# Respondents Brief — Whitmore v. Arkansas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0557%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 149

## Text

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de esta Gene Simmons, Sr.

i
QUESTIONS PRESENTED
I.

WHETHER THE EIGHTH AMENDMENT'’S BAN
AGAINST CRUEL AND UNUSUAL PUNISHMENT
REQUIRES A MANDATORY APPELLATE REVIEW IN
ALL CASES IN WHICH THE DEATH PENALTY IS
IMPOSED.

WHETHER A THIRD PARTY HAS STANDING TO
ASSERT THE VIOLATION OF CONSTITUTIONAL
RIGHTS WHEN THE PARTY DIRECTLY AFFECTED
DOES NOT ASSERT THE RIGHT.

oo. 2 i i A ee ee ee a

PARTIES TO THE PROCEEDINGS!

'The caption of the case does not contain the names of all of the
parties. Is Ronald Gene Simmons, Sr., a party, or not? To remove any
uncertainty about his status as a party in this matter, Simmons’
attorneys filed with this Court a motion to have Simmons declared a
party. Said motion was received April 1, 1989, in the Office of the
Clerk of the Supreme Court of the United States. Simmons’ lawyers
thereafter received a letter from the U.S. Supreme Court Clerk's office
dated April 5, 1989, which stated in part: ““The motion to declare
Ronald Gene Simmons a party for the purpose of filing a brief in
opposition was received April 1, 1989, and is herewith returned as
unnecessary.'’ Again, a letter was received from the U.S. Supreme
Court Clerk's office dated July 19, 1989, which stated in part: “By
copy of this letter to all counsel, I am requesting that any future
pleadings, correspondence, etc., filed in this case, that copies be
served upon you as counsel for Ronald Gene Simmons. I am
enclosing an Appearance Form for you to complete as counsel for
Ronald Gene Simmons.”’ On July 25, 1989, the Appearance Form,
Supreme Court of the United States, No. 88-7146, was completed and
filed with this Court by letter dated July 2£, 1989. On August 2, 1989,
Simmons’ lawyers and lawyers for the respondent State of Arkansas
mailed for filing a motion for additional time and for divided time for
oral argument, and as of this time, the Court has not acted upon
Simmons’ motion requesting the opportunity to present oral
argument in this case. Apparently, the Petitioner does not regard
Ronald Gene Simmons, Sr., as a party in this case because Simmons’
name as a respondgt is continually omitted from the caption of the
case in all of Petitioner's pleadings. Therefore, after all of this, the
question still exists, “Is Ronald Gene Simmons, Sr., a party in this
case? Will Ronald Gene Simmons, Sr., be afforded the opportunity to
participate in oral argument in this case? Isn't Ronald Gene
Simmons, Sr., the real party in interest in this case?” In conclusion,
respondent Simmons contends that the caption of the case does not
contain the names of all of the parties.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ..........00 0 eee eeeeeeees i
BR Ge ME oc cece cc ccccccccccccccccccvccces ii
TABLE OF CONTENTS ........- 0c ce eeeeeeeeeeeees iii
TABLE OF AUTHORITIES. ............ 6-50 e eee euee iv
CITATIONS TO OPINIONS BELOW ...........--+5. l
N10): 3 |) 0) (0s 8 (0), re eee 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........6 50 cee cece eeeeee 2

STATEMENT OF THE CASE ..........-20e eee eeeees 3
SUMMARY OF ARGUMENT ....... 2... 02 eee eee ee eees i)
PT Ces coe dadcdeccccccccccccccccces 11-29
IA. Whether the Eighth Amendment’s ban against

cruel and unusual punishment requires a man-

datory appellate review in all cases in which the

death penalty is imposed? ........+..+000e+085 1]
B. A mandatory appellate review of death penalty

cases is NOT necessary to reflect contemporary

standards of decency. ........eeeeececceeecees 16
C. Whether the Arkansas death penalty statute is

subject to being arbitrarily and capriciously

imposed in the absence of mandatory appellate

DE SaRERG ERG edhe obo becccocecececececcce 17
D. Allowing a waiver of appellate review in capital

cases under certain conditions is NOT contrary

to public policy or adverse to the rights of

BOCIERY. oc ccc cccccccccccssecccccsccccccccece 18
I]. Whether a third party has standing to assert the

Constitutional rights when the party directly

affected does not assert the right? ...........+6+ 24

CONCLUSION ....... cece cece cece eee eeeeeeeeeees 30

iv
TABLE OF AUTHORITIES
Page

CASES:
Franz v. State, 296 Ark. 181, 754 S.W.2u 839 (1988) ...... 6
Gilmore v. Utah, 429 U.S. 1012 (1976) ..........60. 12
Gregg v. Georgia, 428 U.S. 153 (1976). ...... 0... ee ee eee 9
Hamblin v. Florida, 527 So.2d 800 (1988)............ 23
In Re Estate of Brooks, 32 Ill. 2d 361,

ee Pe RE as nb ote bv esccecuesssdcone 27
Jurek v. Texas, 428 U.S. 262 (1976) .......cccecccceceess se)
RAE Tey GOO We Sek sascidecvscevcueaee 23
McKane v. Durston, 153 U.S. 684 (1894)............. 23
Murray v. Giarratano, _— U.S. —— (88-411,

June 23, 1989), 45 Criminal Law Reporter 3155... .23
Proffitt v. Florida, 428 U.S. 242 (1976) ...........00e0ee 9
Pulley v. Harris, 465 U.S. 37 (1984) ...........00000: 25
Rees v. Payton, 384 U.S. 312 (1966) ..........000008- 12
Rosenberg v. United States, 346 U.S. 273 (1953) ...... 25
Simmons v. State, 298 Ark. 193, 766 S.W.2d 422

GERD bee e hic ceed rdwht ad eebebU VEN bSedeedeiscies l
Simmons v. State, 298 Ark. 255, 766 S.W.2d 423

Ty eee ee er ee ee 7
Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890

GEN 46 66a. enedonnestintebbnoncsbuléeescnse 25

CONSTITUTION AND STATUTES

OP es, SE en. cep cececcceseeecees
Oe | I verse in see eee nec cccoeeees
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OY ee, EE TIE occ cccccccccoccccesess

TREATISES >
Johnson, The Death Row Right to Die: Suicide or

Intimate Decision, 54 S. Cal. L. Rev. 575 (1981)...

Urofsky, A Right to Die: Termination of Appeal for
Condemned Prisoners, 75 J. Crim. L. &

Criminology 553 (1984) .........0eeeeeee ee eees

MISCELLANEOUS

A recent U.P.I. release from the Bureau of

Justice Statistics ......ccccccccccccccccevccees

9

21

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

No. 88-7146

Jonas H. WHITMORE, INDIVIDUALLY
AND AS NEXT FRIEND OF

RONALD GENE SIMMONS ..........0eccceccssecess Petitioner
vs.

EASE GP BANGS win 6 506i 0 6 8c 600640 Horesd’ Respondent

RONALD GENE SIMMONS, SR. ........00eeeeeees Respondent

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF ARKANSAS

BRIEF FOR THE RESPONDENT
RONALD GENE SIMMONS, SR.

OPINIONS BELOW

The opinion of the Arkansas Supreme Court in Franz v.
State (Simmons I), reported at 296 Ark. 181, 754 S.W.2d 839
(1988), is reprinted in the Joint Appendix at page 4.

The opinion of the Arkansas Supreme Court in Simmons
v. State (Simmons II), reported at 298 Ark. 193, 766 S.W.2d 422
(1989), is reprinted in the Joint Appendix at page 29.

The opinion of the Arkansas Supreme Court in Simmons
v. State (Simmons II), reported at 298 Ark. 255, 766 S.W.2d 423
(1989), is reprinted in the Joint Appendix at page 34.

2

JURISDICTION

Article Three of the United States Constitution gives this
Court jurisdiction over actual cases and controversies between
ligitimate parties. This petitioner has no standing indi-
vidually, and therefore seeks to gain next friend status of
Ronald Gene Simmons, Sr., whose competency and age are not
questioned; however, the incompetency of the petitioner is
presently admitted. (See Whitmore v. State, 299 Ark. 55[1989].)
Therefore, this Court is without jurisdiction. Gilmore v. Utah,
429 U.S. 1012.

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the United
States provides:

7
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.

The First Amendment to the Constitution of the United

States provides, in pertinent part:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.

The Fifth Amendment to the Constitution of the United
States provides, in pertinent part:

No person shall. . . be deprived of life, liberty, or property

without due process of law . . .

The Fourteenth Amendment to the Constitution of the
United States provides, in pertinent part:

. .nor shall any state deprive any person of life, liberty,
or property, without due process of law . . .

3

STATEMENT OF THE CASE

During the evening hours of March 15, 1989, Ronald Gene
Simmons, Sr., was eating his last meal. His execution was set
for the next day at 7:00 a.m., the 16th day of March, 1989.
The Respondent Simmons had previously been tried in two
separate cases, convicted, and sentenced to death for capital
murder of sixteen individuals, including fourteen family
members. After each conviction and sentence of death,
Respondent Simmons was fully advised by counsel of nis right
to appeal, potential grounds for appeal, and many other things
concerning the appellate process. Respondent Simmons took
the position that whether or not to appeal was a personal
decision that could oniy be made by him, and it was his
decision that the verdicts in the two previous Cases were just
and proper, and his only request was that the sentence be
carried out without any delay; that life was cruel for him and he
was suffering with it. Immediately after Respondeni Simmons
took this position, parties opposed to capital punishment,
including a Catholic Priest and other death row inmates, came
forward in both the Simmons I and the Simmons II cases, and
attempted to intervene and delay these two proceedings in the
following particulars: First, by claiming next friend status,
and second, by asserting that the United States Constitution
required a mandatory appeal in death penalty cases that
cannot be waived by the defendant.

The trial court immediately gave these interlopers a
hearing on their petitions, and also conducted a competency
hearing to determine whether or not Respondent Ronald Gene
Simmons, Sr., was competent and had knowingly and intel-
ligently waived his right to appeal. After a full hearing on these
matters, the trial court ruled that Respondent Ronald Gene
Simmons, Sr., was competent, that he had in fact knowingly
and intelligently waived his right to appeal, and as such, the
petitioners would have no standing as next friend or otherwise,

4

and as a matter of law, there was no mandatory appeal that
could not be waived by a competent defendant.

The trial court's decision in Simmons I was immediately
appealed to the Arkansas Supreme Court; and the Arkansas
Supreme Court, without any notice to Respondent Ronald
~ Gene Simmons, Sr., and without any meaningful opportunity
for him to be heard on the matter, granted the petitioners’
request for stay of execution. However, ultimately, the
Arkansas Supreme Court, after a full hearing on the matter,
reversed themselves and lifted the stay of execution, and
specifically found that Respondent Ronald Gene Simmons,
Sr., was competent and had knowingly and intelligently
waived his right to appeal; that the petitioners as such would
have no standing as next friend or otherwise; and that the law
of Arkansas and the Constitution of the United States of
America do not require a mandatory appeal that cannot be
waived by a competent defendant.

Immediately thereafter, the petitioners in Simmons I filed
for a petition for writ of habeas corpus in Federal District
Court contending essentially the same things, and again, the
Federal District Judge, without any notice to Respondent
Ronald Gene Simmons, Sr., and without any meaningful
opportunity for him to be heard on the issue, granted a stay of
execution. On September 23, 1988, Federal District Judge G.
Thomas Eisele denied the petitioners’ writ of habeas corpus
“insofar as it attempted to assert any claim that Respondent
Simmons may not make a knowing and intelligent waiver of
any right he may have to state court appellate review by reason
that petitioners do not have standing to assert such a claim, and
this Court therefore lacks jurisdiction over such claim.’ In a
hearing set for September 29, 1988, at 10:00 a.m., Mr. Simmons
was brought before Judge Eisele for the purpose of ascertain-
ing whether Simmons did in fact wish to waive further judicial
review of his state court conviction and sentence, and on

September 29, 1988, Judge Eisele ordered Simmons committed
to the custody of the Attorney General for a period of thirty
days to be transferred to the Medical Center for Federal
Prisoners at Springfield, Missouri, for a psychiatric obser-
vation and examination, during that period to. determine
Simmons’ present competence to waive habeas corpus relief,
with a report of the examinations to be filed with the Court
promptly upon conclusion. On September 29, 1988, Judge
Eisele entered an order appointing Attorney John Wesley Hall
as an expert to review the state and federal records in Simmons’
case, and to advise Simmons independently as to the merit of
any arguments which might be made on Simmons’ behalf. On
October 18, 1988, Judge Eisele ordered the court reporter
for the Circuit Court of Franklin County, Arkansas, to
immediately undertake and complete the preparation of a
transcript of all proceedings of record in that Court in
connection with the trial of Simmons. On December 29, 1988,
Judge Eisele ordered:

The Court finds Simmons is competent to waive Federal
habeas corpus review of his conviction and sentence. After
court-appointed expert informs the Court of his com-
pleted review, the Court will order Mr. Simmons’ return
to Litthe Rock to confer with the expert. Thereafter a
hearing will be held to give Mr. Simmons the opportunity
to make a knowing and intelligent waiver of his rights to
habeas corpus review.

On March 8, 1989, Judge Eisele ordered Simmons to
confer with the Court-appointed expert, John Wesley Hall, on
the morning of 3-9-89, at the Federal Courthouse in Little
Rock. The Judge further ordered:

A hearing will be held at 1:30 p.m., at which time Mr. Hall
and Mr. Simmons will report upon their conference, and
Mr. Simmons shall make known his desires as to waiver of
federal review of his state court conviction.

6

On March 9, 1989, Judge Eisele ordered, on the basis of the
findings and conclusions stated in open court:

The petition for habeas corpus is dismissed. The tempor-
ary stay of execution filed on 8-3-88 is dissolved and set
aside.

On February 28, 1989, attorney John Wesley Hall, Jr., the
expert appointed by Judge Eisele, after reviewing the complete
transcript of the case and visiting personally with Mr.
Simmons, filed his report. Said report does not indicate any
basis for ineffective assistance of counsel, and in reviewing the
psychiatric and psychological evaluation filed with the court
of 11-29-88, and other matters before the Court, Judge Eisele
found Mr. Simmons competent to waive federal habeas corpus
review of his conviction and sentence.

On February 10, 1989, the Simmons II trial was held, anda
Johnson County jury convicted Simmons of capital murder
and sentenced him to death by lethal injection to be carried out
on March 16, 1989, at 7:00 a.m. Following the trial, Mr.
Simmons notified the trial judge of his desire to waive his
appeal, and after an evidentiary hearing held on March 1, 1989,
the trial judge found that Simmons was competent to waive his
right to a direct appeal. In accordance with the Arkansas
Supreme Court's decision in Franz v. State, 296 Ark. 181, 754
S.W.2d 839 (1988), Simmons submitted to the Supreme Court
of Arkansas a transcript of the lower court's proceedings along
with his petition and request for expedited review. After
careful review of those lower court proceedings, the Arkansas
Supreme Court granted petitioner Simmons’ request. After
noting that the trial court considered and made a part of this
proceeding the same psychological evaluations that were
introduced in Franz, in addition the trial court added to the
record the forensic evaluation which was filed in a proceeding
before the United States District Court, Eastern District of

7

Arkansas, and the court further found that the trial judge and
Simmons’ counsel performed an exceptional job in examining
and exploring Simmons’ capacity to understand the choice
between life and death and his ability to know and to
intelligently waive any and all rights he might have in
an appeal of his sentence. In addition, Simmons’ counsel
thoroughly discussed seven possible points that could be
argued for reversal on appeal, and Simmons responded by
stating he understood those points and that he rejected all
encouragement and suggestions to appeal. Simmons v. Staie,
766 S.W.2d 423, Ark. (1989).

After this last ruling, as mentioned earlier, Respondent
Ronald Gene Simmons, Sr., was enjoying his last meal on the
15th day of March, 1989, prior to being executed at 7:00 a.m. on
the following morning, when he happened to notice the
monitor on the TV in the room, a news flash that the U.S.
Supreme Court had stayed his execution pursuant to an
application for stay of execution pending petition for writ of
certiorari to the Supreme Court of Arkansas, filed herein by
Petitioner Jonas H. Whitmore, individually and as next friend
of Ronald Gene Simmons. This stay of execution by the U.S.
Supreme Court was granted without any notice to respondent
Ronald Gene Simmons, Sr., and without any meaningful
opportunity for him to be heard on the issue.

Subsequent to that ruling by the High Court, the peti-
tioners in Simmons I filed a notice of appeal to the 8th Circuit
Court of Appeals, and thereafter, filed a motion for stay of
proceedings pending the outcome in the Simmons II case that
is presently before the U.S. Supreme Court. The State of
Arkansas, through its Attorney General's office, filed a
response essentially acquiescing that the proceedings in the
8th Circuit Court of Appeals in Simmons I should be stayed
pending the outcome of Simmons II before this court, and
again, without any notice to Respondent Ronald Gene

8

Simmons, Sr., and without any meaningful opportunity for
him to be heard, the 8th Circuit Court of Appeals issued its

order staying all of those proceedings pending the outcome of
Simmons II before the U.S. Supreme Court.

On July 3, 1989, the U.S. Supreme Court granted writ of
certiorari. On April 1, 1989, Simmons filed a motion to be
declared a party in the proceedings, which the Clerk later ruled
was unnecessary, and on August 2, 1989, Simmons and the
attorneys for the Siate of Arkansas filed a joint motion
requesting additional time and an opportunity for Simmons to
participate in the oral argument so that his personal interests
can be asserted prior to final resolution of this matter.

9
SUMMARY OF ARGUMENT

The bulk of petitioner's argument is grounded in three
cases, Gregg v. Georgia, 428 U.S. 153, 1976; Jurek v. Texas, 428
U.S. 262, 1976; and Proffitt v. Florida, 428 U.S. 242, 1976. But
what petitioner fails to recognize is that a later case is more
clearly decisive on the question of mandatory appeal, and that
case is Gilmore v. Utah, 429 U.S. 1012, 1976.

Petitioner attempts to characterize Arkansas as the only
state with a death penalty statute which does not by statute or
case law mandate a non-waivable appellate review of either the
conviction or the sentence imposed. However, the only case
going before the Supreme Court on this question was Gilmore.
Therefore, it is not clear whether any state in the nation has a
mandatory appeal that cannot be waived by a competent
defendant. Certainly, Arkansas has no prohibition against a
waiver if it is by a competent defendant who has made a
knowing and intelligent waiver under safeguards enumerated
by the law of the state.

Simmons does not believe that the Arkansas death penalty
statute is subject to being arbitrarily and capriciously imposed,
and he does not assert that it is in his case. However, the
numerous safeguards that are built into the statutory scheme in
Arkansas could better be addressed by the respondent State of
Arkansas in its brief. Simmons would suffice to say that as a
matter of fact, it has not been subject to being arbitrarily and
capriciously imposed in the State of Arkansas for the past
twenty-six years, because no one has been executed in Arkansas
during that period of time. ’

Allowing a waiver of appellate review in capital cases
under certain conditions is not contrary to public policy or
adverse to the rights of society. For the prisoner convicted and
condemned by society and restrained in a tiny cell with

10

practically no freedom, the option of termination of appeals
and being executed may represent the only opportunity to
exercise any personal choice in order to affect his or her fate.
For the abolitionist, this may be the most difficult aspect of the
problem, for granting the condemned person the right to bring
on death affronts their belief in the sanctity of human life. But
what must be remembered at all times is that the life involved is
the life of the prisoner. It is his or her life at stake, his or her
personal autonomy, and not that of the abolitionist. (Quoting
from Urofsky, A Right to Die, Termination of Appeal for
Condemned Prisoners, Vol. 75, No. 3, The Journal of Criminal
Law and Criminology, 553, 1984.)

Petitioner Whitmore does not have standing on any of the
traditional grounds, and he has failed to even allege grounds
for standing. Instead he asks this Court to grant an exception
and relax the requirements for standing so that the Court may
address what petitioner characterizes as the abridgement of
societal rights, and to remedy it, he says this Court should
grant standing to any citizen. To this, respondent Simmons
would argue that in the first place, societal rights are not being
abridged but are being served in this case; secondly, the
petitioner has no standing in this matter; and thirdly, citizens
generally should not be able to acquire standing as next friend
or otherwise in cases of this nature unless some bases exist for
their claims. To relax the standards as requested by the
petitioner would be to enlarge the jurisdiction of this Court in
direct violation of Article Three of the United States Consti-
tution opening the door to allow any citizen in any ca’pital case
to intervene and thwart the workings of the Court by claiming
next friend status.

11
ARGUMENT
IA

WHETHER THE EIGHTH AMENDMENT'S BAN
AGAINST CRUEL AND UNUSUAL PUNISHMENT
REQUIRES A MANDATORY APPELLATE REVIEW IN
ALL CASES IN WHICH THE DEATH PENALTY IS
IMPOSED.

In Whitmore v. State, 299 Ark. 55 (1989), Justice Tom
Glaze writing for the majority said:

[1] The Whitmore and Simmons cases are further
examples of a chain of Arkansas cases that reveal how
the state and federal judicial systems have permitted
applications for post-conviction remedies to get out of
control... .

Whitmore’s Rule 37 petition here and his intervention in
the Simmons case, now pending in the United States
Supreme Court, depict only one of the problems — albeit
an al.surd one — that the courts face when attempting to
bring an end to criminal cases once they arelaunched into
the procedural appellate and post-conviction maze. In his
post conviction petition now before us, Whitmore claims
that he did not receive a fair trial, because, among other
things, his trial attorney was ineffective. In support of his
argument, he contends his trial counsel failed to present
available evidence that Whitmore had a diminished
capacity when he killed his victim. Whitmore also points
to his lengthy psychiatric history as well as to his
alcoholism and incest and sexual abuse that occurred in
his family. In sum, Whitmore objects that his trial
counsel made no use of Whitmore’s psychiatric evidence
to show either diminished capacity as to his guilt or
mitigating circumstances at the penalty phase. Further,

12

Whitmore contends that he is presently insane. In
pursuing his petition before the United States Supreme
Court, Whitmore makes no mention whatsoever of his
pending petition in this court and the diminished
capacity claims that he asserts in the petition.

Obviously, if Whitmore has a diminished capacity or
psychiatric problem, how can he have standing to
intervene in behalf of Simmons? In Rees v. Peyton, 384
U.S. 312 (1966), the Supreme Court held that if a
defendant is determined to be competent, then a next
friend has no standing to pursue further proceedings

when the defendant chooses not to proceed. See Gilmore.

v. Utah, 429 U.S. 1012 (1976), where the Supreme Court
reversed the record bearing on Gilmore's competency and
decided his mother did not have standing to speak for
him. Here a state trial court, this court, and a federal
district court have either ordered psychiatric examina-
tions or reviewed those examinations and have concluded
Simmons has the capacity to waive his right to appeal or
refuse to pursue any claims he may have. Nonetheless, the
United States Supreme Court has allowed Whitmore,
who has placed his own mental capacity in issue in a
pending state proceeding, to intervene on behalf of
Simmons so that Whitmore can argue claims Simmons
steadfastly waives and refuses to raise. If the judicial
system is to maintain integrity, we can ill afford to permit
such a willful and improper manipulation of post-
conviction procedures by a defendant.

The case before this Court could more accurately be
capuoned as, “Abolitionists vs. Capital Punishment.” The
arguments advanced by the petitioner, and many of the
responses brought on by necessity by the respondents, in reality
will have very little todo with Mr. Whitmore or Mr. Simmons.
It would appear that they may not be relevant to these
proceedings, and a question still remains whether Mr.

13

Simmons isa party, and if he is a party or not, will he be able to
argue his side in this matter. If Simmons were allowed to argue
these weighty notions raised by petitioner, Sinmmons’ argu-
ment would be that common sense should prevail; that the
Court should go back to the basics of stare decisis, because both
of the points raised by petitioner, mandatory appeal and
standing, have heretofore been decided against petitioner in a
single case, Gilmore v. Utah, 429 U.S. 1012 (1976). The bulk of
petitioner’s argument is grounded in three cases: Gregg v.
Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262
(1976); and Proffitt v. Florida, 428 U.S. 242 (1976). But what
petitioner fails to recognize is that a later case is more clearly on
point, as determinative of the issues that petitioner wants to
raise on this appeal. That case is Gilmore, which should be
binding precedent that anyone else could follow and rely
upon. The only distinction between the Gilmore case and the
Simmons case is that the petitioner does not question
Simmons’ competency, and could not, since Mr. Simmons’
competency has been determined recently by three inde-
pendent court evaluations. Simmons v. State, 766 S.W.2d 423
(Ark., March 10, 1989).

Petitioner contends that Gilmore is not dispositive of the
issue of mandatory appeal but is instead relevant only to the
issue of third party standing.

Gilmore was a landmark decision. The abolitionists had
been successful in abolishing capital punishment for a decade
or more, and then Gilmore came along, willing to waive his
rights to appeal his conviction, willing to waive any flaws
in the trial procedures below, willing to waive even the
constitutionality of a statute under which he was convicted, at
a time when there were serious questions about the consti-
tutionality of the Utah statute, and,even some concern about
Gilmore's competency. In spite of this, the U.S. Supreme
Court allowed Mr. Gilmore to forego any appeal of his
conviction, and in fact, be executed. Now the petitioner

14

contends that the Arkansas Supreme Court and the respondent
State of Arkansas have misinterpreted both the issues of
Gilmore and its precedential value on the question of
mandatory appeal.

After a full reading of the text of the Gilmore decision, the
only basis for petitioner's argument in that regard is Chief
Justice Burger’s comments:

In his dissenting opinion, Mr. Justice White suggests that
Gary Mark Gilmore is unable, as a matter of law, to waive
the right to state appellate review. Whatever may be said
as to the merits of this suggestion, the question simply is
not before us. Gilmore, duly found to be competent by the
Utah courts, has had available meaningful access to this
Court, and has declined expressly to assert any claim here,
other than his explicit repudiation of Bessie Gilmore's
effort to speak for him as next friend. It follows therefore
that the Court is without jurisdiction to consider the
question posed by the dissent. P

When Chief Justice Burger said the question (of man-
datory appeal) is simply not before us, is perhaps subject to
different interpretations. Petitioner's interpretation is that the
Gilmore case is not dispositive on the issue of mandatory
appeal. However, if the four Justices dissenting could have
mustered one more Justice on their side of the argument, the
holding of the case would have been that Gary Mark Gilmore
was unable as a matter of law to waive the right to state
appellate review, and the petitioner's argument then would
have been that the Gilmore case is totally dispositive of the
issue of mandatory appeal, and is good precedent and should
be followed.

There is yet another argument why the Gilmore case is
dispositive on the issue of mandatory appeal. Mr. Chief Justice

“—?

15

Burger writing for the majority said:

After examining with care the pertinent portions of the
transcripts and reports of state proceedings, and the
response of Gary Mark Gilmore filed on December 8, Iam
in complete agreement with the conclusion expressed in
the Court's order that Gary Mark Gilmore knowingly and
intelligently, with full knowledge of his right to seek an
appeal in the Utah Supreme Court, has waived that right.

Question: How can you waive that right to appeal if ‘‘the
Eighth Amendment’s ban against cruel and unusual punish-
ment requires a mandatory appellate review in a death penalty
case which cannot be waived by the defendant’? The majority
decision in the Gilmore case in determining that he had waived
his right to appellate review is stating, at least by implication,
that the Constitution allows for such a waiver. If the majority
felt otherwise, they could have denied Gilmore’s attempted
waiver, with or without Bessie Gilmore’s next friend appli-
cation. So the Gilmore case is not just a question of standing as
advocated by the petitioner. It is binding precedent on the
question of mandatory appeal and it is good precedent on the
issue of standing, and to this day, the Gilmore decision has
never been overruled. It reflects contemporary standards of
decency in our changing society by recognizing that even a
murderer has certain rights and dignities, and freedom of
choice, and that no third party, no matter how noble their
intentions, should be allowed to decide what course of action is
best for a particular individual, notwithstanding that indi-
vidual’s contrary views.

16

A MANDATORY APPELLATE REVIEW OF DEATH
PENALTY CASES IS NOT NECESSARY TO REFLECT
CONTEMPORARY STANDARDS OF DECENCY.

Petitioner blatantly states that “Arkansas is the only state
with a death penalty statute which does not by statute or case
law mandate a non-waivable appellate review of either the
conviction or the sentence imposed.” This assertion, although
unfounded and not properly documented, begs the question.
The question is, “Can any state, by statute, case law, or
otherwise, mandate a non-waivable appellate review of either
the conviction or the sentence imposed in a death penalty
case?’’, and the only answer is, that Utah did not in 1976. See
Gilmore. Respondent Simmons would dispute the assertion
that these other states have mandatory appeals that cannot be
waived in a death penalty case, and even if they did have sucha
rule, it could not be asserted as petitioner is attempting to do
so, until such time as that state’s rule were tested before the U.S.
Supreme Court for its constitutionality. Respondent Simmons
is not awaré of any of these other states referred to by petitioner
as ever having gone before the U.S. Supreme Court to uphold
the constitutionality of such a mandatory rule, and respondent
Simmons would contend that if and when one of those states
has a proper occasion to test any purported mandatory appeal,
the U.S. Supreme Court will strike the rule down as being
unconstitutional to a capital defendant, as being violative of a
capital defendant's constitutional rights, of religion under the
First Amendment, of the right of privacy in the “liberty”
protected by the due process clause of the Fifth and Fourteenth
Amendments and possibly the Ninth Amendment conceived as
a rule against cramped construction, or from the privileges and
immunities clauses of Article IV and of the Fourteenth
Amendment. Encompassing rights to shape one’s inner life
and rights to control the face one presents to the world, they

17

have materialized like holograms from the ‘‘amanations”’ and
‘“‘penumbras”’ most recently dubbed the ‘‘shadows of the First,
Third, Fourth, and Fifth Amendments’’. They elaborate the
“blessings of liberty’’ promised in the Preamble, and have been
held implicit in the Eighth Amendment's prohibition against
cruel and unusual punishments. (Quoting in part from
Professor Tribe, p. 613, Southern California Law Review,
Vol. 54.)

IC

WHETHER THE ARKANSAS DEATH PENALTY
STATUTE IS SUBJECT TO BEING ARBITRARILY AND
CAPRICIOUSLY IMPOSED IN THE ABSENCE OF
MANDATORY APPELLATE REVIEW.

Simmons does not believe that the Arkansas death penalty
statute is subject to being arbitrarily and capriciously imposed,
and he does not assert that such is the case. Simmons believes
that the respondent State of Arkansas can better address this
point being raised by petitioner, because respondent State of
Arkansas is more familiar with all of the procedures and
safeguards that are included in the statutory scheme for
administering the death penalty than is respondent Simmons.

However, Simmons would contend that the Arkansas
death penalty statute has not been subject to being arbitrarily
and capriciously imposed in the absence of mandatory review
for the past twenty-six years, because as a matter of fact, no one
has been executed in Arkansas for the past twenty-six years,
and according to a recent U.P.I. release from the Bureau of
Justice statistics, an arm of the Justice Department, it is
reported that only twenty-five people were executed in eight
states in 1987, the most since the Supreme Court reinstated the
death penalty in 1976, and as of December 1, 1988, a record of
1,984 offenders were on death row in thirty-four states.

18

Obviously from these statistics, capital punishment has not
been arbitrarily and capriciously imposed in Arkansas or in the
nation in the absence of mandatory appellate review.

ID

ALLOWING A WAIVER OF APPELLATE REVIEW IN
CAPITAL CASES UNDER CERTAIN CONDITIONS IS
NOT CONTRARY TO PUBLIC POLICY OR ADVERSE
TO THE RIGHTS OF SOCIETY.

In Urofsky, A Right to Die: Termination of Appeal for
Condemned Prisoners, Vol. 75, No. 3, The Journal of Criminal
Law & Criminology, 553, 1984:

Although the death sentence is “qualitatively different
from a sentence of imprisonment” as the Supreme Court
has recognized, the doctrine of waiver in this area is
derived substantially from general rules of waiver in
criminal cases. Under early common law doctrine, an
accused could not waive any rights intended for his
protection. Later, he was allowed to waive those personal
to himself, but not those in which the state maintained
an interest. Currently, if there is no constitutional or
statutory prohibition, or any public policy involved, an
accused may waive any privilege. (See Schick v. United
States, 195 U.S. 65, 71 [1904].) Page 562...

If it is agreed that current law allows condemned
prisoners to terminate their appeals, it must nonetheless
be noted that opponents of capital punishment believe
that they should not be allowed to do so. The most
common argument is that acquiescence in the sentence
amounts to state-abetted suicide. In his dissent in Bishop,
Justice Marshall, who has consistently argued, albeit
unsuccessfully so far, that the death sentence is uncon-
stitutional under the Eighth Amendment, charged that

19

“the Court has permitted the State’s mechanism of
execution to be triggered by an entirely arbitrary factor:
the defendant's decision to acquiesce in his own death.
In my view, the procedure the Court approves today
amounts to nothing less than state-administered suicide.”’
For abolitionists, the death penalty is “‘no less [barbarous ]
on those occasions when a murderer welcomes his own
legal execution” than when the prisoner involuntarily
goes to death. . . . For an abolitionist, there is apparently
no middle ground; any execution by the state must be
resisted. Pp. 565-566.

If one looks more closely at these arguments and examines
them in the light of both legal and ethical considerations,
their surface logic fails. First, ever since Gary Gilmore
ended a ten-year moratorium on executions in this
counuy, each new execution has brought dire warnin’s of
an impending national bloodbath. Certainly with nearly
thirteen hundred persons on death row and a net addition
of approximately one hundred each year, the nation
would have to execute ten persons a week for three years
just to catch up with the backlog. But the facts show that
despite indications of a growing dissatisfaction with
endless appeals, the courts continue to insist on indi-
vidualized evaluations of each case. Even Bedau concedes
that the “avalanche” has failed to materialize. Unless
and until firm evidence is presented that voluntary
termination of appeal does in fact affect the rights ofother
prisoners, there should be no restrictions on these persons

that prevent them from exercising their rights. Page
SOG dict

If, as the abolitionists argue, capitai punishment is an
inhumane deprivation of rights as well as a degradation
of the individual, then why should not death row inmates
be allowed — if they themselves so choose — to accept
their punishment with dignity? It is certainly ironic that

20

in the Gilmore case, the American Civil Liberties Union
passionately fought to prevent the execution of a
convicted murderer who wished to die, claiming that
Gilmore had no right to do so. It then turned around and
argued that a right to die existed for Karen Ann Quinlan,
who was unable to express her wishes one way or the
other. Page 568...

The Supreme Court has never addressed the issue of
suffering attached to the death sentence aside from the
actual mode of execution, and that case came down in
1890 when the Court approved the use of the electric chair.
Punishments are cruel, held the Court, “when they
involve torture or a lingering death; but the punishment
of death is not cruel, within the meaning of that word as
used in the Constitution. It implies something inhuman
and barbarous, something more than the mere extinguish-
ment of life.’’ Not until 1958, in a non-death penalty case,
did the Court hold that a person’s humanity must be
respected regardless of guilt or crime. Abolitionists
consider capital punishment in itself violative of the
Eighth Amendment, but even those who favor the death
penalty ought to concede that months or years on death
row is certainly ‘“‘more than the mere extinguishment of
life.” If one is going to argue that even condemned
murderers retain some spark of humanity, some rights of
individual autonomy, then something must be done to
either improve death row conditions, or permit those who
wish to terminate that existence through execution of
sentence the right to do so. Page 573. . .

For the prisoner, convicted and condemned by society and
restrained in a tiny cell with practically no freedom, the
option of terminating appeals and being executed may
represent the only opportunity to exercise any personal
choice in order to affect his or her fate. For the abolli-
tionists, this may be the most difficult aspect of the

21

problem, for granting the condemned person the right to
bring on death affronts their belief in the sanctity of
human life. But what. must be remembered at all times is
that the life involved is that of the prisoner; it is his or her
life at stake, his or her personal autonomy, and not that of
the abolitionist. Pp. 578-579.

Quoting from Johnson, The Death Row Right to Die:
Suicide or Intimate Decision? 54 Southern California Law
Review, 575 (1981):

In order to be considered suicide, the victim must also
actively set the death producing agent in motion. The
terminal patient, to the extent that his physical condition
results from natural causes and is not self-induced,
certainly cannot be classified as suicidal because he
refuses further treatment. Neither can the capital defend-
ant, who may have committed murder for many other
reasons, be said to have put himself on death row in an
attempt at self-destruction. Society, represented by a jury
of his peers, concluded that the prisoner deserved to die;

he had no control over the outcome of their deliberations.
Pp. 617-618.

What right does petitioner Jonas H. Whitmore have to
unilaterally interject himself into Mr. Simmons’ case and
thereby deny Mr. Simmons the basic personal right of choice
and to further subject Mr. Simmons to the prolonged agony
and suffering brought about by these unreasonable and
unwanted delays? The obvious answer is that Mr. Whitmore
does not have that right.

In his brief, petitioner attempts to chastise Simmons’
attorneys, trial judge, and perhaps by implication the Arkan-
sas Supreme Court, Federal District Judge G. Thomas Eisele,
and court-appointed expert, auorney John Wesley Hall, when
petitioner raises these questions: ‘“‘Who has informed Mr.

~~

Simmons of trial error: his attorneys? Who advocates his death?
The trial judge who, presumably, ruled on the questions of
evidence? And who has informed Mr. Simmons as to whether
he received effective assistance of counsel at the trial?”’
In raising these questions, petitioner ignores the apparent
answers which are noted throughout the voluminous record
that was established in both Simmons I and Simmons II.

Specifically, in Simmons | after the trial court had already
conducted two or more hearings and declared Simmons to be
competent and that he had knowingly and intelligently waived
his rights to appeal, thereafter the Arkansas Supreme Court
made its review, and determined that Simmons was competent
and that he knowingly and intelligently waived his rights to
appeal, but more particularly thereafter, Federal District Judge
G. Thomas Eisele ordered Mr. Simmons to undergo additional
psychiatrict evaluation at a federal institution and ordered a
court clerk to prepare a complete transcript of the entire trial
record and appointed attorney John Wesley Hall as an expert
on constitutional criminal law, to review the entire record and
meet with and counsel with Simmons to personally advise him
independently of his rights to appeal and the grounds therefor,
and his federal habeas corpus rights. Thereafter, Attorney Hall
filed a very extensive seventy-four page report to advise
respondent Simmons on appealable issues in his May 1988
death sentence, and nowhere in that report is there any finding
of ineffective assistance of counsel, and Mr. Simmons has never
asserted any ineffective assistance of counsel, and neither
Federal District Judge G. Thomas Eisele, nor the Arkansas
Supreme Court, nor the trial court below has ever found any
basis for ineffective assistance of counsel.

In Simmons v. State of Arkansas, 766 S.W.2d 423 (Ark.
1989), the Arkansas Supreme Court stated in its per curiam
order:

The trial judge and petitioner's (Simmons’) counsel

*
oo 8 ee . -

23

performed an exceptional job in examining and explor-
ing the petitioner’s capacity to understand the choice
between life and death and his ability to know and to
intelligently waive any and all rights he might have in an
appeal of his sentence. In addition, petitioner's counsel
thoroughly discussed seven possible points that could be
argued for reversal on appeal, and petitioner responded
by stating he understood those points and that he rejected
all encouragement and suggestions to appeal.

In Lenhard v. Wolff, 603 F2d 91 (1979), the Court held that
court-appointed counsel had no standing as an accused’s next
friend to file petition for writ of habeas corpus and application
for stay of execution of sentence imposed on accused in. the
absence of some showing that accused lacked capacity to
pursue relief in federal court; and, in Hamblin v. State of
Florida, 527 So.2d 800 (1988), the court held:

Hamblin had a constitutional right to represent himself,
and he was clearly competent to do so. To permit counsel
to take a position contrary to his wishes through the
vehicle of guardian ad litem would violate the dictates of
Faretta. In the field of criminal law, there is no doubt that
“death is different,’ but, in the final analysis, all
competent defendants have a right to control their own
destinies.

“Generally, there is no constitutional right to appeal a
conviction.” See McCain v. Durston, 153 U.S. 684 (1894). This
cited authority appears in the recent case of Murray v.
Giarratano, ___ U.S. —_ (88-411, June 23, 1989). Therefore, if
there is presently no constitutional right to appeal a con-
viction, how can there be a constitutional prohibition against
waiving an appeal?

24
Il

WHETHER A THIRD PARTY HAS STANDING TO
ASSERT THE CONSTITUTIONAL RIGHTS WHEN THE
PARTY DIRECTLY AFFECTED DOES NOT ASSERT
THE RIGHT?

Petitioner Whitmore does not have standing on any of the
traditional grounds, and he has failed to even allege grounds
for standin,;. Instead, he asks this Court to grant an exception
and relax the requirements for standing so that the Court may
address what petitioner characterizes as the abridgement of
societal rights, and to remedy this, he says this Court should
grant standing to any citizen. To this, respondent Simmons
would argue that in the first place, societal rights are not being
abridged, but are being served in this case. Secondly, the
petitioner has no standing in this matter; and thirdly, citizens
generally should not be able to acquire standing as next friend
or otherwise in cases of this nature, unless some bases exist for
their claims. To relax the standards as requested by the
petitioner would be to enlarge the jurisdiction of this Court in
direct violation of Article Three of the United States Consti-
tution. And if petitioner Whitmore were granted standing in
this case, the Court would be opening the door to allow any
citizen in every capital case to intervene and thwart the
workings of the Court by claiming next friend status.

Also, to grant petitioner next friend status in the Simmons
case, this Court would clearly have to overrule the findings in
the Gilmore case, because even the petitioner cites the Gilmore
case as being controlling authority on the question of
standing. In Gilmore, Mr. Chief Justice, writing for the
majority stated: .

When the application for a stay was initially filed on
December 2, a serious question was presented as to
whether Bessie Gilmore had standing to seek the re-

ee

eer =

25

quested relief or any relief from this Court. Assuming the
Court would otherwise have jurisdiction with respect toa
“next friend” application, that jurisdiction would arise
only if it were demonstrated that Gary Mark Gilmore is
unable to seek relief in his own behalf. See Rosenberg v.
United States, 346 U.S. 273, 291, 97 L.Ed. 1607, 73 S. Ct.
1152 (1953) (separate opinion of Jackson, J., joined by five
Members of the Court). However, in view of Gary Mark
Gilmore's response on December 8, 1976, it is now clear
that the ‘‘next friend” concept is wholly inapplicable to
this case. Since Gary Mark Gilmore has now filed a
response and appeared in his own behalf, through his
retained attorneys, any basis for the standing of Bessie
Gilmore to seek relief in his behalf is necessarily
eliminated.

Petitioner also claims to be a citizen of the State of
Arkansas, but offers no proof on this point other than the
allegation that he is presently confined on death row in
Arkansas prisons. Respondent Simmons would contend that
petitioner Whitmore is not a citizen of the State of Arkansas,
and where petitioner Whitmore claims to have standing to
assert a constitutional violation as it directly involves rights
afforded to him by the State of Arkansas and his interest to have
the Simmons case in the data base for comparative review in his
death penalty case, respondent Simmons would contend that
petitioner Whitmore has already had his case affirmed on
direct appeal (Whitmore v. State, 296 Ark. 308 756 S.W.2d 890
[1988]), and further, has had his Rule 37 petition denied
(Whitmore v. State, 299 Ark. 55 [1989]). Also see Pulley v.
Harris, 465 U.S. 37, 79 L..Ed.2d 29, 104 S. Ct. 871 (1984), where
this Court held:

There is thus no basis in our cases for holding that
comparative proportionality review by an appellate court
is required in every case in which the death penalty is
imposed and the defendant requests it. Indeed, to so hold

26

would effectively overrule Jurek and would substantially
depart from the sense of Gregg and Proffitt. We are not
persuaded that the Eighth Amendment requires us to take
that course.

Quoting from Johnson, The Death Row Right to Die:
Suicide or Intimate Decision? 54 S. Cal. Law Review, 575
(1981):

Although next friend proceedings have been specifically
approved in cases of infancy, incompetency, or lack of
time, the death row inmate’s desire to be executed,
coupled with his refusal to appeal, cannot alone confer
standing upon a next friend that a party would not
ordinarily have under recognized principles. A showing
of the capital defendant's incompetence must be made.
(See Gilmore). . .

When the date of execution is imminent, next friends will
usually be successful in obtaining temporary stays of
execution, pending a determination of the defendant's
competency and ability to represent his own interests.
Such a stay, however, will not be continued after the
condemned prisoner has been found competent to waive
appellate review of his death sentence. (Citing Lenhard v.
Wolff), Pp. 584, 585.

Next friends will usually be successful in obtaining
TEMPORARY STAYS OF EXECUTION, and here lies the
problem for the death row inmate, the state, society, victims of
crime, and the public generally who believe in the fair and
expeditious enforcement of capital punishment. In the past,
not by law, but by practical application, a temporary stay has
been virtually automatic upon the request of anybody
claiming, rightly or wrongly, next friend status, and with the
apparently endless cycle of appellate litigation on capital

a ee ae en

——

27

cases, a temporary stay can easily translate into a decade or
more, but the worst evil of this procedure has never been
addressed, and probably never will, because it is always a moot
question. The question is, ‘What remedy, if any, does a death
row inmate have when his constitutional rights are violated by
some interloper claiming next friend status?”’ Clearly, peti-
tioner Whitmore could not have taken Simmons’ car or any of
his property, liberty, or life, without due process of law under
the Fifth Amendment of the United States Constitution. Due
process of law is generally considered to be notice and a
reasonable opportunity to be heard before the action is taken
against you. In every instance in this case where the court has
granted a stay of execution, first the Arkansas Supreme Court;
second Federal District Court; third the Eighth Circuit Court
of Appeals; and fourth the U.S. Supreme Court; each and every
time this was done to Mr. Simmons without any notice to
Mr. Simmons, and without any opportunity for him or his
attorneys to be heard on the question, and as a direct result of
these unwanted stays of execution being granted, this has
caused Mr. Simmons by his own admission to suffer unneces-
sarily in clear violation of his Eighth Amendment rights
against cruel and unusual punishment. Each and every time
Mr. Simmons attempted to complain about this in the court
processes below, it was always disregarded as a moot question
because the stay had already been granted. Surely now, before
this Court of last resort, this Court will take cognizance of
respondent Simmons’ complaint about the violations of his
constitutional rights as inflicted by petitioner Whitmore and
others who have wrongfully characterized themselves as ‘“‘next
friends’. There is precedent for a court addressing what would
otherwise be classified as a moot question. Jn re Estate of
Brooks, 32 Il. 2d 361, 205 N.E.2d 435 (1965), in this “landmark
case upholding a patient’s right to refuse treatment on
religious grounds, Mrs. Brooks, a Jehovah's Witness, refused
to accept blood transfusions necessary for her survival on the
ground that the tenets of her faith forbade such procedures.

28

Although transfusions had already been administered pur-
suant to the trial court's order, the Supreme Court of Illinois
still chose to consider the issues involved as they were of
substantial public interest. In condemning the trial court's
action as a clear violation of the patient's religious freedom,
the Illinois Supreme Court distinguished Brooks from other
cases in which the state’s interest in protecting the life of an
unborn child, as well as in safeguarding the health and welfare
of minor children, were sufficiently compelling to justify
forced transfusions. Mrs. Brooks was not pregnant, had no
minor children to care for, and did not, by her actions, present
any ‘clear and present danger’ to society's welfare.”

Respondent Simmons respectfully asks this Court to
address this question in the case before it.

In Rosenberg v. United States, 346 U.S. 273 (1953),

A total stranger to Julius and Ethel Rosenberg filed a next
friend petition for stay of execution of the defendants’
death sentences, which was temporarily granted. Justice
Jackson, in a concurring opinion, discussed the potential
for abuse inherent in next friend standing:

“Every lawyer familiar with the workings of our criminal
courts. . . will agree that this precedent presents a threat
to orderly and responsible representation of accused
persons and the right of themselves and their counsel to
control their own cases. ... That such disorderly
intervention is more likely to prejudice than to help the
representation of accused persons in highly publicized
cases is self evident. We discountenance this practice.”

In the present case, petitioner Whitmore has no standing
to intervene, and this Court therefore is lacking in jurisdiction.
And the question of mandatory appeal was decided in Gilmore

29

thirteen years ago, and it has never been overruled. Allowing a
prisoner some degree of autonomy and dignity and personal
choice in these matters is not against society's interest but in

furtherance of it. Therefore, petitioner's request should be
denied.

30

CONCLUSION

For the reasons and authorities cited above, the decision of
the Arkansas Supreme Court should be affirmed.

Respectfully submitted,

JOHN Harris

ATTORNEY AT LAw

Suite 110, 500 BUILDING
RUSSELLVILLE, AR 72801

(501) 968-3009

Member of the Bar of the Court

and,

Rosert E. IRWIN
ATTORNEY AT LAw

P. O. Box 444
RUSSELLVILLE, AR 72801
(501) 968-3595

Attorneys fos Respondent,
Ronald Gene Simmons, Sr.

CERTIFICATE OF SERVICE

I, John Harris, hereby certify that the annexed Brief for the
Respondent Ronald Gene Simmons, Sr., has been timely filed,
pursuant to Rules 30 and 35 of the Rules of this Court by
sending a copy via first class mail, postage pre-paid, addressed
to the Clerk of this Court.

I further certify that I served the said Brief on Petitioner by
placing a copy in the United § tates Mail, postage prepaid, to:
Arthur L. Allen, Attorney at Law, Allen & O’Hern, First
Commercial Building, 400 West Capitol, Suite 1700, Little
Rock, AR 72201; and that I served the said Brief on Respondent
State of Arkansas by placing a copy in the United States Mail,
postage prepaid, to: The Hon. Steve Clark, Attorney General
of Arkansas, Tower Building, Suite 200, Fourth & Center
Streets, Little Rock, Arkansas 72201, on the 22nd day of
September, 1989.

/s/ John Harris
Attorney for Respondent
Ronald Gene Simmons, Sr.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0557%3A07. Public record. Not legal advice.