# Appendix — Sawyer v. Smith

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0476%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 227

## Text

/
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 69

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0476%3A03. Public record. Not legal advice.