

ready decided that Caldwell is not a new

rule. In Moore, we held that even if the

Caldwell standard were separable from the

Louisiana state standard for ——

prosecutorial argument, petitioner

should have anticipated in an earlier habeas

petition the possibility of a distinct consti

ivtionsl standard. We therefore held that

Moore's Caldwell argument was not “new”

for purposes of the writ abuse doctrine,

and stated that the doctrine would bar the

argument. Sawyer’s attempt to rely on

Moore must fail, for the meaning of “new-

ness” differs in writ abuse cases from its

meaning in Teague cases. In writ abuse

cases, the key question is whether a partic-

ular argument is being made by attorneys:

the argument is not “new” if it is being

made, and so should be known to attor-

neys. The Supreme Court makes clear,

however that a rule is new for purposes of

Teague if it has not been accepted at the

time the petitioner's conviction became fi-

nal. Teague, 109 S.Ct. at 1070. Moore

thus cannot bear the freight Sawyer would

put on it.

Cc

The Teague test allows two exceptions.

Sawyer, however, cannot contend that the

sentence imposed upon him was unlawful

because the conduct for which he was

charged is constitutionally privileged, or

that he is among a class of persons protect-

ed aguinst execution. He contends only

BUTLER 5558

authority, therefore does not apply.

We turn, then, to the plurality’s insis-

tence in Teague that a new rule may be

relied upon by a habeas petitioner if it both

“requires the observance of those proce-

dures that ... are implicit in the concept of

ordered liberty” and “procedures without

which the likelihood of an accurate convie-

tion is seriously diminished.” Sawyer con-

tends that we should not in his case apply

the “accurate conviction” qualification to

view. The Penry opinions did not discuss

the “fundamental to ordered liberty” prov

so, or the “actual innocence” qualification

to it. However, Justice White's joinder in

Justice Sealia’s dissent, and in Part II-A of

Justice O'Connor's opinion (which referenc-

es the Teague plurality’s formulation of the

exceptions). strongly suggests that Justice

White has adopted the position of the Teag-

ue plurality. In any event, our short av

swer is that pending further direction from

the Supreme Court, and in particular the

full view of Justice White, we should follow

the course set by the plurality as best we

can.

{19} Second, Sawyer argues that confin-

ing use of new rules to those implicating

factual innocence has no relevance to a

jury's decision to impose a death and noi a

life sentence. We are not persuaded A

habeas petitioner may not escape this limr

tation on use of a new rule by confining his

attack to the jury's decision to impose a

death rather than life sentence. Rather,

such a petitioner must show that the new

rule insists on procedures without which

5551 SAWYER v.

While the Court has made plain that it

expects to encounter few new!, discovered

bedrock procedural rules, it is not clear

how Caldwell, with its condemnation of a

particular type of jury argument, fits into

the Teague scheme. This difficulty stems

in part from uncertainty about Teague 's

standard for sorting the bedrock from the

host of other rules calculated to enhance

the efficiency and fairness of a trial We

is informed by developed principles of in-

corporation doctrine that leave the states

BUTLER

free of all but the core assurances, various-

ly expressed as rejecting “tail with the

hide” and “jot-for-jot” incorporation. Sve

eg. Duncan v. Louisiana, 391 US. 145.

181, 88 S.Ct. 1444, 1465, 20 L.Ed2d 491

(1968) (Harlan, J, dissenting). For exam-

ple, the Fourteenth Amendment requires

Louisiana to provide Sawyer a jury and a

fundamentally fair trial. Louisiana has

wide latitude in its choice of procedures for

doing so and few procedures are so essen-

tial as to be required by the Fourteenth

Amendment. This distinction is reflected

in our willingness to find errors to be

harmless and our refusal to grant relief

absent a demonstration not only that the

rule was v.. lated but also that its violation

rendered a trial fundamentally unfair.

Caldwell manifestly implicates two prin-

ciples that would be fundamental in the

sense required by Teague 's second proviso.

The first is Donnelly 's restriction requir-

ing that a proceeding not be “fundamental-

ly unfair” to the defendant. The second is

the more expansive regard for jury discre-

tion suggested by McGautha, a regard

trimmed back, as we have mention~4, by

the Court's later interpretations of the

Eighth Amendment. Were Sawyer seeking

to rely on either of these principles as new

rules, his argument would be compelling.

Yet Donnelly's principle is not new by

comparison to Sawyer's conviction, and

McGautha's general themes do not consti-

tute a rule at all Whai Sawyer seeks to

rely upon is Caldwell's modification of

Donnelly in light of the ideals discussed in

McGautha. That modification is not itself

so fundamental as to be “implicit in the

concept of ordered liberty.” After all, the

only defendants who need to rely on Cald-

well rather than Donnelly are those who

must concede that the prosecutorial argu-

ment in their case was not so harmful as to

A- 26

—— a.

SAWYER v. BUTLER 5552

render their sentencing trial “fundamental-

ly unfair.”

A recent decision of the Supreme Court

supplies additional guidance for our in-

quiry. In Dugger vr. Adams, the Court

decided whether Florida's procedural de-

fault rule barred Adams's Caldwell claim.

To resolve that issue, the Court had to

determine whether a “fundamental miscar-

riage of justice” would result if the proce-

dural default rule were permitted to defeat

Adams's Caldwell claim. The Court held

that no such miscarriage of justice would

arise.

In reaching its conclusion, the Adams

Court wrote as follows:

The dissent “assumes arguendo” that

a fundamental miscarriage of justice re-

sults whenever “there is a substantial

claim that the constitutional violation u

dermined the accuracy of the sentencing

decision.” _.. According to the dissent,

since “the very essence of a Caldwell

claim is that the accuracy of the sentenc-

ing determination has been unconstitu-

tionally undermined,” .._ the standard

for showing a fundamental miscarriage

of justice is necessarily satisfied We

reject this overbroad view. Demonstrat-

ing that an error is by its nature the kind

of error that might have affected the

accuracy of a death sentence is far from

demonstrating that an individual defen.

dant probably is “actually innocent” of

the sentence he or she received. The

approach taken by the dissent would turn

the case in which an error results in a

fundamental miscarriage of justice, the

“extraordinary case,” _.. into an all too

ordinary one.

109 S.Ct. at 1217-18 & n. 6.

Adams, of course, does not directly con-

trol Teague's application to a Caldwell

A-é

claim. Adams applies a “fundamental mis-

carriage of justice” standard to determine

whether a Caldwell claim might fit within

an exception to the procedura: default rule

Teague applies an “implicit in the concept

of ordered liberty” and “implicating factual

imnocence” standard to determine whether

a Caldwell claim might fit within an excep-

tion to the doctrine barring habeas petiticn-

ers from relying on new rules. The verbal

formulae are different, and their applica.

tion thus might differ, too. Moreover, the

Adams miscarriage standard requires scru-

tiny of the facts of a particular case, while

the Teague ordered liberty standard looks

to the character of the general rule assert-

ed.

Nonetheless, we must take care not to

exaggerate the substantive import of these

semantic differences. Similar concerns un-

derlie both the procedural default doctrine

and the Teague doctrine prohibiting re-

liance upon new rules. Both doctrines rec-

ognize the importance of finality in crimi-

nal convictions. Both doctrines promote

federal-state comity by requiring federal

courts to defer to the integrity of state

convictions. And both doctrines put a pre

mium upon the obligation of defendants to

raise all relevant arguments before their

convictions become final. Indeed. in some

respects Teague functions as a radical ex-

tension of the procedural default rule by

forcing defendants to establish a new rule

on direct appeal, rather than on collateral

attack, if they wish to rely on such a rule

Because of the similarities between the two

doctrines, it is diffieult to see why a Cald.

well violation should be sufficiently funda.

mental to require an exception to the ‘new

rule” doctrine, but not so fundamental as

to require an exception to the procedural

default doctrine

5553 SAWYER v. BUTLER

Adams is also important for another rea-

son: given the particular facts of Adams's

own case, the Court's disposition of the

case presupposes a judgment about the im-

portance of Caldwell error to a sentencing

determination. In Adams, as the Court

noted, the trial judge “found an equal num-

ber of aggravating and mitigating circum-

stances.” The Court made clear that there

was no fundamental miscarriage of justice

even though Caldwell error goes to the

accuracy of the sentencing procedure, and

even though the case was a close one. In

short, the mere possibility of a close case

did not make the alleged error's threat to

accuracy sufficiently fundamental to war-

rant exemption from the procedural bar.

Sawyer's Caldwell claim runs into com-

parable problems when analyzed in light of

the second Teague proviso. Sawyer can

argue at mos( that there would be a possi-

bility, absent the alleged Caldwell viola-

tion, of a different outcome to the jury's

sentencing procedure. Yet, as we have

already stated, the Court's Teague opinion

makes quite clear that not every procedural

rule affecting the accuracy of a trial will fit

within the “ordered liberty” proviso. To

hold otherwise would be to cling to “jot -for-

jot” or “tail-with-the-hide” incorporation,

and to make the “extraordinary case into

the ordinary one.” Instead, the examples

listed by the Teague Court—trial by mob

rule, use of perjured testimony, or the ex-

traction of confessions through brutal tor-

ture—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. Saw-

yer's Caldwell claim has neither the over-

whelming influence upon accuracy nor the

intimate connection with factual innocence

demanded by the second Teague proviso.

Our extended exposition of the nature of

Caldwell error reinforces the inferences

we draw from the Supreme Court's deci-

sion in Adams. Caldwell error does in-

deed implicate core aspects of the sentenc-

ing procedure. As such, it implicates both

the integrity of that procedure and the

accuracy of the determination in any partie-

ular case. Yet to say that accuracy is

implicated is not to say that the defendant

is necessarily prejudiced. In fact, Cald-

well's deference to the fundamental char-

acter of the jury's role manifests itself

Precisely in its refusal to require actual

prejudice to the defendant. 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 sen-

tencing proceeding. It is, of course, un-

usual to presume the existence of reversi-

ble error, on the basis of the prosecutor's

comments, absent any showing of preju-

dice. This presumption is an important

one, and, we would hope, will contribute to

the increased integrity and accuracy of

criminal procedure in this sensitive area.

But none of this makes Caldwell so funda-

mental, or so connected with factual inno-

cence, as to fit within Teague's second

proviso.

vi

{20} Of course, if Sawyer were able to

show actual prejudice, he would be able to

proceed under the more general fundamen-

tal fairness standard of Donnelly v. De-

Christoforo. Yet Sawyer has not contend.

ed that such prejudice exists here, and we,

A- 26

SAWYER v. BUTLER 5554

after a thorough review of the record, can

find none.

We have covered considerable ground

about the content of the Caldwell rule.

Yet, the dissent falls silent on this set of

issues, perhaps because the posture of the

case does not require that we apply Cald-

well. It is then only on narrow, but crucial

grounds, that our opinion is engaged, and

to assist its focus we conclude with one

observation in reply to the dissenting view.

Judicial tradition demands that new rules

find their trace in older ones. This search

is near the core of discipline that distin-

guishes judges from other decision makers.

Judges excel at the task. Such artisans

possess a very important tool—a gauge of

generality. It is no surprise then that

Teague 's effort to limit federal habeas by

asking whether a rule is new invites those

who resist the restriction to reach for their

tool kit. At a sufficient level of abstraction

there are no new rules. The judicial arti-

san can start by asserting that the old rule

is that a trial must be fundamentally fair,

that a defendant is entitled to procedural

due process. Stated this generally there

have been few if any new rules for the trial

of criminal cases.

The dissent does precisely this, resting

its assertions on little more than that the

old rule is the prohibition of unfair jury

argument. Its old law is unnarrowed by

any definition of its reach and force such

as whether it treats such state conduct as

inherently destructive of required fairness

or insists on demonstrated prejudice in a

given case. Louisiana rejected Sawyer's

claim and Sawyer has no federal habeas

claim without Caldwell. Nonetheless, we

are told that Caldwell was dictated by

precedent, that it broke no new ground and

that it imposed no new obligation on the

states. We are asked to believe that Cald-

well simply applied well established consti-

tutional principles. If to the uninitiated

this is dissemblance, unhappily it is to the

cognoscenti business as usual. By adroit

use of the generality gauge our able dis-

senting colleagues can breathe superficial

credibility into the fable that Caldwell

broke no new ground, imposed no new obli-

gation on the states and was dictated by

precedent. With all deference, there is

afoot here no more than a resistance to the

principles of finality adopted by Teague.

We should not play such sophistical games.

The issue here is whether the federal judi-

ciary will take hold of the open ended char-

acter of the habeas remedy it has created.

We are persuaded that little or nothing is

left of Teague's promise if the dissent's

view is accepted. We think that this arti-

san's destruction of so recent a decision by

the Supreme Court should be rejected and

we do so. Ultimately only Teague's au-

thors can tell us if they meant what they

said or if they have changed their minds.

For these reasons, we find that Teaque

bars Sawyer from pursuing his Caldu eli

claim. We affirm the district court's deci-

sion denying Sawyer's petition for a writ of

habeas corpus.

KING, Circuit Judge, with whom

REAVLEY, POLITZ, JOHNSON, and

WILLIAMS, Circuit Judges, join

dissenting:

Sawyer has been found guilty of capital

murder. He doves not contest his guilt.

The only issue before the en banc court is

whether he is entitled to have a properly

instructed jury determine that he should be

executed by the State or spend the rest of

his life in jail, without the benefit of proba-

A - 27

5555 SAWYER v. BUTLER

a ee _

SAWYER v. BUTLER 5556

tion or parole!’ Whatever we decide, he well. The Prosecutor, in describing the

will not be set free.

The majority has rejected the interpreta-

tion of Caldwell r. Mississippi? on which

the State relied in urging that we deny

Sawyer's petition for habeas relief. The

majority concludes, however, that the State

may execute Sawyer, regardless of the

merits of his Caldwe!! claim, because Cald-

well established a “new rule” in constitu-

tional law and, under the Supreme Court's

recent decision in Teague v. Lane? Sawyer

may not receive the benefit of its applica-

tion because his conviction became final

before Caldwell was decided.

If, as the majority admits, “it is not clear

how Caldwell _.. fits into the Teague

scheme” because of the “newness of the

amalgam” of standards Teague set on “un-

certain precedential footing,” we do not see

why it is incumbent on us to condemn

Sawyer to die instead of ordering the State

to put the life-or-death issue to a jury that

is not only not misled but is fully informed

of its responsibilities. In contrast to the

majority's ambivalence, we harbor no doubt

that Sawyer is entitled to the constitutional

protections guaranteed by the eighth

amendment: Caldwell! did not establish a

“new rule,” and even if it did, Teague

requires its retroactive application. We,

therefore, respectfully dissent.

I.

Although the majority opinion contains a

lengthy exegesis on the role of the jury and

the nature of Caldwell error, it does not

reach the merits of Sawyer's claim. We

would find that on the facts of Sawyer's

case, his sentence is invalid under Cald.

1. See La.Rev Stat.Ann. 14:30(C) (1980).

2 472 US. 320, 105 S.C. 2633, 86 L.Ed.2d 231

(1985).

jury's role, remarked:

The law provides that if you find one of

these circumstances then what you are

doing as a juror, 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 evidence you have heard in

relationship to this man's conduct are of

the opinion that there are aggravating

circumstances as defined by the stat-

ute, by the State Legislature that this is

the type of crime that deserves that

penalty. It is merely a recommenda-

tion so try as he may, if Mr. Weidner

tells you that each and every one of you

I hope you can live with your conscience

and try and play upon your emotions,

you cannot deny, it is a difficult decision.

No one likes to make those [sic] type of

decision but you have to realize if but for

this man’s actions, but for the type of

life that he has decided to live, if of his

own free choosing, | wouldn't be here

presenting evidence and making argu-

ment to you. You wouldn't have to

make the decision (emphasis supplied).

The prosecutor went on to describe the

brutal nature of the crime and, briefly, its

impact on the victim and her mother.

Then, once again turning to the function of

the jury, the prosecutor stated:

There is really not a whole lot that can

be said at this point in time that hasn't

3. — US. —, 109 S.Ct. 1060, 103 L.Ed.2d

334 (1989)

A - 28

already been said and done. The deci-

sion is in your hands. You are the peo-

ple that are going to take the initial

step and only the initial 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 peo-

ple 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 impact

of the law of Louisiana. A/i you are

saying is that this man from his ac-

tions could be prosecuted to the fullest

ertent of the law. No more and no Wes

(emphasis supplied).

Finally, after arguing that a death penalty

would be justified in this case, the prosecu-

tor noted:

It's all your doing. Don't feel otherwise.

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

is very easy 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 to say

you are wrong so | ask that you do have

the courage of your convictions (empha-

Sis supplied).

The prosecutor's arguments in Sawyer's

case fall squarely within Ca/dweil‘s prohi-

bition of misleading and inaccurate argu-

ments regarding appellate review (hat seek

to diminish the jury's sense of its responsi-

bil nn capital sentencing. The trial court

4. See Caldwell, 472 US. at 341, 105 S.Ct. at

2646.

S. Id, — US. at —, 109 S.Ct. at 1070

(O'Connor, J., plurality opini (emph

in original) (citations omitted).

did not correct these statements, and be-

cause we cannot say that these comments

had no effect on the jury's decision, we

would vacate Sawyer's sentence and grant

him a new sentencing hearing.‘

Whether Sawyer may receive the benefit

of the constitutional protection enunciated

in Caldwell depends, however, on the

threshold determination that Caldwell es-

tablished a “new rule.” Conceding that

“litt is ... often difficult to determine

when a case announces a new rule,” the

plurality in Teague nevertheless offered

the following explanation: “In general .

a case announces a new rule when it

breaks new ground or imposes a new obli-

gation on the States or the Federal Govern-

ment.... To put it differently, a case an-

nounces a new rule if the result is not

dictated by precedent existing at the time

the defendant's conviction became final.” 5

The plurality recognized that constitu-

tional rules will fall along a “spectrum” —

from those that fit neatly within the rubric

of settled law to those that constitute a

clear break from prior precedent—but pro-

vided little additional guidance for deter-

mining at which point a rule is not “dictat-

ed” by precedent and, therefore, “new” for

retroactivity purposes.

In Penry v. Lynaugh,’ however, the

Court began to elaborate the meaning of

the term “new rule.” The Court held that

although it had previously found the Texas

6 See ibid.

7% — US. —, 109 S.Ct. 2934, — L.Ed.2d

—— (1989).

A - 29

5557 SAWYER v. BUTLER

sentencing scheme facially valid." the

scheme, as applied to Penry, unconstitu-

tonally limited the jury's ability to consider

certain, relevant mitigating evidence® The

constitute a “new rule” given the require-

ment that capital sentencing procedures

permit the sentencing jury to consider and

give effect to all relevant mitigating evi-

dence."*

The Court reasoned that a rule is not

“new” for purposes of retroactivity analy-

sis when it “fulfill[s) the assurance” upon

which a previous case “was based,” or

merely “interpret{s] broadly” that previous

case."' The Court thus made clear that its

“dictated by precedent” language was not

intended to categorize as “new” every rule

that does not fit precisely within the pat-

tern of a previously decided case. Rather,

the Court recognized that the process of

constitutional interpretation routinely re-

quires courts to articulate extant law and

apply established principles of law to dif.

ferent facts and in different contexts.

Rules that are the product of this gradual

process of refining and developing doctrine

are not “new.” To define “new” fules

more broadly would depart significantly

from the traditional understanding of con-

8. See Jurek v. Texas, 428 US. 262, 9% ©.Ct.

2950, 49 L.Ed.2d 929 (1976)

9. Penry, — US. at —, 109 S.Ct. at 2951.

10. Jd. at ——_—___, 109 S.C. at 2943-47; see

Lockett v. Ohio, 438 US. $86, 98 S.Ct. 2954.

$7 L.Ed.2d 973 (1978); Eddings v. Okla-

homa, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d

1 (1982).

1. Penry, — US. at —~, 109 S.Ct. at 2045

12. See Yates v. Aiken, 484 US. 211, ——, 108

S.Ct. 534, 538, 98 L.Ed. 2d $46 (1988): Trues-

dale v. Aiken, 480 U.S. $27, 107 S.Ct. 1394, 94

L.Ed.2d 539 (1987); Griffith v. Kentucky, 479

US. 314, 323, 107 S.Ct. 708, 714, 93 L.Ed 2d

649 (1987): Allen v Hardy, 478 US. 255, 258,

106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986);

stitutional jurisprudence as an evolving

body of principles rather than jarring ser-

tes of revolutionary pronouncements '?

This differentiation between elaborating

and applying established principles, on the

one hand, and announcing new rules that

ings are altered slowly and subtly as gener-

ation succeeds generation.” He rea-

soned that such rules are not “new” and

should be given retroactive application in

habeas proceedings because “one could

never say with any assurance that this

Court would have ruled differently at the

time the petitioner's conviction became fi-

nal.” "*

Caldwell held that a prosecutor may not

“le{ajd” a jury to “believe” that it is not

“responsib{le) for determining the appro-

priateness of [a] defendant's death.” '

The Court based this rule upon its belief

Shea v. Louisiana, 470 US. $1, $7, 105 S.Ct.

1065, 1068, 84 L.Ed.2d 38 (1985); United

States v. Johnson, 457 US. $37, 549-50, 102

S.Ct. 2579, 2586-87, 73 L.Ed.2d 202 (1982);

Solem v. Stumes, 465 U.S. 638, 662, 104 S.Ct.

1338, 1352, 79 L.Ed.2d 579 (1984) (Stevens,

J., dissenting); see also Schwartz, Retroactiv-

13. Desist v. United States, 394 US. 244, 263,

89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969)

(Harlan, J., dissenting).

14. Jd at 264, 89 S.Ct. at 1041.

1S. Caldwell, 472 US. at 329, 105 S.Ct. at

2639

SAWYER v. BUTLER 5558

Eighth Amendment's heightened ‘need for

reliability’ in capital sentencing, and that

such conduct, “if left uncorrected, might so

affect the fundamental fairness of the sen-

aged ... would deprive (the defendant}

of ... [the] right to a fair determination

of the appropriateness of his death __,

for an appellate court, unlike a capital

sentencing jury, is wholly ill-suited to

evaluate the appropriateness of death in

a jury might consider in its sentencing

determination, few can be gleaned from

an appellate record. This inability to

confront and examine the individuality of

the defendant would be particularly dev-

astating to any argument for considera-

tion of what this Court has termed

16. /d. at 340, 105 S.Ct. at 2645 (footnote omit-

ted) ( ing Woodson v. North Carolina, 428

US. 2 . 96 S.Ct. 2978, 2991, 49 L.Ed.2d

944 (1976) (Stewart, J., plurality opinion));

see v 416 US. 637,

643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431

(1974).

17. Caldwell, 472 U.S. at 330, 105 S.Ct. at 2640

(quoting Woodson, 428 U.S. at 304, 96 S.Ct.

at 2991 (Stewart, J., plurality opinion)).

18. 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972).

19. 428 U.S. 153, 96 S.Ct. 2909, 49 L_Ed.2d 859

(1976).

20. Gregg, 428 US. at 188, 96 S.Ct. at 2932

(Stewart, J., plurality opinion) (citing Fur-

man, 408 US. at 310, 92 S.Ct. at 2763 (Stew-

art, J., concurring)).

21. 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49

L.Ed.2d 944 (1978) (Stewart, J., plurality

opinion).

“(those) compassionate or mitigating

factors stemming from the diverse frail-

ties of humankind.” '”

Far from articulating an unanticipated

principle of law or breaking with a past

understanding of the law, Caldwell inter-

preted and followed directly the Court's

own eighth amendment jurisprudence. The

Caldwell Court fulfilled the assurance

enunciated in Furman v. Georgia" and

Gregg v. Georgia ® that capital punishment

not be administered “wantonly” or “freak-

ishly” or in an “arbitrary and capricious

manner;” ** it applied the “need for reliabil-

ity in the determination that death is the

appropriate punishment in a specific case,”

assured in Woodson v. North Carolina,”

Lockett v. Ohio,™ and Eddings v. Okla-

homa,™ to a situation in which that reliabil-

ity was compromised; it fulfilled the prom-

ise of Woodson, Lockett, and Eddings that

a defendant be sentenced to death only

after an individualized determination of his

moral culpability; * and it applied the need

first articulated in McGautha v. Califor.

nia ® that jurors be “confronted with the

truly awesome responsibility of decreeing

22. 438 US. 586, 604, 98 S.Ct. 2954, 2964-65,

57 L.Ed.2d 973 (1978) (Burger, CJ., plurality

opinion).

23) «455 US. 104, 113-14, 102 S.Ct. 869, 876-

77, 71 L.Ed.2d 1 (1982).

24. See Woodson, 428 US. at 305, % S.Ct. at

2991 (Stewart, J., plurality opinion); Lockett,

438 U.S. at 601-05, 98 S.Ct. at 2963-65 (Burg.

er, CJ., plurality opinion); Eddings, 455 U.S.

at 112-15, 102 S.Ct. at 875-77: see also Stan.

ford v. Kentucky, — US. ——, 109 S.Ct.

2969, — L.Ed.2¥d —— (1989) (O'Connor, J.,

concurring); South Carolina v. Gathers, —

US. -—, 109 S.Ct. 2207, 104 L.Ed.2d 876

(1989).

2S. 402 US. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711

(1971).

A- 31

i ec cea at a ae

5559 SAWYER v. BUTLER

death for a fellow human” * to a case in

which the prosecutor specifically instructed

the jury that it had no such responsibility.

With due respect to the three dissenters in

Caldwell, it is difficult to imagine the

Court reaching any other conclusion given

these precedents.

There was, moreover, no precedent incon-

sistent or dissonant with Caldwell at the

time it was decided. While the Court, in

Donnelly v. DeChristoforo,” had imposed

a more stringent due-process test for

claims of improper argument made at the

guilt/innocence phase of trial, this analysis

applied neither to improper argument at

sentencing proceedings nor to argument

implicating “specific guarantees of the Bill

of Rights.” The Donnelly Court thus

left open the possibility that improper ar-

guments at sentencing not violative of the

Due Process Clause may be held to contra-

vene the eighth amendment's require-

ments.

Similarly, in California v. Ramos, ™ the

Court posited its approval of jury instruc-

tions containing information regarding

postconviction procedures on the fact that

the information was both relevant and ac-

curate.” While the Court in Ramos did

not address whether a prosecutor violates

the Constitution by presenting irrelevant

and misleading information concerning

post-conviction proceedings, its emphasis

on the nature of the instruction forecast

that such information would be found to

undermine the reliability of the sentencing

26. /d. at 208, 91 S.Ct. at 1467.

27. 416 U.S. 637, 94S.Ct. 1868, 40 L.Ed.2d 431

(1974).

28. /d. at 643, 94 S.Ct. at 1871

29. 463 US. 992, 103 S.Ct. 3446, 77 L.Ed.2d

process by injecting into it an arbitrary

factor in violation of the eighth amend-

ment.**

If, as the Court in Penry instructed, we

should consider a case “dictated by prece-

dent” and not “new” for retroactivity pur-

poses when it “fulfill{s} the assurance{s]”

of or “interpret{s] broadly” principles artic-

ulated in a previous case,” it is difficult to

see how the majority may conclude that

Caldwell announced a “new rule.” Cald-

well fulfilled the assurance of and inter-

preted faithfully the settled principle in

eighth amendment jurisprudence that a

verdict of death must rest upon the reliable

determination of a jury accurately in-

formed of its “awesome responsibility;” the

same line of eighth amendment cases that

compelled the result in Penry thus com-

pelled the result in Caldwell.

The majority contends that the foregoing

analysis unduly restricts the scope of Teag-

ue. Its criticism of our interpretive meth

od is misdirected, however, for the majori-

ty'’s dispute is not, in reality, with our

interpretation of Teague, but with Penry's

elaboration of the “new rule” standard set

forth in Teague. Indeed, the majority's

criticism of our analysis echoes precisely

Justice Scalia's dissent in Penry.™ In ad-

monishing us to wait for “Teague's au-

thors [to) ... tell us if they meant what

they said,” the majority ignores the fact

that Teague 's authors have already spoken

in Penry and have effectively rejected any

31. See Caldwell, 472 US. at 342-43, 105 S.Ct.

at 2646-47 (O'Connor, J., concurring in part

and concurring in the judgment) (citing Ra-

mos, 463 US. at 999, 1010, 103 S.Ct. at 3451,

3458).

1171 (1983). 32. Penry, — US. at ——. 109 S.Ct. at 2944.

30. fd. at 1004, 1009, 1012, 103 S.Ct. at 3455,

3457, 3459. 33. id. at ——, 109 S.Ct. at 2963.

)

A - 32

SAWYER v. BUTLER 5560

definition of a “new rule” that would

—_ broadly enough to encompass Cald-

If anything, Sawyer's claim that Cald-

well followed eighth amendment jurispru-

dence consistently is stronger than Penry's,

for no precedent like Jurek existed in the

Caldwell context to lead state courts to

reach a conclusion different from the Su-

preme Court's holding in Caldwell. In-

deed, the Court in Caldwell observed that

after Furman, several state supreme

courts—including Louisiana'’s—had antici-

pated Caldwell and found that Caid-

well-type errors undermined the validity of

a death sentence; ™ it noted that some state

At least five years before the Supreme

Court decided Caldwell, the Louisiana Su-

preme Court held that arguments that di-

luted the jury's sense of responsibility for

imposing a capital sentence injected an ar-

bitrary factor into the jury's decision and

invalidated the sentence. In 1980, when

denying an application for rehearing in

State v. Berry,™ the Louisiana Supreme

{any prosecutor who refers to appellate

review of the death sentence treads dan-

gerously in the area of reversible error.

If the reference conveys the message

M4. Caldwell, 472 US. at 333-34 & n. 4, 105

S.Ct. at 2642 & n. 4 (citing cases).

3S. Id. at 334 & n. S, 105 S.Ct. at 2642 & n. 5

(citing cases).

34. 391 So.2d 406 (La.1980) (denial of applica-

tion for rehearing), cert. denied, 451 US.

1010, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981).

37. Berry, 391 So.2d at 418 (emphasis in origi-

nal) (portions of text omitted); see id. at

419-21 (Calogero, J., dissenting from denial

that the jurors’ awesome responsibility is

lessened by the fact that their decision is

not the final one, ... then the defendant

has not had a fair trial in the sentencing

phase, and the penalty should be vacat-

ed.... The issue should be determined

in each individual case by viewing such a

reference to appellate review in the con-

text in which the remark was made.”

In 1982, in State v. Willie,™ the State

Supreme Court vacated a death sentence

and remanded for a new sentencing hear-

ing when the prosecutor referred to appel-

late review and told the jury that “the buck

really don’t [sic] stop with you. The buck

starts with you.... [Wyhat I'm asking

- you to do is start the buck rolling.” * The

court quoted Berry, and added:

This type of argument may not be made

in a criminal case in which the punish-

ment may be capital. Jurors should ap-

proach the task of finding facts and exer-

cising discretion as to choice of penalty

with appreciation that their duties are

serious and that they are accountable for

their decisions, not with the feeling that

they are making mere tentative determi-

nations which the courts can correct. An

argument improperly diminishes the

jury's duty and responsibility if it implies

that a reviewing court can substitute its

judgment as to choice of punishment or

that the decision of whether the sentence

of rehearing); State ex rel. Williams v.

Blackburn, 396 So.2d 1249, 1250 (La.1981)

(Dennis, J., dissenting from denial of stay);

id. at 1250 (Calogero, J., concurring in denial

of the stay); State v. Monroe, 397 So.2d 1258,

38. 410 So.2d 1019 (La.1982), cert. denied, 465

)~ “hee 104 S.Ct. 1327, 79 L.Ed.2d 723

39. Id. at 1034.

A - 33

5561 SAWYER v. BUTLER

of death is appropriate is not entirely the

jury's responsibility.”

In State v. Robinson," also in 1982, the

State Supreme Court vacated a death sen-

tence and remanded for a new sentencing

hearing because the prosecutor referred

repeatedly to the jury's sentence as a “rec-

ommendation” that did not have a “strong

possibility” of “get{ting) through all of

that [appellate] review.” Citing Berry

and Willie, the court anticipated the “no

effect” test required by the eighth amend-

ment, stating:

The closing argument requires that the

death sentence be set aside, because this

court cannot determine that misleading

and improper remarks of this magnitude

did not influence the jury's recommenda-

tion.... [W]e cannot say that the jury's

sentencing discretion was unaffected by

the prosecutor's repeated and often mis-

leading references to the largely irrele-

vant consideration of appellate review of

death sentences.”

As the Louisiana Supreme Court ob-

served, Caldwell neither imposed a new

obligation on prosecutors or courts nor

broke new ground in Louisiana.“ Before

the Supreme Court decided Caldwell, Loui-

siana had already prohibited Caldwell ar-

gument and required reversal of sentences

when it found such error. Moreover, in

finding that Caldwell argument injected an

arbitrary factor into the sentencing pro-

cess, the Louisiana courts relied on the

same eighth amendment principles that

4. Id. at 1035; see State v. Clark, 492 So.2d

862, 870-71 (La.1986).

41. 421 So.2d 229 (La.1982).

42. Id. at 231-33.

43. Jd. at 233-34 (portions of text omitted).

44. See State ex rel. Busby v. Butler, 538

So.2d 164, 173 (La.1988).

compelled the Supreme Court's decision in

Caldwell. In State v. Sonnier,® the Loui-

siana Supreme Court stated that under

Louisiana law, the court “is charged with

the responsibility of reviewing the jury's

recommendation to determine whether the

sentence was influenced by passion, preju-

dice or any arbitrary factor.” * The court

described how Louisiana modelled its provi-

sion for independent appellate review of

death sentences on the Georgia procedure

sanctioned in Gregg v. Georgia, and cited

approvingly the Georgia Supreme Court's

reversal of a death sentence when it found

that “an unobjected to argument by a

[prosecutor] may have influenced the jury

to impose a more severe sentence than

unbiased judgment would have given.” ”

In Willie, the court again adverted to

Gregg 's requirement that a sentencer’s dis-

cretion be channelled to avoid arbitrary and

capricious imposition of the death penalty,

and held that the prosecutor's improper

argument regarding appellate review ‘‘less-

ened” the jurors’ appreciation of their

“awesome responsibility” and “created a

reasonable possibility that the death sen-

tence was imposed under the influence of

passion, prejudice or arbitrary factors.” “

Echoing McGautha, the Louisiana Su-

preme Court thus anticipated almost exact-

ly Justice O'Connor's conclusion in Cald-

well that such arguments “creatie) an un-

acceptable risk that ‘the death penalty

{may have been] meted out arbitrarily or

capriciously’ ... or through ‘whim ... or

45. 379 So.2d 1336 (La.1979).

4%. Id. at 1371.

47. id. at 1370-71 & n. 4.

48. Willie, 410 So.2d at 1032, 1034.

© ba we<

9

SAWYER v. BUTLER 5562

mistake.’ @

The majority concedes that numerous

states, including Louisiana, forecast Cald-

well by prohibiting the arguments that the

the state courts adopted these rules before

Caldwell to conform state law to perceived

eighth amendment requirements, rather

than conforming to an independent federal

constitutional constraint articulated by the

Supreme Court, is a distinction without a

difference for the purpose of determining

whether Caldwell announced a “new rule.”

In either case, the state courts based their

interpretations on the eighth amendment,

and their widespread anticipation of Cald-

well strongly suggests that the Supreme

Court's subsequent decision in that case

maintained a continuity with and fulfilled

clearly discernible principles in eighth

amendment jurisprudence.

In Dugger v. Adams,” the Supreme

Court found these state laws sufficiently

established to conclude that the legal basis

for raising a Caldwell-type claim prior to

Caldwell was “reasonably available to

counsel,” and that Caldwell was, therefore,

of such vintage as to be subject to the

49. Caldwell, 472 US. at 343, 105 S.Ct. at 2647

(O'Connor, J., concurring in part and concur-

ring in the ) (quoting Ramos, 463

U.S. at 999, 103 S.Ct. at 3451, and Eddings,

455 US. at 118, 102 S.Ct. at 879)

%. — US. —, 109 S.Ct. 1211, 103 L-Ed.2d

435 (1989).

St. id at ——, 109 S.Ct. at 1215-17.

$2. 774 F.2d 97 (Sth Cir.1985), cert. denied,

476 U.S. 1176, 106 S.Ct. 2904, 90 L.Ed.2d 990

(1986).

$3. 477 US. 399, 106 S.Ct. 2595, 91 L.Ed.2d

335 (1986).

procedural-bar rule.*' In Moore v. Black-

burn, we considered a writ application

based on Caldwell barred by the abuse-of-

writ doctrine for the same reason. If both

the Supreme Court and this court have

considered, on the basis of state laws antic-

ipating Caldwell, a Caldwell-type claim

sufficiently established to negate cause for

failing to raise it years before Caldwell,

how may we now ignore these state laws

and conclude that Caldwell is novel?

Contrary to the majority's assertion, the

Teague plurality’s citation of Ford v.

Wainwright ™ as an example of a “new

rule” does not establish that state rules are

irrelevant to determining whether a rule is

“new.” In Ford, the Court looked to

state law for “objective evidence of contem-

porary values” ™ and noted that 26 states

had enacted statutes prohibiting the execu-

tion of insane persons while other states

adhered to the common law principle pro-

hibiting such executions.“ Although the

Teague plurality did not explain why Ford

should be considered a “new rule,” the

Court's discussion in Penry suggests that

any substantive eighth amendment rule

that “prohibits imposing the death penalty

on a certain class of defendants because of

their status or because of the nature of

their offense” will be “new” because of its

sweeping and categorical nature,’ even

S4. See Teague, — U.S. at ——, 109 S.Ct. at

1070.

SS. Ford, 477 US. at 406, 106 S.Ct. at 2600.

36. id. at 408-09 & n. 2, 106 S.Ct. at _ 01 & n.

2. '

$7. Penry, — US. at ——, 109 S.Ct. at 2951

(citations omitted). Such a rule would, how-

ever, necessarily fall within the first excep-

tion to Teague and would be applied retroac-

tively. See ibid.

A - 35

5563 SAWYER v. BUTLER

though such a rule may be premised on a

finding that contemporary yalues, mani-

fested through legislative enactments, al-

ready condemn such punishment.“ The

fact that a rule is inherently ground-break-

ing insofar as it announces a new, categori-

cal rule of substantive eighth amendment

law thus appears to outweigh the fact that

the rule derives from these indicia of com-

munity consensus.

The Teague plurality's citation of Ford

cannot, therefore, be construed as a broad

holding regarding the proper role of state

law in determining whether a rule is

“new.” At most, Teague's citation of

Ford indicates that the existence of state

common law and statutes embodying prin-

-ciples later incorporated into eighth amend-

ment law does not preclude a finding that

the rule is nevertheless “new.” It does not

command us to ignore state law and, in

particular, it does not indicate that state

court interpretations of the federal Consti-

tution are irrelevant to determining wheth-

er a rule is “new” under Teague.

Indeed, the majority's refusal to address

the import of a state's interpretation of the

federal Constitution misconstrues the basis

of Teague 's retroactivity principles. The

plurality opinion in Teague anchored its

retroactivity analysis, the majority recog-

nizes, in the principles of federalism and

finality; it sought to mitigate the uncertain

effect of new and unanticipated obligations

on final state court judgments.” The ma-

$8. Ibid; see Stanford v. Kentucky, — US.

—, ——, 109 S.Ct. 2969, 2975, — L.Ed.2d

—, —— (1989); Thompson v. Oklahoma,

487 US. ——, 108 S.Ct. 2687, 2691, 101

L.Ed.2d 702 (1988); Enmund v. Florida, 458

U.S. 782, 788-96, 102 S.Ct. 3368, 3371-76, 73

L.Ed.2d 1140 (1982); Coker v. Georgia, 433

U.S. 584, 593-97, 97 S.Ct. 2861, 2866-68, 53

L.Ed.2d 982 (1977).

jority ignores, however, a basic precept of

federalism that animated the Teague plu-

rality: state courts, no less than federal

courts, may meaningfully interpret the fed-

eral Constitution. “It is intolerable,” Jus-

tice Harlan asserted, “that [the Supreme

Court) take to [itself] the sole ability to

speak to ... issues of federal constitutional

law;” the decision of an “inferior” court,

“cognizant of the Federal Constitution and

duty bound to epply it,” should not be

deemed “forever erroneous because years

later th{e Supreme] Court took a different

view of the relevant constitutional com-

mand.” The majority's failure to ac-

knowledge and give effect to Louisiana's

prohibition of Caldwell-type error prior to

Caldwell minimizes the role of state courts

in our federal constitutional framework

and devalues the importance of the dia-

logue by which state and federal courts

articulate evolving federal constitutional

norms.*

Sawyer did not raise his Caldwell claim

on direct review, and, on collateral review,

the Louisiana courts summarily rejected

the argument on its merits. Although our

conclusion on the merits of Sawyer's claim

differs from that reached by the Louisiana

courts on collateral review, we rely on the

same constitutional principles that the state

courts considered, not on some “new” con-

stitutional rule unanticipated by the Louisi-

ana Supreme Court. An advocate of even

the narrowest view of the appropriate role

39. Ti — US. at ——, 109 S.Ct. at 1070-

75 (O'Connor J., plurality opinion).

@. Mackey v. United States, 401 U.S. 667, 680,

689-90, 91 S.Ct. 1160, 1174, 1178, 28 L.Ed.2d

404 (1971) (Harlan, J., concurring in the

judgment).

61. See Cover and Aleinikoff, Dialectical Fed-

eralism: Habeas Corpus and the Court, 86

Yale LJ. 1035 (1977).

A - 36

Even if Caldwell announced a new rule,

it nevertheless should be applied to cases

on collateral review because it falls within

the exception provided by Teague for new

rules requiring the observance of “those

62. See Penry, — US. at ——-——, ——, 109

S.Ct. at 2943-47, 2951.

63. See Teague, 109 S.Ct. at 1070 (citing Ford,

477 US. at 410, 106 S.Ct. at 2602).

Se og U.S. at ——, 109 S.Ct. at 1075-

77 ¢ . J., plurality opinion) (

Mackey, 401 US’ at 693, 91 SCL me 1180

cept of ordered liberty,’ that “implicate

the fundamental fairness of the trial,” andy

“without which the likelihood of an accu-

rate conviction is seriously diminished.” “

The plurality in Teague diverged from

Justice Harlan's approach to retroactivity

by adding an “accuracy” qualification to

the “fundamental fairness” exception. im-

plying that only those rules touching on

factual innocence would fall within it

While Justice Harlan had subscribed to this

view in his dissent in Desist,“ he subse-

quently rejected it in Mackey, acknowl-

edging that “it is not a principal purpose of

the writ to inquire whether a criminal con-

viet did in fact commit the deed alleged.” ©

The majority admits that the Teague plu-

rality’s modification of Justice Harlan’s

second exception does not command a ma-

jority of the Court, and although a solid

majority of the Court employed Teague 's

retroactivity analysis in Penry, Penry did

not address the Teague plurality’s gloss of

the fundamental fairness exception ™

The Court's unanimous recognition in

Penry that Teague's first exception en-

compasses a distinct eighth amendment

component” suggests that the Court

would find a parallel component in Teag-

ue's second exception, and exempt from

Teague 's nonretroactivity rule those capi-

tal sentencing procedures that ensure the

“accuracy” of the sentencer's determina-

66. See Desist, 394 US. at 262, 89 S.Ct. at 1041

(Harlan, ! dissenting).

67. Mackey, 491 US. at 694, 91 S.Ct. at 1181

(Harlan, J., concurring in the judgment).

(Harlan, J., concurring in the ) 8 See Penry, — US. at —, —, 109 S.Ct.

(quoting Palko v. Connecticut, 302 US. 319, —-_-2943, 2953.

325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937))). 69. Mid

A- 37

5565 SAWYER v. BUTLER

tion. The plurality in Teague acknow!l-

edged that “a criminal judgment necessar-

ily includes the sentence imposed.” * Both

the plurality and dissent in Teague would,

therefore, agree that Teague's exemption

of new rules that ensure the accuracy of

the determination of the defendant's guilt

or innocence includes new rules that ensure

the accuracy of the sentencer's determina-

tion that a particular defendant deserves

the death penalty.”

The rule Caldwell announced, = on

the “heightened ‘need for reliability’ ”

capital sentencing,” satisfies Teague 's sec-

ond exception: Caldwell error undermines

the eighth amendment's requirement that

responsible jurors produce individualized,

reliable verdicts, and thus seriously dimin-

ishes the likelihood of an accurate sen-

tence. As Justice O'Connor emphasized in

her concurrence in Caldwell: “{T]he prose-

cutor’s misleading emphasis on appellate

review misinformed the jury, ... creating

an unacceptable risk that ‘the death penal-

ty [may have been] meted out arbitrarily

and capriciously’ ... or through ‘whim or

mistake.’"""? For the majority to ignore

the effect of Caldwell error on the reliabili-

ty and accuracy of the sentence seriously

misapprehends the nature of a Caldwell

violation and the reasons behind the

Court's decision to prohibit it.

To justify its conclusion that Caldwell

does not satisfy Teague's second excep-

70. Teague, — US. at —— n. 3, 109 S.Ct. at

1077 n. 3 (O'Connor, J., plurality opinion).

71. See ibid; id. at —— n. 5, 109 S.Ct. at 1089

n. S$ (Brennan, J., dissenting); cf. Adams, —

U.S. at ——, 109 S.Ct. at 1217-18 n. 6; id. at

—— n. 4, 109 S.Ct. at 1219 n. 4 (Blackmun,

J., dissenting); Ramos, 463 U.S. at 1007-09,

103 S.Ct. at 3457.

72. Caldwell, 472 U.S. at 340, 105 S.Ct. at 2645

(quoting Woodson, 428 U.S. at 305, 96 S.Ct.

at 2991 (Stewart, J., plurality opinion)).

tion, the majority relies primarily on Dug-

ger v. Adams," in which the Court held

that refusing to consider a petitioner's pro-

cedurally-barred Caldwell claim would not

result in a “fundamental miscarriage of

justice." "* Acknowledging that Adams

scrutinized “the facts of a particular case,

while the Teague|-jordered liberty stan-

dard looks to the character of the general

rule asserted,” the majority nonetheless

dismisses this distinction as more semantic

than substantive.

Whether or not the principles underlying

the procedural default and retroactivity

doctrines are similar, there is a substantial

difference between denying a particular

petitioner the benefit of a rule based on

the unique facts of his case, and holding

that no petitioner, whatever his situation,

may benefit from retroactive application of

the rule to his case. The Court recognized

this distinction in Adams, stating that

“{djemonstrating that an error is by its

nature the kind of error that might have

affected the accuracy of a death sentence

is far from demonstrating that an individu-

al defendant probably is ‘actually innocent’

of the sentence he or she received.” * Un-

der Teague, we must address the nature of

Caldwell error, not the specific facts of

Sawyer's case.

The majority conflates the individual and

the categorical in order to obscure the ulti-

73. Caldwell, 472 US. at 343, 105 S.Ct. at 2647

(O'Connor, J., concurring in part and concur-

ring in the judgment) (quoting Ramos, 463

U.S. at 999, 103 S.Ct. at 3451 and Eddings,

455 US. at 118, 102 S.Ct. at 879).

4. — US. —, 109 S.Ct. 1211, 103 L.Ed.2d

435 (1989).

7S. Id. at —— n. 6, 109 S.Ct. at 1217-18 n. 6.

76. Ibid.

SAWYER v. BUTLER 5566

mate import of its holding—that the eighth

amendment values Caldweil articulated

constitute an unwarranted innovation in

eighth amendment jurisprudence and are

insignificant in the pantheon of values

present in crimina! procedure. Caldwell is

worthy of higher esteem, for the Supreme

Court found Caldwell error so destructive

of the fundamental right of a defendant

assured by the eighth amendmert to a reli-

able and accurate sentence that it pre-

sumed the error to be prejudicial unless the

state demonstrated otherwise.” Not all

errors in the capital sentencing context are

so critical. For example, a death sentence

based on an aggravating factor invalid un-

der state law, but supported by evidence

properly before the sentencer, does not suf-

ficiently implicate the accuracy of the sen-

tencing process to warrant a presumption

of prejudice.” Prejudice is assumed, how-

ever, when the sentencer has not been al-

lowed to cousider or give effect to relevant

mitigating evidence,” when an aggravating

factor is premised on incorrect or invalid

evidence,” or when the jury's sense of re-

sponsibility has been undermined."

IV

The majority acknowledges that the

death penalty “is different from all other

77. Caldwell, 472 US. at 341, 105 S.Ct. at

2646.

78. See Barclay v. Florida, 463 U.S. 939, 956-

$7, 103. S.Ct. 3418, 3428, m4 L.Ed.2d 1134

(1983); Zant v 462 U.S. 862, 887-

88, 103 S.Ct. 2733, 2748, 77 L.Ed2d 235

(1983).

79. See Hitchcock v. , 481 U.S. 393, 397,

107 S.Ct. 1821, 1824, 95 L.Ed.2d 347 (1987);

Skipper v. South Carolina, 476 U.S. 1, 8, 106

S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986).

80. See Johnson v. Mississippi, 486 US. —.,

——, 108 S.Ct. 1981, 1987, 100 L.Ed.2d $75

(1988).

[punishments] in many respects.” Yet, by

denying that Caldwell interpreted and ap-

plied consistently the Court's eighth

amendment jurisprudence to new facts, and

by refusing to accord the heightened need

for reliability in capital sentencing a role in

Teague 's fundamental fairness exception,

the majority eviscerates the procedural pro-

tections on which the constitutionality of

tnis ultimate and irreversible penalty is

premised. The majority has, in effect, giv-

en finality concerns greatest force in the

area where the eighth amendment requires

that we be most wary. We cannot agree

that a state's interest in the finality of a

judgment of death outweighs a defendant's

right that a sentencing jury, accurately in-

formed of its role and responsibility, deier-

mine his moral cuipability. Society takes

little delight in the grim, but sometimes

necessary, execution of a criminal defen-

dant; its investment is in the informed,

deliberative process by which the state's

taking of a life is made legitimate.

It is indeed ironic that the majority in-

vokes Teague, undoubtedly a new rule,” to

prevent us from applying Caldwell, which

is at most an extension of settled doctrine.

If any case should be considered as having

established a new rule not retroactively

81. See Caldwell, 472 US. at 341, 105 S.Ct. at

2646.

82. See Teague, — US. at —— nn. 3 & 4, 109

S.Ct. at 1086 nn. 3 & 4 (Brennan, J., dissent.

ing); compare id. at ——, 109 S.Ct. at 1060-

78 (O'Connor, J., plurality opinion) with

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct.

1731, 14 L.Ed.2d 601 (1965); Srovall v. Den-

no, 388 US. 293, #7 S.Ct. 1967, 18 L.Ed.2d

1199 (1967); Desist, 394 US. 244, 89 S.Ct.

1030; Mackey, 401 US. 667, 91 S.Ct. 1160;

Solem, 465 U.S. 638, 104 S.Ct. 1338.

A - 39

5567 SAWYER v. BUTLER

applicable to habeas petitioners whose con- ty instead reaches out to an opinion ren-

vietions have become final, it is Teague dered by the Supreme Court 16 months

itself. Had the majority decided Sawyer's after submission of Sawyer's case and 8"

case on the basis of the Supreme Court years after Sawyers trial to find a reason

decis in existence when Sawyer's case to deny him constitutional protection. That

srgued and submitted to this court, to us is a finality of sorts, a final and

mapetty epinion would have granted = svable ahourdily.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

OILBERT F GANUCHEAU

Hnited States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK TOL. 990 — se0-45t6

00 CAMP STREET

NEW ORLEANS. LA 70130

March 30, 1989

Ms. Elizabeth W. Cole

Attorney at Law

7031 Freret St.

New Orleans, LA 70118

Ms. Dorothy Pendergast

Asst. District Attorney

24th Judicial District Ct.

New Courthouse

Gretna, LA 70054

No. 87-3274 - Sawyer v. Butler

(USDC No. CA-86-0223-"1"(4)

Dear Counsel:

The En Banc court requests that counsel in this case

submit additional briefs discussing the relevance of the Supreme

Court’s recent decision in Teague v. Lane, 57 U.S.L.W. 4233

(1989), to Sawyer's petition. The Court wishes to know whether

Teague precludes Sawyer from raising Caldwell issues in a

collateral attack on his conviction. Counsel should address the

following questions, although they need not limit themselves to

these questions:

1. Does Caldwell articulate a rule that is new

within the meaning of the Teague test? In

answering this question, please discuss. the

Significance of the Louisiana cases dealing with

prosecutorial argument that diminishes the

responsibility of a capital jury. See, ¢@.g.,

Steve v. Willie, 410 So.2d 1019 (La. 1982). The

ourt wishes to know whether these cases rest upon

state law rules, or upon the Eighth Amendment to

the Constitution, and what effect, if any, they

have upon the newness of Sawyer's Caldwell claim

for Teague purposes.

oho

A- 41

2. Does Teague apply to collateral attacks upon a

sentencing proceeding in a capital case?

3. Noes Caldwell announce a rule that falls within

the “fundamental fairness" exception to the Teague

rule?

Sawyer's brief should be filed on or before Nay 12. Louisiana's

brief should be filed on or before Nay 19,

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

Vockrot

Case Manager

AKV/dme

A - 42

[Closing Arguments and Jury Instructions in the Sentencing Hearing]

Argument by the state from 4:15 p.m. to 4:25 p.m.

as follows:

MR. BOUDOUSQUE:

Ladies and gentlemen, we are now at the second

phase of the proceedings you were told about during the

course of the voir dire. You will decide if the crime

and relating circimestances fit into technical

- 9R0 - A- 43

definition of the law. The law states that the

sentence of death shall not be imposed unless the

jury finds beyond a reasonable doubt that at least

one statutory aggravating circumstance exist and

after consideration any mitigating circumstances

recommends the sentence of death be imposed. The jury

shell be furnished a copy with the statutory

aggravating and mitigating circumstances. The State is

going to contend there are four aggravating

circumstances that the jury can find without a

reasonable doubt. One, the following shall be

considered, aggravating circumstance. When the

offender is engaged in the perpertration or the

attempted perpetration of an aggravated rape or an

aggravated arson. Just the facts of the crime alone

can be considered as an aggravating circumstance. Two,

where the offender has been previously convicted of an

unrelated gurder, aggravated rape, aggravated

kidnapping or has a significant prior history of

criminal ectivity.

Well you have heard Robert Sawyer own sister

tell you that he has been a follower of the law most

of his life. You aleo heard of s 1974 conviction where

the defendant took the life of a four year old child,

was indicted for second degree murder and was convicted

of involuntary manslaughter. Where the offense was

committed in an especially heinous and atrocious and

cruel manner. (The D.A. dieplays the gtuteqente.?

Need I say more, and where the offender knowingly

- 961 - A-%

20

created a risk of death or great bodily harm to more

than one person. There were two small children as

well as Cynthia Shano in that house. That will be a

question of fact for the jury to decide. The lew

provides that if you find one of these circumstances

then what you are doing as a juror, you yourself will

not be sentencing Robert Sawyer to the electric chair.

What you aremying to this Court, to the people of

this Parish, to any appellate court, the supreme Court |

of this state, the Supreme Court poseibly of the unit

States, that you the people as a fact finding boty f

all the facts and evidence you have heard in |

relationship to thie men's conduct are of the opinion |

that there are aggravating circumstances as defined by |

the statute, by the State Legislature that this is

the type of crime that deserves that penalty. Itis |

merely @ recommendation so try as he my, if mr.

Weidner tells you that each and every one of you 1

hope you can live with your conscience and try and seed

upon your emotions, you cannet deny, it is a difficult |

Gecision. Mo one likes to make those type of |

decisions but you have to realize if but for this man's

actions, but for the type of life that he has decided

to live, if of his om free choosing, I wouldn't be

here presenting evidence and making argument to you.

You wouldn't have to make the decision. Thies man is

almost thirty years old, thirty-one years old. fe is

an adult. You heard his sister testify. I have

compasion and I certainly have understanding and some

- 962 - A - 45

emotions about her feelings. Although I must tell

you when I listened to some of the things that she

said concerning how beautiful that four year old child

was treated that I am somewhat maybe, maybe I was a

little harder than I should have been when I asked

her questions. For that I apologize, but it was only

an instinctive reaction on my part but the facts

remain there are many of us in this life, life is not

an easy thing but life is the most important thing we

know and when someone takes it in his own hands for

whatever reason because he wants to get it off and

have his joys and jollies, when he decides to take

another life into hie hands and in this case two within

a five year period, then the line has to be draw.

This man i* never going to change. He has committed

two homicides in five years. You have experienced a

certain amount of emotions in this case. I am sure

your heart goes out to his sister and maybe to his

nephew. During the course of this trial I haven't

been so lucky. The only pereon that I've been able

to converse with ie Mr. Beckendorf. Frances Arwood

is not here. I wish she covld tell you what she went

through on September 28 when she was locked into that

chamber of horrore, when over that extended period of

time thie man so savagely and brutally along with

Charles Lane beat, kicked, poured scalding hot water,

raped, set her on fire, see what I'm trying to say,

that Frances is not here. 1 didn't ask her mother to

come back. I thought that the emotional aepect of

- 983 - A- 4%

10

20

what she had to undergo the first time was enough

but think about how she feels. Think about that if

that was your child or your wife or your relative.

What I'm trying to eay is that it is nice and easy

to put Frances Arwood in the abstract but she will

never know another sunrise. She will not know what

is basic to you and me which is living. There is

really not a whole lot that can be eaid at thie point

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

Gecision is in your hands. You are the people that “

going to take the initial step and only the initial

step and all you are saying to this court, to the

people of this Parieh, 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

impact of the law of Lovisiana. all you are saying is

that this man from hie actions could be prosecuted to —

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

I submit to you when you evaluate the facts of this

case and you make a comparison with the atrocious

nature of the facts of thie case, the facts of the

case that you heard about when little Laurie Durham,

four years old, lost her life, 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.

- 974 - A - 4?

It's all your doing. Don't feel otherwise. Don't

feel like you are the one, because it is very easy

for defense lawyers to try and meke 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 to

say you are wrong so I ask that you do have the

courage of your convictions. You've done the right

thing so far. There can be no doubt that Robert

Sawyer committed this crime. The evidence is strong

and convincing although he still denies that. He

still state= he was so intoxicated he doesn't

remember anything about this crime. He gave a

statement two hours after the crime admitting or at

least te_ling everyone about it. I could have cross

examined him and gone more and more into it and gotten

more and more lies but his guilt has already been

decided.

I ask that you consider what I have just told you

and I may or may not be back to epeak to you in a

brief rebuttal after Mr. Weidner argues. Thank you.

Closing argument by the Defense from 4:25 p.m. to

4:35 p.m. as follows:

MR. WEIDNER:

Ladies and gentlemen, I don't quite know what to

say. I have never been in thie position before. 1

guess I am doing exactly what Mr. Boudoueque told you

I was going to do. The decision whether Robert Sawyer

- 985 - A- 4

lives or dies is in your hands for one very simple

reason. Should you decide today that he gets life

imprisonment, well then the issue of whether or not

he would be executed never comes up again. The issue

remains a life only if you decide that he should be

executed. I don't know what I can say for Robert

Sawyer. Ae is a poor miserable little human being.

He has had a hell of a life. He was involved in a

very heinous act. Re has been in a mental hospital.

Like Doctor Arneson told you probably a sociopath.

We know and it is never been attempted to be rebutted

that Mr. Sawyer was intoxicated the day this incident

with Frances Arwood occurred. you obviously helieve

that he is guilty of first degree murder. That is

your verdict. How can we believe, I know I can't,

anyone in their right mind or in possession of their

faculties could do something like this. 1 personally

|

|

do not agree with the death penalty. I don't think |

there is any circumetance when anyone has the right aad

kill another person no matter how we try to get away |

from it. That is what we would be Going is killing |

another person. Charles Lane is serving life

imprisonment. I'm going to ask you to give Robert

Sawyer the living death of life imprisonment. Don't

kill. Thank you.

Rebuttal argument by the State from 4:35 p.m. to

4:40 p.m. as follows:

MR, BOUDOUSQUE :

Mr. Weidner states that if you recommend life

- 966 - A - 49

imprisonment instead of the electric chair then you

will never have to worry about the issue of whether

or not Mr. Sawyer will receive the chair. At that

point in time the only thing you will have to worry

about is whether or not Robert Sawyer will ever be

back on the streets of Jefferson Parish. The man's

personality has already been formed. The statute

speaks without benefit of probation, suspension,

commutation of sentence. The statute does speak about

a pardon. The ctrtute doesn't speak about a

commutation so don't think that if you vote for

first degree murder, I'm sorry, for life imprisonment

that that will be the end of this matter as it

relates to Robert Sawyer because it's not. He speaks

in terms of hie personal feelings of the death penalty.

Such a decision is never eany to make but if Lovisiana

law, if the law which we have in this state is to have

any piece, if it's to have any meaning, if it's to have

any impact on all the other people out on the streets

that are committing crimes and murders and rapes and

robberies, that is affecting you and me and every

member of your family. That has made the good people

of this community become prisonerea in their own homes

in sutting bars up in their own homes. They are the

ones who are euffering. If the statute is to have any

weight behind it at all, my God, ladies and gentlemen

thie is the time to draw the line becauee if a man

can commit this type of crime, do thie type of thing

to thie woman in front of two children with a prior

- On7 - A- 50

28

29

conviction for killing a four vear old child, then

what are the people of this Parish to believe. They

are going to believe what a lot of people believe.

there is a lot of law and a lot of judges but the judges

are letting the criminals out, the lew never has any

affect. Don't you see that the criminal justice

system, ladies and gentlemen, is not the courts, it's

not the judges, it's not technicalities of defense

lawyers, it ie nothing more than people like you and

mea and if you are not capable of making these types of

decisions so well then you are right, there will he

a breakdown and there has been a breakdown but Ir will

tell you what imper‘ect is, the system is. At least

thie man has had the occasion to be judged by twelve

men of his peers, twelve men and women of his peers

and in some other countries he may have been taken

out and summarily executed. He has had the due proces

of law and then he expects you because Charles Lane

he did that for a reason because he wants to say well

Charles Lane got life imprisonment upon conviction of

first degree murder but this man should get the same.

Well if I were to tell you that Charles Lane, that r

was the prosecutor in that case and the evidence that

was presented for Charles Lane, Charles Lane never had

a conviction.

MR. WEIDNER:

Objection.

THE COURT:

The Court sustains that.

- 988 - A- 51

mw

“a

MR. BOUDOUSQUE :;

There are

aggravating circumstances possibly mr.

Lane did not have.

MR, WEIDNFR:

Objection

MR. BOUDOUSQUE:

again.

I'm talking about aggravating circumetances.

THE COURT:

You can argue that.

MR. BOUDOUSQUE :

There are

are involved and maybe the jury didn't find that those

certain aggravating circumstances that

aggravating circumstances existed and maybe the jury

found that as a matter of fact he was a passing

participant and not the main activist in this heinous

chain of events. This is the man. He is the one and

I think in your heart you know that so no matter how

unpleasant or how difficult this type of decision may

be for you to make, if you really analyze it you don't

have a choice.

There is only one verdict that can be

rendered in this case and there will be a strong

sy™boliem 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 I ask that you

recommend because all you are doing is making a

recommendation.

I 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

- 979 - A - 52

THE COURT:

the imposition of the death penalty. Thank you.

Ladies and gantlemen, before I begin, Charles

Lane was not tried in this Court by you and I ask

that you disregard any reference to Charles Lane's

trial. That trial had nothing to do with or should

have nothing to do with your deliberations. whatever

happened to Charles Lane certainly should be of no

concern to you. All right.

Raving found Robert Sawyer guilty of firet degree

murder you must now determine whether he should be

sentenced to death or to life imprisonment without

benefit of probation, parole or suspension of

sentence. It is your duty to consider the cLrcmetance

of the offense and the character and propensities of

Robert Sawyer to determine which sentence should be

imposed. In reaching your decision regarding the

sentence you must be guided by these instructions.

You are required by law to consider the existence of

aggravating and mitigating circumstances in deciding

which sentence to impose. The statutory aggravating

circumstances are listed on the sheet of paper you have.

The District Attorney contendsthat four of those

circumstances are applicable to this case and if you

look at your list you will see A, the offender was

engaged in the perpetration or attempted perpetration

of aggravated rape or aggravated arson. B, obviously

does not apply. C states that the offender was

previously convicted of an unrelated murder, aggravated

- 999 - A - 53

20

rape or aggravated kidnapping or I say significant

prior history of crininal activity. Did the

defendant knowingly create a risk of death or great

bodily harm to move than one person and if you drop

on down to G it states that the offense was committed

in an especially heinous, atrocious or cruel manner.

Before you decide that a sentence of death should be

imposed you must unanimously find beyond a reasonable

Govbt that at least one statutory aggravating

circumstance exist. If you find beyond a reasonable

doubt that any of the statutory aggravating circumstan¢es

existed you are authorired to consider imposing a

eentence of death. 2 on do not unanimously find

beyond a reasonable doubt sny of the etatutory

aggravating circumstances existed the life imprisonment

without probation or parole or suspension of sentence

is the only sentence that may be imposed. Even if you

find the existence of an aggrevating circumstance you

must also consider any mitigating circumstances before

you decide a sentence of death should be imposed.

The law specifically list certain mitigating

circumstances and you have that list. These

mitigating circumstances are A, the offender has no

significant prior history of Criminal activity. 8B,

the offense was committed while the offender was under

the influence of extreme mental or emotional @ictusbeacs.

C, the offense was committed while the offender was

under the influence or domination of another person.

D, the offenee was committed under circumstances

- 991 - A- 54

which the offender reasonably believed provide a

moral justification or extension of his conduct. F,

at the time of the offense the capacity of the

offender to appreciate the criminality of his conduct

er to conform his conduct to the requirements of law

was impatred as a result of mental disease or defect

or intoxication. F, the youth of the offender at the

time of the offense. G, the offender was a principal

whose participation wae relatively minor and H, roy

other relevant mitigating circumstances. You will

note that you are authorized to consider any

relevant mitigating circumstances. The fact you are

given a list of aggravating and mitigating

circumstances should not cause you to infer the Court

believes that any of these circumstances do or do

not exist. The law requires that the jury be given

such a list in every case. Whether any of the

aggravating or mitigating circumstances exist is a

fact for you to determine based upon the evidence

presented. In addition to the evidence presented at

this sentencing hearing in deciding the sentence to

be imposed you may consider evidence presented during

the guilt determination trial that was brought you

earlier. In just a moment the clerk will hand you

two blank forms of verdicts, The first formal

verdict reads having found the below listed statutory

aggravating circumstance or circumstances and after

consideration of the mitigating circumstances offered,

the jury recommends that the defendant be sentenced to

- 998 - A- 55

1 death. In the event you ehould unanimously decide the below Hsted statutory aggravating circumstance or

2 the death penalty should be imposed, a space is . circumstances and after consideration of the

3 provided for you to write out the statutory circumstan¢te : mitigating circumstances offered, the jury recommends

4 or circumstances unanimously found to exist. The : that the defendant be sentenced to death.

> foreman will sign the form. The second formal 5 Aggravating circumstances found: 1.) The

6 verdict reads, the jury unanimovely recommends that . offender was engaged in the perpetration of

7 the defendant be sentenced to life imprisonment without , aggravated arson, 2.) tie offender was previously

5 benefit of probation, parole or suspension of sentence), . convicted of an unrelated murder, 3.) the offense

9 This verdict form is to be used if you cannot ? was committed in an especially heinous, atrocious and

i") unanimously agree that the death penalty should be ” cruel manner. Signed Susan B. Roundtree, forewoman.

7 imposed. If the jury decides that a life penalty i MR. WEIDNER:

12 without probation or parole or suspension of sentence Ve Would you poll the jury.

1 should be imposed the foteman will sign that formal '' | THE CLERK:

14 verdict, no listing of aggravating or mitigating 4 Q Mr. Ragas, is that your verdict?

15 circumstancee are required if you use this second IS A Yes.

It verdict form. Nothing said ur furnished you in these © Q Miss Roth, is that your verdict?

17 instructions should be taken as an opinion of the "7 A Yes.

18 Court as to the existence or not of statutory is Q Mr. Andressen, is that your verdict?

19 aggravating or mitigating circumstances. It is your 7F a Yes.

20 responsibility in accordance with the principles of 20 Q Mr. Drumm, is that your verdict?

21 law I have instructed whether the defendant should be = A Yes.

22 sentenced to death or the life imprisonment. Go with 22] Q ~~ Mr. Akerman, is that your verdict?

23 Mr. Miller back in the jury room: 237 aA Yes.

24 (Jury retired at 4:45 p.m. The jury returned at 24 Q Mr. Cacioppo, is that your verdict?

95 5:20 p.m.) 2] A Yes.

2% THE COURT: 26 Q Mr. Leaber, ie that your verdict?

27 Would youhand Mr. Miller the verdict form. 27 A Yes.

28 THE BAILIFF: 28 Q Mr. Pollack, is that your verdict? i

29 Louisiana vereus Sawyer. Verdict, having geund 29 A Yes.

- 993 - A- 56 eo 6 « A - 57

ry oO F Oo FlmUOUCUPmUCUCO

Miss Roundtree, is that your verdict?

Yea.

Mr. Wood, is that your verdict?

Yes.

Mise Dunne, is that your verdict?

Yes.

Miss Gueman, is that your verdict?

Yes.

THE COURT:

That is twelve.

The Court will remand mr.

Sawyer to the Parish Prison and I will schedule

sentencing later.

(Recess for the day at 5:20 p.m.)

- 995 -

A- 58

Rule 11 sanctions is controlled by our re

unable suggested cent er banc decision in Thomas v. Capital

eS oom Security Serva, Inc., 836 F.2d 866 (5th

documents that goes beyond routine or typ- Cir.1988) (en banc), in which we reaffirmed

banking practices to support an allega- the district court’s discretionary powers un-

i _ der Rule 11 and limited our review to an

Woodward, 522 F.2d at 97; see also abuse of discretion.

Ruder, Multiple question, we cannot say the district court

Sieh i ieee abused its discretion in denying sanctions.

Although it is a close

to summary judgment. Robert SAWYER, Petitioner-Appeliant,

A- 59

Robert H. BUTLER, Sr., Warden,

Rule 11 sane- Louisiana State Penitentiary,

Respondent- Appellee.

sanctions against the unrelated plaintiffs -

plaintiffs who purchased inter- Ne. 87-3274.

principa] defendants in drill- , Is,

og than the Walker 1-5 Se

whom Landmark had no

Landmark argues that before June 30, 1988

unrelated plaintiffs were nonsuited, Order Granting Rehearing En Banc

required to engage in exten- Aug. 25, 1988.

ae Sat

if plaintiffe-appeliees :

inquiry needed to show Petitioner appealed denial by the Unit-

case against Landmark. ed States District Court for the Eastern

district court's denial of District of Louisiana, at New Orleans, Hen-

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2. Criminal Law ¢-641.13(1)

Test for ineffective assistance of coun-

that defendant was deprived of fair and

reliable trial. U.S.C.A. Const.Amend. 6.

3. Criminal Law ¢>641.13(1)

In order to make showing that coun-

sel’s performance was constitutionally defi

cient, defendant must demonstrate that

counsel's representation fell below objec-

tive standard of reasonableness as mea-

sured by prevailing professional standards.

U.S.C.A. Const.Amend. 6.

4 Criminal Law ¢-641.13(1)

In evaluating whether counsel's al

leged error has prejudiced defense, it is not

enough for defendant to show that errors

had some conceivable effect on outcome of

sult of proceeding would have been differ-

ent. US.C.A. Const Amend. 6.

5. Criminal Law €641.13(4), 1163(2)

Failure of defense counsel to meet

Louisiana requirement of five years’ expe-

rience for appointed counsel in capital case

was not presumptively prejudicial, since no

actual or constructive denial of assistance

of counsel resulted. LSA-C.Cr.P. art. 512;

U.S.C.A. Const.Amend. 6.

6. Criminal Law 641.132)

Defendant was not prejudiced by coun-

sel’s failure to question prospective jurors

about their views on death penalty, where

state questioned prospective jurors on this

point. U.S.C.A. Const. Amend. 6.

7. Criminal Law €>641.13(2)

Defendant was not prejudiced by de-

fense counsel's failure to rehabilitate ve

niremen who were excused because of their

views contrary to death penalty, absent

8. Criminal Law ©°641.13(2)

Defendant was not prejudiced by de-

fense counsel's objection to jury's learning

of mandatory life imprisonment penalty for

ample evidence to support jury's determina-

tion that defendant was guilty of first-de-

gree murder. U.S.C.A. Const.Amend. 6.

9. Criminal Law 641.186)

Defense counsel was not ineffective in

failing to secure his own expert witnesses

to support defendant’s intoxication and tox-

ic psychosis defenses, sbeent suggestion

that an examination would produce type of

results sought or demonstration of suffi

cient evidence that defendant suffered

from toxic psychosis. U.S.C.A. Const.

Amend. 6.

10. Criminal Law ¢>641.13(2) :

Defense counsel's waiver of closing ar-

gument, believing the evidence against de

fendant to be overwhelming, was not preju-

dicial, absent showing of what counsel

A - 60

584 848 FEDERAL REPORTER, 24 SERIES

might have said at closing that would have

had reasonable probability of changing the

result. U.S.C.A. Const.Amend. 6.

1. Criminal Law ¢>641.13(7)

Defendant failed to specify what other

mitigating evidence was available or how

that evidence could have affected jury's

decision, as required to support contention

that defense counsel failed to prepare com-

petent penalty phase presentation in capital

case. U.S.C.A. Const.Amend. 6.

12. Criminal Law ¢°641.13(2)

While defense counsel's closing was

cursory and perfunctory, no prejudice was

affirmatively demonstrated, as required to

establish ineffective assistance of counsel.

U.S.C.A. Const.Amend. 6.

13. Criminal Law © 1166.11(5)

Equal protection claim based on viola-

tion of Louisiana statute requiring that ap-

pointed counsel in capital case have five

years’ experience was subject to harmless

error analysis. LSA-C.Cr.P. art. 512; U.S.

C.A. Const.Amend. 14.

14. Criminal Law ¢1165(1)

Error is harmless where, after review-

ing facts of case, evidence adduced at trial

and impact constitutional violations had on

trial process, evidence remains not only

sufficient to support v

This text is long and has been trimmed here. Open the source document for the complete record.