Amicus Curiae Brief — Whitmore v. Arkansas

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No. 88-7146

In The JOSEPH F. SPANIOL,

. CLERK

Supreme Court of the United St

October Term, 1989

—e—

JONAS H. WHITMORE,

Individually and as “Next Friend”

of RONALD GENE SIMMONS,

Petitioner,

vs.

STATE OF ARKANSAS, et al.,

Respondents.

oe

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARKANSAS

—_——

BRIEF OF AMICI CURIAE BY THE

STATE OF MISSOURI, joined by the States

of ALABAMA, IDAHO, NEW MEXICO, OHIO,

SOUTH CAROLINA and VIRGINIA

—_—_@—

WILuIAM L. WEBSTER

Attorney General

JoHN M. Morris

Assistant Attorney General

STEPHEN D. HAWKE

Assistant Attorney General

Counsel of Record for Amicus Curiae

State of Missouri

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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?

Il.

WHETHER A THIRD PARTY HAS STANDING TO

ASSERT THE VIOLATION OF CONSTITUTIONAL

RIGHTS WHEN THE PARTY DIRECTLY AFFECTED

DOES NOT ASSERT THE RIGHT? (AMICI WILL

ADDRESS ONLY THIS QUESTION.)

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........---0eeeeeeeeee i

TABLE OF CONTENTS..........-----eeeeeeeeeeeee ii

TABLE OF AUTHORITIES............---00eee+0e: iii

INTEREST OF AMICI CURIAE ..............+++++ 1

SUMMARY OF THE ARGUMENT ..........------- 1

ARGUMENT . ...0ccccccccsstccccscvsccesessvoscess 2

I. Whitmore cannot demonstrate that he has

“next-friend,” individual or third-party

Standing .........-eeeeeeeccceccccceeecceees 3

A. Whitmore alleges only individual and

third-party standing, not “next-friend”

standing........... oovegeccccetabensere 4

B. Whitmore does not have individual

standing or third-party standing to assert

a criminal direct appeal from Simmons’

CONVICTION ...... cc crcccccccccccccceces 6

1. Whitmore has no individual standing

2. Whitmore is not entitled to third-

party standing ............-++++++ 11

C. Supreme Court review of the Eighth

Amendment claim is precluded by an ade-

quate and independent state ground ..... 13

CONCLEMSIOIN ..0.. cc ccccctdccscusesvcvessaseeuteess 15

APPEIGIIEN «wooo ccccccccsccseccsccesssbessccuseenen A-1

iii

TABLE OF AUTHORITIES

Pages

Craig v. Boren, 429 U.S. 190 (1976) ......------e+ees 12

Evans v. Bennett, 440 U.S. 1301 (1979) (Rehnquist,

J., opinion in chambers) ........-----+++e+ee+eeeee> 4

Flast v. Cohen, 392 U.S. 83 (1968)...........-252055 a?

Franz v. Lockhart, 700 F.Supp. 1005 (E.D.Ark. 1988),

appealed, No. 89-1485EA (8th Cir.)..........-. 6, 9, 14

Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) .. .3, 6

Gilmore v. Utah, 429 U.S. 1012 (1976)..........-+--. 1,2

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91

EERO GLDGbGhesvagaccsesTeccesccoscceces: 10

Gregg v. Georgia, 428 U.S. 153 (1976) ........-+--+++-- 2

Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949

CREED, Te. BODE) .... ccc cc cccccccccccccvccccces: 2

Lenhard v. Wolff, 443 U.S. 1306 (1979) (Rehnquist,

J., opinion in chambers) .........+---++++e0eeeeeee: 4

Michigan v. Long, 463 U.S. 1032 (1983).....-..-.-++-. 13

O'Shea v. Littleton, 414 U.S. 488 (1974)............-. 7,9

Rees v. Peyton, 384 U.S. 312 (1966) .......-..---++ 4, 6

Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.), cert.

- denied, 473 U.S. 919 (1985) ...... 6... cece cere ee eee ee 2

Secretary of State of Maryland v. Joseph H. Munson

Co., 467 U.S. 947 (1984)........ 2. cee ee eee eee 12

Singleton v. Wulff, 428 U.S. 106 (1976)...... 3, 4, 11, 12

Smith ex rel. Missouri Public Defender Commission v.

Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied,

EE Is scccccccssccccovcsscececess 2, 4

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669 (1973) .... 11

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464

EE -. cE ceevdd dus eeeesisdeddavoesccsbeoecs 8, 10, 11

Weber v. Garza, 570 F.2d 511 (1978).........---e ee eee 2

Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890

Ps dg ccd ddticddy bene det ee veuve seuss Ce owes ese )

Wilson v. Lane, 870 F.2d 1250 (7th Cir. 1989), cert.

pending, No. 89-81 (US.).......-0-eeee cere eee e eee: 3

STATUTES

2B UG.C. © FBEZ... co cccccdcccccccccccccccccsccesccess 4

SECONDARY SOURCES

LDF, Death Row, U.S.A. (July, 1989)............+++: os

INTEREST OF AMICI CURIAE

The states listed in the Appendix, by and through

their respective Attorneys General, respectfully offer this

brief as amici curiae in support of the position of the

respondents in this cause. Since 1976, there have been

fourteen “voluntary executions” which is over ten per-

cent of the total number of executions. See, LDF, Death

Row, U.S.A. 6-8 (July, 1989). All of the states joining in

this brief have had, do have or may have in the future

death-row inmates in state or federal court who wish to

forego litigation. These states have had or will have peo-

ple who oppose the death penalty attempt to litigate on

behalf of those inmates.

The precise issue raised in the present cause either

has arisen or may arise in all of these states. For this

reason, amici have a substantial and continuing interest

in the cases such as the one at bar.

—_o—

SUMMARY OF THE ARGUMENT

Since Gilmore v. Utah, 429 U.S. 1012 (1976), the federal

courts have periodically been asked to decide whether

intervenors who want to litigate on behalf of inmates

who wish to abandon appeals have standing to litigate on

behalf of those death-row inmates. Petitioner Whitmore

suggests that he has standing to litigate the present peti-

tion for writ of certiorari on an “individual standing”

theory and “third-party standing” theory. Whitmore,

however, fails to demonstrate either form of standing.

Since Whitmore suffers no injury-in-fact from Simmons’

execution, he has no individual standing. Further,

Whitmore has no third-party standing since he does not

show why Simmons cannot assert his own rights. Accor-

dingly, this Court has no jurisdiction under Article III

since there is no “case or controversy” before the Court.

Finally, the judgment of the Arkansas Supreme Court

rests on an adequate and independent state ground. Even

if Whitmore has standing before the federal court under

Article III, he had no standing in state court as a matter of

state law.

>

ARGUMENT

In this brief, amici wish to speak only to the second

question presented by Whitmore. Since Gregg v. Georgia,

428 U.S. 153 (1976), there have been fourteen “voluntary

executions.” See, LDF, Death Row, U.S.A. 6-8 (July, 1989).

These executions have created almost as much litigation

as nonvoluntary executions. See, e.g., Gilmore v. Utah, 429

U.S. 1012 (1976); Rumbaugh v. Procunier, 753 F.2d 395 (5th

Cir.), cert. denied, 473 U.S. 919 (1985). There is also much

“next-friend” litigation that does not result in execution.

See, e.g., Smith ex rel. Missouri Public Defender Commission

v. Armontrout, 812 F.2d 1050 (8th Cir.), cert. denied, 107

S.Ct. 3277 (1987); Weber v. Garza, 570 F.2d 511 (1978);

Groseclose ex rel. Harries v. Dutton, 594 F.Supp. 949 (M.D.

Tenn. 1984). The issue of standing for one to proceed on

behalf of a death-row litigant who wishes to abandon

litigation has been or may be the subject matter of litiga-

tion involving amici.

Although Whitmore articulates and treats the stand-

ing issue as a secondary question, amici believe that it is

not a secondary issue, but rather, a threshold question

that implicates this Court’s Article III “case or contro-

versy” jurisdiction. Flast v. Cohen, 392 U.S. 83, 94-101

(1968). If the Article III jurisdictional standard is met,

there remains the issue of whether the Court should hear

the suit “as a prudential matter.” Singleton v. Wulff, 428

U.S. 106, 112 (1976). If Whitmore has no standing before

this Court, then the judgment of the Arkansas Supreme

Court should be affirmed.

I. Whitmore cannot demonstrate that he has “next-

friend,” individual or third-party standing.

Whitmore’s belief that standing is a secondary issue

is reflected in his presentation of this issue to this Court.

Before discussing Whitmore’s imprecision in presenting

the issue, it is necessary to discuss the difference between

individual standing, “next-friend” standing and third-

party standing.

Individual standing concerns the ability of Whit-

more, as an individual, to challenge the lawfulness of

Arkansas’s capital procedure. Under individual standing,

Whitmore is not asserting Simmons’ constitutional rights.

Rather, Whitmore attempts to assert his own personal

challenge to the lawfulness of the Arkansas procedure

due to an alleged injury to him from that procedure as

applied to Simmons. An example of this individual stand-

ing was asserted but rejected in Wilson v. Lane, 870 F.2d

1250, 1254-1256 (7th Cir. 1989), cert. pending, No. 89-81

(U.S.). See also, Franz v. Lockhart, 700 F.Supp. 1005, 1010

(E.D.Ark. 1988), appealed, No. 89-1485EA (8th Cir.).

This Court recognized “next friend” standing with

federal habeas corpus litigation in Rees v. Peyton, 384 U.S.

312 (1966). That form of standing is statutorily avthorized

by the Congress. 28 U.S.C. § 2242. With “next friend”

standing, the “next friend” asserts the real party-in-inter-

est’s rights due to an inability of the real party-in-interest

(the prisoner) to assert those rights for himself. In the

habeas corpus litigation, that inability is usually litigated

in the form of whether the prisoner is competent to

litigate in his own behalf. See, Lenhard v. Wolff, 443 U.S.

1306, 1308 (1979) (Rehnquist, J., opinion in chambers);

Evans v. Bennett, 440 U.S. 1301 (1979) (Rehnquist, J., opin-

ion in chambers); Smith ex rel. Missouri Public Defender

Commission v. Armontrout, 812 F.2d at 1050. In these “next

friend” habeas corpus litigations, the “next friend”

wishes to step into the shoes of the offender and litigate

claims for the offender, subject to defenses asserted by

the State.

Finally, Whitmore attempts to assert the rights of

Simmons under a third-party standing theory (Brief, pp.

22-25). To assert third-party standing, Whitmore must

show an injury-in-fact to himself from Simmons’ failure

to appeal and that it is prudential to allow Whitmore to

proceed, i.e., that Simmons is incapable of asserting his

own rights. Singleton v. Wulff, 428 U.S. at 114, 116.

A. Whitmore alleges only individual and third-

party standing, not “next-friend” standing.

Although the present case is styled “Jonas H. Whit-

more, individually and as ‘next friend’ of Ronald Gene

Simmons v. State of Arkansas,” amici believe that the

standing issue is factually more complex than the mere

caption of the present case. Accordingly, amici will trace

the development of the present standing issue before the

Arkansas Supreme Court and this Court. From this dis-

cussion, amici believe that it will become clear that

Whitmore is asserting only individual and third-party

standing before this Court.

Before the Arkansas Supreme Court, Whitmore, with-

out gracing that court with any explanation, sought per-

mission to proceed as Simmons’ “next friend” (Joint

Appendix — hereinafter “J.A.” - at p. 32, para. 2) and

asserted one theory of individual standing:

Petitioner Jonas H. Whitmore is an inter-

ested party in that certain protected rights for

both he [sic] and other present and future death

row inmates are dependent upon further appel-

late review in behalf of Ronald Gene Simmons.

[J.A. p. 33, para. 5.) Whitmore did not assert a third-party

standing theory (J.A. 32-33). The Arkansas Supreme

Court denied the request to intervene due to Whitmore’s

lack of standing on March 13, 1989 (J.A. 34).

The petition for writ of certiorari to the Supreme

Court of Arkansas made clear that the only judgment

Whitmore wanted reviewed was the “judgment and opin-

ion of the Supreme Court of Arkansas entered in this

proceeding on March 13, 1989, in which Whitmore was

denied the right to intervene in [sic] behalf of Ronald

Gene Simmons, an Arkansas inmate scheduled to die by

lethal injection” (Petition for Certiorari - hereinafter

“P.C.” — at p. 1). Whitmore did not request the petition for

certiorari to extend to the March 10, 1989 per curiam

opinion of the Arkansas Supreme Court (J.A. 29). Whit-

more did not assert that he had “next friend” standing to

proceed on behalf of Simmons (P.C. pp. 8-10). Likewise,

in the opening brief, Whitmore fails to assert that he has

“next friend” standing to proceed on behalf of Simmons

(Brief pp. 20-25). The only theories of standing asserted to

this Court are individual standing and third-party stand-

ing (P.C. pp. 8-10; Brief pp. 20-25). Whitmore’s decision

not to assert “next friend” standing is reasonable in light

of Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), and

Franz v. Lockhart, 700 F.Supp. at 1005. Issues concerning

the limitation of Rees v. Peyton, 384 U.S. at 312, are not

before the Court.

B. Whitmore does not have individual standing or

third-party standing to assert a petition for w.it

of certiorari from Simmons’ conviction.

Whitmore asserts that he has individual standing to

assert the present petition for writ of certiorari (Br. pp.

20-22). Whitmore also imports a variety of theories from

civil law to support his third-party standing contention

(Br. pp. 22-25). These civil-law theories of standing have

never been applied by this Court to one’s standing to

assert a petition for writ of certiorari from a criminal

direct appeal on behalf of another. Since none of Whitm-

ore’s theories is well founded, Whitmore’s request should

be denied.

1. Whitmore has no individual standing.

Initially, Whitmore recognizes that the federal courts

do not consider “generalized grievances about the con-

duct of government” (Brief, p. 21, quoting, Flast v. Cohen,

392 U.S. at 106). Whitmore, however, goes on to assert

such a generalized grievance (Brief, p. 21). Whitmore

alleges that he is entitled to assert the “public interest

protections of the Eighth Amendment” (Brief, p. 21). Of

course, this is the type of generalized grievance that is

insufficient to convey individual standing to Whitmore.

Even one who feels strongly that another’s rights are

being ignored may not rely on the strength of feeling or

sincerity of that conviction as a foundation for federal

jurisdiction.

Plaintiffs in the federal courts “must allege some

threatened or actual injury resulting from the

putatively illegal action before a federal court

may assume jurisdiction.” . . . There must be a

“personal stake in the outcome” such as to

“assure that concrete adverseness which

sharpens the presentation of issues upon which

the court so largely depends for illumination of

difficult constitutional questions.” . . . Abstract

injury is not enough. It must be alleged that the

plaintiff “has sustained or is immediately in

danger of sustaining some direct injury” as a

result of . . . official conduct.

O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (citations

omitted).

Whitmore refers the Court to no case that recognizes

such a “public interest protection” aspect to the Eighth

Amendment (Brief, p. 21). That is because the Eighth

Amendment's protections are not a salve for the public’s

conscience concerning capital punishment. Rather, the

Eighth Amendment protections are purely personal to the

individual. Further, such a standard for individualized

standing would allow “all other citizens of the state”

(Brief, p. 21) to file certiorari petitions asserting a “public-

interest protection” of the Eighth Amendment. The con-

cept of “citizen standing” was rejected by this Court in

Valley Forge Christian College v. Americans United For Sep-

aration of Church and State, 454 U.S. 464, 482-487 (1982).

The anomaly of that theory would be illustrated if “citi-

zens”. were to file documents encouraging the courts to

execute Simmons or waiving the purported public-inter-

est protection. As should be apparent, problems arise

where multiple “citizens” approach the Court. Further,

problems would arise where the criminal defendant and

“citizens” approach the court. Recognition of such a the-

ory of standing would be unworkable at best, unconstitu-

tional at worst.

Whitmore also asserts that he

has a direct and substantial interest in having

the data base against which his crime is com-

pared to be complete and to not be [sic] arbi-

trarily skewed by the omission of any other

capital case.

[Brief, p. 21.] Although Whitmore does not grace the

Court with an explanation of this sentence, amici assume

that Whitmore is asserting that his proportionality review

will not be accurate without inclusion of Simmons’

crimes into the pool of comparative information (P.C. p.

10). This assertion ignores the fact that Whitmore’s pro-

portionality review has been completed by the Arkansas

9

Supreme Court, which affirmed Whitmore’s death sen-

tence. The Arkansas Supreme Court was persuaded that

the multiple stabbing, the slicing of the throat and the

engraving of an “X” into his victim’s face thoroughly

justified the circuit court’s verdict of the death penalty.

Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890, 895 (1988).

Whitmore’s concern that Simmons’ information will not

be available for proportionality review is moot.

Perhaps, Whitmore speculates that some future court

will reverse his conviction or sentence of death and Sim-

mons’ information will not be available for propor-

tionality review of Whitmore if he is reconvicted and

resentenced to the death penalty (P.C. p. 10). Such anal-

ysis is speculative and is hardly the foundation for an

Article III “case or controversy.” “The injury or threat of

injury must be both ‘real and immediate,’ not ‘conjec-

tural’ or ‘hypothetical.’ ” O’Shea v. Littleton, 414 U.S. at

494 (citations omitted); see, Franz v. Lockhart, 700 F.Supp.

at 1010 (describing “injury” as too tenuous and contin-

gent to confer standing). Further, amici note that Whit-

more offers no reason why he cannot bring this

purported flaw to the attention of the Arkansas Supreme

Court in the unlikely event this scenario occurs.

Finally, amici note that the truth of Whitmore’s argu-

ment would show a motive for him to sabotage an appeal

brought on Simmons’ behalf. Whitmore would want to

paint Simmons as the most evil killer ever to live in the

State of Arkansas. By painting Simmons in a bad light,

Whitmore enhances the possibility that his own slaughter

will be reviewed favorably to that of Simmons by a future

Arkansas Supreme Court. Article III requires a case or

controversy between parties. There appears to be none

10

between Whitmore and the State of Arkansas in the Sim-

mons case as defined by the Constitution and this Court.

Whitmore next asserts that the Court should not

enforce the standing requirement. Whitmore’s rationale is

that standing should be considered only a “rule of prac-

tice” (Brief, p. 21). Whitmore’s argument is grounded in

misperception. The standing requirement is grounded in

this Court’s Article III “case or controversy” requirement.

The standing doctrine has jurisdictional underpinnings.

See, Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91,

99-100 (1979). Once the minimum Article III standing

requirement is met, there remains a standing requirement

based on principles of prudence. Id.; Valley Forge Christian

College v. Americans United for Separation of Church and

State, 454 U.S. at 474-475. Whitmore points to no case

from this Court suggesting that there is an exception to

the Article III standing requirement.

Whitmore grounds his suggested exception on the

Eighth Amendment. That rationale is insufficient to cre-

ate an exception to Article III.

Implicit in the foregoing is the philosophy that

the business of the federal courts is correcting

constitutional errors, and that “cases and con-

troversies” are at best merely convenient vehi-

cles for doing so and at worst nuisances that

may be dispensed with when they become

obstacles to that transcendent endeavor. This

philosophy has no place in our constitutional

scheme. It does not become more palatable

when the underlying merits concern the Estab-

lishment Clause.

Valley Forge Christian College v. Americans United for Sep-

aration of Church and State, 454 U.S. at 489. There is no

11

principled method to limit exceptions to standing to cer-

tain constitutional provisions. See, id. at 489-490. Whit-

more also suggests that if he has no standing, then a

constitutional violation will go unredressed (Brief, p. 25).

“This view would convert standing into a requirement

that must be observed only when satisfied.” Id. at 489.

2. Whitmore is not entitled to third-party

standing.

Whitmore asserts that he is entitled to assert Sim-

mons’ rights under a third-party standing theory (Brief,

pp. 23-25). Generally, third parties have no standing to

assert claims on behalf of another. See, Valley Forge Chris-

tian College v. Americans United for Separation of Church and

State, 454 U.S. at 473; United States v. Students Challenging

Regulatory Agency Procedures (SCRAP), 412 U.S. 669

(1973). An exception to this general rule exists. Initially, a

third party like Whitmore must demonstrate a relation-

ship between himself and the person whose rights he

seeks to assert (Simmons).

The first [element] is the relationship of the

litigant to the person whose right he seeks to

assert. If the enjoyment of the right is inextrica-

bly bound up with the activity the litigant

wishes to pursue, the court at least can be sure

that its construction of the right is not unnecess-

ary in the sense that the right’s enjoyment will

be unaffected by the outcome of the suit. Fur-

ther, the relationship between the litigant and

the third party may be such that the former is

fully, or very nearly, as effective a proponent of

the right as the latter.

Singleton v. Wulff, 428 U.S. 106, 115 (1976). Amici find it

significant that Whitmore fails to allege to the Arkansas

12

Supreme Court and this Court a relationship between

Whitmore and Simmons. Whitmore fails to describe how

he will enjoy vindication of ‘Simmons’ right. In fact, as

discussed earlier (Amicus Brief, supra at p. 8), it might not

be in Whitmore’s interest to assert rights consistent with

Simmons’ rights. Whitmore might be interested in mak-

ing Simmons look bad in order for Whitmore to look

better in the unlikely event the Arkansas Supreme Court

has to conduct another proportionality review.

Second, Whitmore fails to assert any reason for Sim-

mons not to assert his own right before this Court.

Even where the relationship is close, the reasons

for requiring persons to assert their own rights

will generally still apply. If there is some genu-

ine obstacle to such assertion, however, the third

party’s absence from court loses its tendency to

suggest that his right is not truly at. stake, or

truly important to him, and the person who is in

court becomes[,] by default[,] the right’s best

available proponent.

Id. at 115-116. Simmons was and is his own best propo-

nent. He was certainly available to vindicate his own

rights before the Arkansas Supreme Court. He is avail-

able to present his position to this Court. This is best

manifested by his presentation of his own amicus curiae

brief. There is no “genuine obstacle” to Simmons’ asser-

tion of his own rights. He could have easily ratified the

appeal to the Arkansas Supreme Court or to this Court.

Considerations of privacy, Singleton v. Wulff, 428 U.S. at

117; imminent mootness, id.; fear of prosecution, Craig v.

Boren, 429 U.S. 190, 196-197 (1976); or “chilled” expres-

sion, Secretary of State of Maryland v. Joseph H. Munson Co.,

13

467 U.S. 947, 956 (1984), do not apply here. No genuine

obstacle barred Simmons from his direct appeal.

If the Court were to find that Whitmore has standing

to assert the Eighth Amendment claim presented in ques-

tion number one, it cannot be on the basis of third-party

standing. If Whitmore wishes to assume Simmons’ rights,

he must also assume Simmons’ responsibilities. Simmons

made a knowing and intelligent decision to waive his

right to a direct appeal (J.A. 31). Since Whitmore wishes

to assume Simmons’ rights, he must also assume Sim-

mons’ responsibilities - the knowing and intelligent

waiver of the direct appeal. Whitmore asserts that Sim-

mons cannot waive the Eighth Amendment claim because

it is a “public right” (Brief, p. 18). Of course, if that

assertion were true, then Simmons has no private right to

assert, and no private right to be assumed by Whitmore

under a third-party standing theory.

C. Supreme Court review of the Eighth Amend-

ment claim is precluded by an adequate and

independent state ground.

On March 13, 1989, the Arkansas Supreme Court

found that Whitmore “has failed to show that he has

standing to intervene in this cause” (J.A. 34). The

Arkansas Supreme Court found, as a matter of Arkansas

state law, that Whitmore was not entitled to intervene in

the state-court proceeding. That decision constitutes a

short and plain statement of an adequate and indepen-

dent state ground supporting the judgment of the

Arkansas Supreme Court. See, Michigan v. Long, 463 U.S.

1032 (1983).

14

District Judge Eisele noted the state-law nature of the

1988 Arkansas Supreme Court’s ruling when he wrote:

Petitioner Franz’s claim that he has standing

under the Arkansas Constitution to prosecute

these issues in Arkansas state court was rejected

by the Arkansas Supreme Court, and in any case

could not avail him before this Court, because

he must meet federal, not state, standing

requirements.

Franz v. Lockhart, 700 F.Supp. at 1010. Indeed, the

Arkansas Supreme Court noted the criticism of the fed-

eral “next-friend” standing standard and instituted a less

stringent standard for “next-friend” standing in Arkansas

(J.A. 12). Whitmore, however, failed to satisfy that lesser

standard. Since the Arkansas Supreme Court relied upon

the adequate and independent state ground — Whitmore’s

lack of standing to proceed under Arkansas law - the

judgment of the Arkansas Supreme Court should be

affirmed. Cf. id. at 1010 n. 1.

+

15

CONCLUSION

The concepts of standing: “next friend,” individual

and third-party, in death-penalty litigation have been the

subject of controversy over the past twelve years. The

Court should take the opportunity presented in the pre-

sent case and provide guidance for the lower courts.

Respectfully submitted,

Wituram L. WessTER

Attorney General

JoHN M. Morris

Assistant Attorney General

STEPHEN D. HAWKE

Assistant Attorney General

Counsel of Record for Amicus Curiae

State of Missouri

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

APPENDIX

List of Amici Curiae

State of Alabama

Don Siegelman

Attorney General

State House

11 South Union Street

Montgomery, Alabama 36130

State of Idaho

Jim Jones

Attorney General

Statehouse

Room 210

Boise, Idaho 83720

State of New Mexico

Hal Stratton

Attorney General

Bataan Memorial Building

Galisteo Street

Santa Fe, New Mexico 87503-1508

State of Ohio

Anthony J. Celebrezze, Jr.

Attorney General

State Officer Tower

30 East Broad Street

Columbus, Ohio 43215

State of South Carolina

T. Travis Medlock

Attorney General

Rembert Dennis Office Building

1000 Assembly Street

Columbia, South Carolina 29211

State of Virginia

Mary Sue Terry

Attorney General

101 North Eighth Street

Richmond, Virginia 23219