Amicus Curiae Brief — Walton v. Arizona

-_

No. 88-7351 q

- In The

‘o

“~y

S = Supreme Court of the United States

October Term, 1989

+

JEFFREY ALAN WALTON,

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

+

On Writ Of Certiorari To The Supreme Court

For The State Of Arizona

+

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

AND BRIEF AMICI CURIAE OF THE AMERICAN

CIVIL LIBERTIES UNION, AMERICAN CIVIL

LIBERTIES UNION OF ARIZONA AND NATIONAL

JURY PROJECT IN SUPPORT OF PETITIONER

+

*WetsH S. Wuite Joun A. Powe.

305 Law School Building MicHaeL LAURENCE

University of Pittsburgh American Civil Liberties

Pittsburgh, PA 15260 Union Foundation

Counsel for ACLU of Arizona 132 West 43rd Street

RaNby Hertz New York, NY 10063

New York University Counsel for American

School of Law Civil Liberties Union

249 Sullivan Street SHAWN D. RENNER

New York, NY 10012 Cuine, WILLIAMS, WRIGHT

Counsel for ACLU of Arizona JOHNSON & OLDFATHER

1900 FirsTier Bank Bldg.

Lincoln, NE 68508

Counsel for National

Jury Project

Attorneys for Amici Curiae.

“Counsel of Record

No. 88-7351

>

In The

Supreme Court of the United States

October Term, 1989

+

JEFFREY ALAN WALTON,

Petitioner,

vs. ‘

STATE OF ARIZONA,

Respondent.

o—

On Writ Of Certiorari To The Supreme Court

For The State Of Arizona

—a Qo

MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

OF THE AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION OF ARIZONA

AND NATIONAL JURY PROJECT

IN SUPPORT OF PETITIONER

+

Pursuant to Rule 36.3 of the rules of this Court, amici

respectfully request leave to file the attached brief of

amici curiae in support of petitioner. Although petitioner

has consented to the filing of this brief, respondent has

refused to consent to the filing.

N

ii

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonpartisan organization with over 275,000

members. The ACLU was established to defend our Bill

of Rights and has been continuously active toward that

end. The ACLU is dedicated to advancing the civil rights

and individual liberties of the people of the United States.

The American Civil Liberties Union of Arizona is a local

affiliate of the ACLU.

The National Jury Project is a corporation which

engages in extensive research into a variety of areas and

issues relating to the American jury system. One of the

purposes of the National Jury Project, as reflected in its

bylaws, is to conduct studies of the jury system for par-

ties and legal counsel in civil and criminal cases, includ-

ing cases involving the defense of human and civil rights

as protected by law. ,

The brief proposed for submission by amici addresses

the issue whether Arizona’s death penalty statute violates

the Sixth Amendment by denying a jury trial on the

factual elements of capital murder specified by Arizona

law. This Court has not previously considered, under the

Sixth Amendment, the validity of a state statutory

scheme which absolutely denies a homicide defendant

the right to have a jury make the factual findings neces-

sary under state law to authorize imposition of the death

penalty. This important question of first impression

deserves the fullest examination and explication possible.

While the historical development of concepts embod-

ied in the Bill of Rights is often a consideration in the

ili

cases which come to this Court for review, such concerns

play a particularly important role in cases implicating the

Sixth Amendment. As this Court’s opinions show, the

decision of Sixth Amendment issues regularly turns on

the understanding of the jury trial right held by the

framers of our Constitution. See, e.g., Duncan v. Louisiana,

391 U.S. 145 (1968). The decision in this case, likewise

ought to be informed by as full and complete an under-

standing of historical foundations for the jury trial right

as possible.

Amici, with long traditions of constitutional inter-

pretation, are best suited to provide this Court with the

historical context necessary to resolve the Sixth Amend-

ment issue in this case.

The brief. which amici propose to submit traces the

jury trial right from its inception in medieval England

through its installation as one of the cornerstones of our

Bill of Rights. The brief examines the evolution of the law

of homicide, and demonstrates the important role played

by the jury in murder cases throughout the centuries.

Based on this historical analysis, amici submit a test for

use in determining when and under what conditions

factual determinations which make eligible a homicide

defendant for capital sentencing amount to elements of

the crime of capital murder, for which the Sixth Amend-

ment demands jury decision. Applying this test, amici

argue that petitioner’s death sentence, imposed by a

judge without any jury participation whatsoever, violates

the Sixth Amendment.

iv

The briefs on the merits filed by the parties to this

proceeding may address certain aspects of the historical

underpinnings of our jury trial right. Nevertheless, given

the number of issues presented by this case and the page

limitations imposed by this Court, it is unlikely that

either party will be able to fully treat the historical anal-

ysis amici believe this matter requires. Pursuant to Rule

36.3 of this Court’s rules, amici therefore request leave to

file the attached brief of amici curiae American Civil Lib-

erties Union, American Civil Liberties Union of Arizona

and National Jury Project in support of petitioner.

Respectfully submitted

WetsH S. WHITE

305 Law School Building

University of Pittsburgh

Pittsburgh, PA 15260

Vv

TABLE OF CONTENTS

| Page

| Re Ss 68s eve ee de de cdcewccecccen 1

OE I os voc ccsccnsccrevescssscnscese’s 1

FI ea ign 66000 ond kbc ce decseccenseccneescess 3

Arizona’s Death Penalty Statute Violated Peti-

tioner’s Sixth Amendment Right to Jury Trial.... 3

| A. The Historical Understanding of the Jury’s Role in

CPU Gn Keeceduencecdsstecancadaescecs 6

| (1.) The Jury’s Fact-finding Role in Homicide

(2.) The Jury’s Role in Seditious Libel Cases.. 9

B. The Prior Decisions of This Court.............. 11

C. A Proposed Test for Determining a Capital Defen-

dant’s Right to Jury Fact-finding............... 18

D. The Jury Trial Right in the Present Case....... 22

Ral REE See Pay Parana ae Mir de a 24

vi

TABLE OF AUTHORITIES

Pages

Cases

Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) .... 23

Barclay v. Florida, 462 U.S. 939 (1983)................ 22

Bushnell’s Case, 6 Howell's State Trials 999 (1670)

oe ee 8

Cabana v. Bullock, 474 U.S. 376 (1986) ............... 17

Caldwell v. Mississippi, 472 U.S. 320 (1985)........... 22

Carrella v. California, 109 S.Ct. ___, 105 L.Ed.2d 218

cKih ae sbdauededeeddbeckdautedhtnssocttnes a0 6

Duncan v. Louisiana, 391 U.S. 145 (1968)...... 3, 4, 6, 21

Enmund v. Florida, 458 U.S. 782 (1982)............ 17, 18

Hildwin v. Florida, 109 S.Ct. 2055 (1989) ....... 2, 11, 14

McMillan v. Pennsylvania, 477 U.S. 79 (1986)

TTT TIES TEL TT TT eer eee 2, 11, 14, 17, 18, 21

Mullaney v. Wilbur, 421 U.S. 684 (1975)........... 16, 17

Patterson v. New York, 432 U.S. 197 (1977) ........... 15

Proffitt v. Florida, 428 U.S. 242 (1976)................ 12

Raddix v. Thigpen, 728 F.2d 705 (Sth Cir. 1984)....... 18

Sandstrom v. Montana, 442 U.S. 510 (1979)........... 17

Solem v. Helm, 463 U.S. 277 (1982) ...............45. 23

Spazianio v. Florida, 468 U.S. 447 (1984).2, 11, 12, 14, 22

Specht v. Patterson, 386 U.S. 605 (1967) ....... 15, 20, 21

Vii

TABLE OF AUTHORITIES - Continued

Pages

Trial of John Peter Zenger, 17 Howell's State Trials

ERIE Pr Se ae ee 10

United States v. Battiste, 24 F.Cas. 1042 (C.C.D.

a ee ee 6

Williams v. Florida, 399 U.S. 78 (1970) ................ 4

Williams v. New York, 337 U.S. 241 (1949)............ 13

Woodson v. North Carolina, 428 U.S. 280 (1975)....... 23

STATUTES

Ariz.Rev.Stat.Ann. Sec. 13-703(e) (1978).............. 23

OTHER AUTHORITIES

J. Alexander, A Brief Narrative of the Case and Trial

of John Peter Zenger 91 (S. Katz 2d Ed. 1972)...... 10

4 W. Blackstone, Commentaries *350, *361........... 5, 7

V. Buranelli, The Trial of Peter Zenger, 112 (1957)..... 10

Green, The Jury and the English Law of Homicide,

1200-1600, 74 Mich.L.Rev. (1976) ........... 7, 8, 9, 10

T. Green, Verdict According to Conscience (1985) . 8, 9, 10

Langbein, The Criminal Trial Before the Lawyers, 45

SC EE acer ccccacccvoscccccssece 7, 8

B. Mitchell & L. Mitchell, A Biography of the Consti-

tution of the United States 22 (1964) ................ 5

Nelson, Seditious Libel in Colonial America, 3

PER Be OE ROD occ ccc ccccccsecccccccee 9

Nolan, Sir William Blackstone and the New American

Republic: A Study of Intellectual Impact, 51

FY WU Py Vine ene eTede cei seccccnsces 5

J. Profatt, A Treatise on Trial by Jury (1880)........... 6

NN

viii

TABLE OF AUTHORITIES - Continued

Pages

White, Fact-finding and the Death Penalty: The Scope

of a Capital Defendant's Right to Jury Trial, 65

Notre Dame L.Rev. 1 (1989) .............2252- eee. 5

E. Wynn, 3 Eunomies: Dialogues Concerning the Law

and Constitution of England 217 (2d Ed. 1785)....... 5

INTEREST OF AMICI CURIAE

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonpartisan organization of over 275,000

members dedicated to defending the Bill of Rights and

advancing the civil rights and individual liberties of the

people of the United States. The American Civil Liberties

Union of Arizona is one of the ACLU’s affiliates.

The National Jury Project is a corporation which

engages in extensive research into a variety of areas and

issues relating to the American jury system. One of the

purposes of the National Jury Project, as reflected in its

bylaws, is to conduct studies of the jury system for par-

ties and legal counsel in civil and criminal cases, includ-

ing cases involving the defense of human and civil rights

as protected by law.

This case presents the question whether a capital

defendant has the constitutional protection of a trial by

jury on the essential elements of capital murder. Amici

believe that persons accused of capital murder possess a

fundamental constitutional right to be tried by a jury, and

that the decisions of this Court support the recognition of

this right in the instant case. Accordingly, we submit this

brief in support of Petitioner, and we urge the Court to

reverse the decision of the court below.

> —

SUMMARY OF THE ARGUMENT

In this brief, amici address only one of the several

questions presented for review in this case, specifically,

whether Arizona’s death penalty statute violates the Sixth

Amendment by denying a jury trial on the factual ele-

ments of capital murder specified by state law. Amici

support the petitioner’s position that this question must

be answered in the affirmative.

This Court’s decisions establish the significance to

Sixth Amendment analysis of the historical concerns that

led to the adoption of the jury trial right by the framers of

the Constitution. Based on an historical review of the

jury’s traditional fact-finding role in homicide cases, amici

propose a test for deciding when a capital defendant has

a Sixth Amendment right to jury determination of facts

which authorize the ultimate penal sanction - death.

Throughout the history of the English and American

criminal justice systems, the jury has represented the

conscience of the community. As the law evolved, the

jury’s role in the criminal justice system became more

clearly defined. By the time our Bill of Rights was

adopted, the jury’s broad authority to determine the facts

in homicide cases was well established. The framers’

contemporary understanding of the jury’s role informs

the now familiar maxim that the Sixth Amendment right

to jury trial necessarily includes the right to have a jury

determination with respect to every element of the crimi-

nal charge.

This Court has twice held that a capital defendant

does not have a constitutional right to jury sentencing.

Spaziano v. Florida, 468 U.S. 447 (1984); Hildwin v. Florida,

109 S.Ct. 2055 (1989). This Court has also held that a

criminal defendant is not always entitled to a jury deter-

mination as to the facts that lead to an enhanced sen-

tence. McMillan v. Pennsylvania, 477 U.S. 79 (1986). None

of these cases, however, address the specific issue pre-

sented here: Whether a capital defendant has a Sixth

Amendment right to jury decision of the facts constitut-

ing the aggravating circumstances of the crime, which

make the defendant eligible for the sentence of death.

Clearly, the Constitution does not require jury input

into every facet of the sentencing decision. It is equally

clear, however, that states may not withdraw from jury

determination elements of a crime by simply redefining

such elements as sentencing considerations. In order to

resolve the tension inherent between these two concepts,

amici submit the following test: Facts which lead to an

enhanced sentence must be viewed as elements of an

offense for which a jury determination is required if two

conditions are met. First, the facts relate to the circum-

stances of the crime rather than the character of the

offender; second, proof of the facts makes possible a

significantly enhanced sentence. When the aggravating

factors which authorized petitioner’s death sentence are

considered under this test, it is clear that they constitute

elements of the crime of capital murder under Arizona

law, and that petitioner’s Sixth Amendment rights have

been violated. \

—-@-—

ARGUMENT

Arizona’s Death Penalty Statute Violated Petitioner's

Sixth Amendment Right to Jury Trial

In Duncan v. Louisiana, 391 U.S. 145 (1968) this Court

held that the Sixth Amendment right to jury trial is

essential to our scheme of justice. Duncan concluded that

“[t]he guarantees of jury trial in the Federal and State

Constitutions reflect a profound judgment about the way

in which law should be enforced and justice adminis-

tered.” Id. at 155. This Court has indicated that the scope

of the constitutional right to jury trial must be deter-

mined by analyzing the historical concerns that led to

that provision’s adoption. See, e.g., Williams v. Florida, 399

U.S. 78, 86-87 (1970); Duncan v. Louisiana, 391 U.S. at

151-154. In Williams, for example, the Court stated that in

determining whether a particular feature of jury trial (in

that case the number of jurors) is constitutionally

required “(t]he relevant inquiry . . . must be the function

that the particular feature performs and its relation to the

purposes of the jury trial.” 399 U.S. at 99. Thus, the

purposes historically served by the jury should be of

particular relevance in defining the scope of the jury’s

fact-finding authority.

This Court explained those purposes in Duncan,

when it observed that the jury trial provisions “reflect a

fundamental decision about the exercise of official power

~ a reluctance to entrust plenary powers over the life and

liberty of the citizen to one judge or a group of judges.

Fear of unchecked power, so typical of our State and

~Fecteral Governments in other respects, found expression

in the criminal law in this insistence upon community

participation in the determination of guilt and inno-

cence.” Id. at 156. In short, the jury’s essential role is to

prevent government oppression by serving as a buffer

between the government and the individual.

Historically, the jury has fulfilled this role primarily

by serving as the final arbiter on all questions of fact.' In

1765, Sir William Blackstone, an authority who had enor-

mous influence on the framers of the Constitution and the

Bill of Rights? referred to the English jury as “the grand

palladium of English liberty.” In delineating the jury’s

authority, he distinguished between questions of fact and

questions of law, explaining that “the principles and

axioms of law . . . should be deposited in the breasts of

the judges. . . . But in settling and adjusting a question of

fact . . . a competent number of sensible and upright

jurymen . . . will be found the best investigators of truth

and the surest guardians of public justice.” 4 W. Black-

stone, Commentaries *350. Twenty-two years later, E.

Wynne, an English commentator, stated the point more

emphatically: “All that I have said-or have to say upon

the subject of Juries, is agreeable to this established

maxim: ‘that Juries must answer to questions of Fact and

Judges to questions of Law.’ This is the fundamental

maxim acknowledged by the Constitution.” E. Wynne, 3

1 The historical analysis contained in this brief is elabo-

rated at greater length in White, Fact-Finding and the Death

Penalty: The Scope of a Capital Defendant's Right to Jury Trial, 65

Notre Dame L. Rev. 1 (1989)

? For example, John Adams, Nathaniel Green, James Mad-

ison, Alexander Hamilton, John Jay and Patrick Henry all read

and acknowledged the authority of Blackstone’s Commentaries.

See Nolan, Sir William Blackstone and the New American Republic:

A Study of Intellectual Impact, 51 N.Y.U. L. Rev. 731, 743-45

(1976). See also B. Mitchell & L. Mitchell, A Biography of the

Constitution of the United States 22 (1964).

Eunomies: Dialogues Concerning the Law and Constitution of

England 217 (2d Ed. 1785). Later authorities echoed this

view of the jury’s role.*

A. The Historical Understanding of the Jury’s Role in

Criminal Cases

(1) The Jury's Fact-finding Role in Homicide Cases

The original basis for the jury’s role as fact-finder

was that the jurors were the only ones who knew the

facts. As Professor Thomas Green has shown, “(t]he early

English jury was self-informing and composed of persons

supposed to have first-hand knowledge of the events and

persons in question. The judge instructed the jury on the

law, but was himself almost entirely dependent upon the

3 See, e.g., United States v. Battiste, 24 F. Cas. 1042, 1043

(C.C.D. Mass. 1835) (No. 14,545) (opinion by Story, J.) (“I hold

it the most sacred constitutional right of every party accused of

a crime, that the jury should respond as to the facts, and the

court as to the law.”). See generally J. Proffatt, A Treatise on Trial

by Jury 318-19 (1880).

Most recently, this Court reversed a conviction on Due

Process grounds, holding that jury instructions creating con-

clusive presumptions wrongfully eliminated the prosecution’s

burden of proving all elements of the crime charged. Carella v.

California, 109 S.Ct. __, 105 L.Ed.2d 218 (1989). Quoting the

language from Duncan v. Louisiana cited earlier in this brief,

Justice Scalia noted that the constitutional inadequacy inherent

in conclusive presumptions stems not only from interference

with the concept of the presumption of innocence, but also ‘at

a conclusive presumption “ ‘invade[s] [the] factfinding func-

tion’ which in a criminal case the law assigns solely to thi

jury....” Id. at__, 105 L.Ed 2d at 223 (Scalia, J., concurring).

(quoting Sandstrom v. Montana, 442 U.S. 510, 523 (1979)).

Jury for his knowledge of the case.” Green, The Jury and

the English Law of Homicide, 1200-1600, 74 Mich. L. Rev.

414, 421 (1976) (hereinafter Green I). |

During the sixteenth and seventeenth centuries, the

modern criminal trial evolved. By the end of this period,

witnesses testified to evidence in a court presided over by

a judge. After being charged by the judge, the jury

returned its verdict based on the evidence presented.

Because the jurors no longer had personal knowledge of

the facts, the Crown’s power to control or influence jury

verdicts increased. Professor John Langbein’s examina-

tion of seventeenth century criminal trials indicates that

judges sometimes exercised this power by essentially

directing a guilty verdict or refusing to accept the jury’s

not guilty verdict. See Langbein, The Criminal Trial Before

the Lawyers, 45 U. Chi. L. Rev. 263 (1978) (hereinafter

Langbein, Criminal Trial). Moreover, when the jury was

recalcitrant, judges sometimes resorted to even sterner

measures. On occasion, juries were threatened with fines

or even imprisonment if they failed to return the verdict

sought by the Crown. See 4 W. Blackstone, Commentaries

*361. Thus, although the jury technically retained its

authority to determine the facts, in practice judges had

the means of restricting their fact-finding authority.

By the end of the seventeenth century, primarily due

to a number of polically charged cases, tension between

judges and juries heightened. While the heightened ten-

sion was particularly obvious in trials involving seditious

libel or other political offenses, it was also evident in

homicide cases. For example, when Chief Justice Kelyng

was charged with improper judicial conduct in 1667,

three of the matters charged against him related to his

j 4

coercion of juries in homicide cases. For example, in one

case where “a master’s helper had beaten a boy ‘about

the head with a broomstaff’ for doing careless work,

Kelyng would not accept a verdict of manslaughter and

threatened the jury with a fine. This produced the result

he wanted: murder was found and the defendant was

hanged in spite of the recommendation of ‘gentlemen’ of

the county that he be spared.” T. Green, Verdict According

to Conscience 214 (1985) (hereinafter Green II).

The charges against Kelyng led to a House of Com-

mons resolution that a bill should be drafted to the effect

that threatening jurors with fines and imprisonment as a

result of their verdicts was illegal. Although the bill never

passed, the Court in Bushell’s Case, 6 Howell's State Trials

999 (1670) (No. 231), decided three years later, explicitly

held that a judge could not fine or imprison the jurors

because he disagreed with their verdict. Over the next

hundred years, the holding in Bushell’s Case was extended

to provide the jury with authority to determine facts

without judicial interference. See Langbein, Criminal Trial,

supra, at 298.

Thus, by the time our Bil! of Rights was adopted, the

jury’s authority to determine facts in homicide cases was

well established. Although judges retained some discre-

tion to spare offenders convicted of capital offenses, the

jury’s power. to determine whether the defendant com-

mitted the capital offense was absolute. In making this

determination, the jury had to decide both whether the

defendant killed the victim and whether he had the men-

tal state necessary to be convicted of the capital offense.

_-=- —"s

9

(2) The Jury’s Role in Seditious Libel Cases

The seditious libel cases of the eighteenth century are

of special significance because they involved a serious

and prolonged debate concerning the allocation of fact-

finding authority between judges and juries. Moreover, in

view of the framers’ special concern for laws that

restricted freedom of speech, this debate undoubtedly

played an important part in shaping the framers’ view of

the jury’s role in fact-finding. See generally Nelson,

Seditious Libel in Colonial America, 3 Am. J. Legal Hist. 160

(1959).

Seditious libel was originally a common law crime.

Thus, its elements were not authoritatively set down but

evolved over the course of time. In order to establish

seditious libel in England during the eighteenth century,

the prosecution had to prove at least that the writing in

question was seditious and that the defendant’s act of

publishing it was malicious. The jury’s role in fact-find-

ing was extremely limited, however. It was required to

return “a general verdict of ‘guilty’ if it found that the

accused intentionally published the writing and that the

writing bore the meaning alleged by the prosecution.”

Green II, supra, at 319. In the event of a guilty verdict, the

judge would then resolve the ultimate question of guilt or

innocence by determining “as matters of law two ques-

tions that had the appearance of questions of fact:

whether the act was done with criminal intent, and

whether the writing was seditious or defamatory.” Id.

The jury’s limited role in fact-finding was attacked

primarily on the ground that as “judges of fact . . . the

10

jury must consider all the ‘circumstances,’ (e.g., truth,

intent) involved.” Id. at 323. Significantly, lawyers and

scholars making this argument sometimes drew upon the

jury’s role in homicide cases as an appropriate analogy.

Since juries determined facts relating to the defendant's

state of mind in those cases, so the argument went, there

was no reason why they should be precluded from doing

so in libel cases. In the Trial of John Peter Zenger, 17

Howell's State Trials 675 (1735) (No. 490), for example

Zenger’s lawyer, Andrew Hamilton, argued that:

[U]pon indictment for murder, the jury may, and

almost instantly do, take upon them to judge

whether the evidence will amount to murder or

manslaughter, and find accordingly; and I must

say I cannot see why in our case the jury have

not at least as good a right to say whether our

newspapers are a libel or no libel as another jury

has to say whether killing of a man is murder or

manslaughter.

J. Alexander, A Brief Narrative of the Case and

Trial of John Peter Zenger, 91 (S. Katz 2d ed. 1972).

In Zenger’s case, the judge refused to allow the jury

to decide whether the words were libelous. Nevertheless,

Hamilton argued to the jurors that they should acquit

because they were themselves “witnesses to the truth of

the facts we have offered.” V. Buranelli, The Trial of Peter

Zenger 112 (1957). After hearing this argument, the jury

needed only a few minutes to acquit.

By the time the Bill of Rights was adopted, specific

results — such as those in Zenger’s case - as well as

powerful arguments by authorities such as Lord Camden

and Lord Erskine established that the jury’s fact-finding

role in libel cases could not be restricted. See Green II,

11

supra, at 320-23. The right to jury trial incorporated in the

Sixth Amendment thus reflects the framers’ contempor-

ary understanding of the jury’s role. Accordingly, it is

evident that the Sixth Amendment right to jury trial

necessarily includes the right to have a jury determina-

tion with respect to every element of the criminal charge.

Thus, the legislature may not restrict a criminal defen-

dant’s right to jury trial by reallocating fact-finding

authority between the judge and jury.

B. The Prior Decisions of This Court

A discussion of three particular recent opinions of

this Court will be useful in isolating the key question

presented in this case. Spaziano v. Florida, 468 U.S. 447

(1984) held that a capital defendant does not have a

constitutional right to jury determination as to sentence

and Hildwin v. Florida, 109 S. Ct. 2055 (1989) merely

applied Spaziano. McMillan v. Pennsylvania, 477 U.S. 79

(1986), held that in certain situations the defendant is not

entitled to a jury determination as to facts that lead to an

enhanced sentence. None of these cases dealt with the

issue presented in this case; nor did any of them develop

a test for determining when a defendant will have a

constitutional right to a jury determination as to facts that

lead to a capital sentence.

Spaziano involved the constitutionality of Florida’s

capital sentencing scheme which provides that, after

hearing evidence and argument relating to aggravating

and mitigating circumstances, the jury recommends a

sentence; then, after considering the jury’s sentence, the

12

judge imposes sentence.* In Spaziano’s case after weigh-

ing the evidence presented at the penalty trial, the jury

recommended a sentence of life imprisonment. The trial

judge concluded, however, that “notwithstanding the rec-

ommendation of the jury, . . . sufficient aggravating cir-

cumstances existed to justify and authorize a death

sentence; . . . [and] the mitigating circumstances were

insufficient to outweigh such aggravating circum-

stances ... ” 468 U.S. at 452. Specifically, the judge

determined that two aggravating circumstances — that the

homicide was especially heinous and atrocious and that

the defendant had been previously convicted of a felony

— were present and that there were no mitigating circum-

stances “except, perhaps, the age [28] of the defendant.”

Id.

In deciding the issue in Spaziano, this Court did not

focus on the particular aggravating circumstances identi-

fied by the trial judge, but instead considered the broad

question whether “the capital sentencing decision is one

that, in all cases, should be made by a jury.” 468 U.S. at

458.5 After considering the general characteristics of

4 Although Florida law allows the judge to impose a sen-

tence of death even where the jury recornmends life, the judge

must give great weight to the jury’s recommendation. As this

Court observed in Proffitt v. Florida, 428 U.S. 242 (1976), under

the Florida procedure: “ ‘[iJn order [for the court] to sustain a

sentence of death following a jury recommendation of life, the

facts suggesting a sentence of death should be so clear and

convincing that virtually no reasonable person could differ.”

Id. at 249 (quoting Tedder v. State, 322 So.2d 908, 910 (1975)).

5 The brief filed on behalf of Spaziano argued that “a trial

judge’s override of a jury’s factually based decision against the

(Continued on following page)

——

13

capital sentencing, the Court held that a capital defendant

does not have a constitutional right to jury trial at the

penalty phase of a capital trial. Its basis for this holding

was that the judge, as well as a jury, is able to fulfill the

constitutional obligation of “evaluat[ing] the unique cir-

cumstances of the individual defendant” so as to impose

sentence. 468 U.S. at 459.

The Court’s analysis in-Spaziano focused on the dif-

ference between sentencing and adjudicating guilt. Citing

Williams v. New York, 337 U.S. 241 (1949), it emphasized

that “despite its unique aspects, a capital sentencing pro-

ceeding involves the same fundamental issue involved in

any other sentencing proceeding — a determination of the

appropriate punishment to be imposed on an individual.”

468 U.S. at 459. Thus, Spaziano’s holding seemed to be

based on the conclusion that the kind of determination

that takes place at the penalty stage under Florida’s capi-

tal sentencing scheme is fundamentally different from the

type of determination that takes place at the guilt stage of

a criminal trial. Although the Florida sentencing judge is

not permitted to impose a death sentence without making

certain factual determinations, the Court did not focus on

this aspect of Florida’s sentencing procedure. Instead, it

treated the case as one in which the judge determined

whether a death sentence would be imposed primarily on

the basis of his assessment of the individual characteris-

tics of the particular offender.

(Continued from previous page)

death penalty must, in all cases, violate the Fifth, Sixth, Eighth

and Fourteenth Amendments.” Brief for Petitioner at 20. The

parties did not raise the issue whether the defendant had the

right to a jury trial as to the presence or absence of one or more

of the statutorily defined aggravating circumstances.

14

In Hildwin v. Florida, 109 S. Ct. 2055 (1989) this Court

appeared to read Spaziano broadly by stating that the

“existence of an aggravating factor [under Florida’s capi-

tal sentencing statute] is not an element of the offense but

instead is ‘a sentencing factor that comes into play only

after the defendant has been found guilty.’” 109 S. Ct. at

2057 (quoting McMillan v. Pennsylvania, 477 U.S. at 86).

Hildwin’s holding did not purport to go beyond Spaziano,

however. In Hildwin, the jury recommended death. Under

the Florida jury instructions, the jury could not have done

so unless it found one or more statutory aggravating

circumstances sufficient to call for the death penalty.

Therefore, Hildwin could not present the issue of the

constitutionality of a death sentence unsupported by a

jury finding of the aggravating circumstance or circum-

stances that made the defendant death-eligible. And the

Court’s per curiam opinion itself recognized the narrow-

ness of the issue presented. It held:

“If the Sixth Amendment permits a judge to

impose a sentence of death when a jury recom-

mends life imprisonment, . . . it follows that it

does not forbid the written findings that autho-

rize imposition of a death sentence when the jury

unanimously recommends death.” 109 S. Ct. at 2056

(emphasis added).

That language says explicitly that the Hildwin jury’s death

verdict makes his case follow a fortiori from Spaziano.

Unlike Spaziano and Hildwin, McMillan v. Pennsylva-

nia, 477 U.S. 79 (1986), involved a situation in which an

enhanced sentence was triggered entirely by a specific

finding of fact. In McMillan the defendant was convicted

of robbery, a felony subject to a maximum sentence of

ke dl

15

twenty years in prison. He was sentenced under Pennsyl-

vania’s mandatory minimum sentencing act, which pro-

vides that anyone convicted of a felony will be given a

mandatory minimum of five years imprisonment if the

judge finds by a preponderance of the evidence that the

defendant “visibly possessed a firearm” during the com-

mission of the offense. The defendant claimed that “visi-

ble possession of a firearm” was an element of the

offense, requiring both jury trial and proof beyond a

reasonable doubt.

This Court held that the case was controlled by Pat-

terson v. New York, 432 U.S. 197 (1977). The five-Justice

majority focused first on the specific provisions of the

Pennsylvania statute: “the Pennsylvania legislature has

expressly provided that visible possession of a firearm is

not an element of the crimes enumerated in the manda-

tory sentencing statute, . . . but instead is a sentencing

factor that comes into play only after the defendant has

been found guilty of one of those crimes beyond a reason-

able doubt.” 477 U.S. at 86. Acknowledging that Patterson

does impose some constitutional limit on the govern-

ment’s power to base an increased sentence on factors

that could have been defined as elements of a criminal

offense, the majority concluded that this limit was not

transgressed in McMillan.

The majority based this conclusion primarily on two

factors. First, it emphasized that in contrast to the situa-

tion in Specht v. Patterson, 386 U.S. 605 (1967)® or Mullaney

© Specht held that Colorado’s Sex Offender’s Act, which

allowed a judge to sentence a convicted sex offender to an

indeterminate sentence on the basis of a finding that the defen-

dant was a threat to the public, an habitual offender, or men-

tally ill, violated due process.

16

v. Wilbur, 421 U.S. 684 (1975)7, the stakes for the defen-

dant were quite minimal: “[The Pennsylvania statute]

neither alters the maximum penalty for the crime com-

mitted nor creates a separate offense calling for a sepa-

rate penalty; it operates solely to limit the sentencing

court’s discretion in selecting a penalty within the range

already available to it without the special finding of

visible possession of a firearm.” 477 U.S. at 88. In addi-

tion, the Court observed that “the specter . . . of States

restructuring existing crimes in order to ‘evade’ the com-

mands of Winship just does not appear in this case”

because, in passing its Mandatory Minimum Sentencing

Act, “[t]he Pennsylvania legislature did not change the

definition of any existing offense.” Id. at 89.

After stating that these differences between the pres-

ent case and Mullaney and Specht were “controlling,” the

Court observed that its “inability to lay down any ‘bright

line’ test may leav? the constitutionality of statutes more

like those in Mullaney and Specht than is the Pennsylvania

statute to depend on differences of degree, but the law is

full of situations in which differences of degree produce

different results.” Id. at 91.

7 Mullaney held that Maine’s homicide statute, which

required a defendant charged with murder to prove that he

acted “in the heat of passion on sudden provocation” to reduce

a homicide charge from murder to manslaughter, violated due

process.

17

The Court’s analysis in these cases reaffirms the tra-

ditional, steadfast rule, reflected in Mullanéy, Sandstrom v.

Montana, 442 U.S. 510 (1979), and In re Winship, 397 U.S.

358 (1970), that a criminal defendant has the right to a

jury trial as to the facts that constitute elements of a

criminal offense. Although Spaziano holds that a capital

defendant has no right to a jury trial as to sentence, it

does not determine the circumstances under which a

defendant will have a right to jury trial as to facts that

lead to an enhanced sentence.

McMillan, which deals with the latter question, holds

that a defendant has no absolute right to a jury trial as to

facts that trigger a minimum mandatory sentence, but

McMillan takes pains to limit its holding to the particular

facts in that case. Based on McMillan’s analysis, the scope

of a defendant’s constitutional right to jury trial as to

facts that trigger an enhanced sentence appears to

depend on various factors, including the magnitude of

the sentence enhancement ard the sentencing provision’s

legislative history.

However, neither McMillan nor any of this Court's

other decisions purport to develop a test for determining

when a defendant will have a right to jury determination

as to facts that lead to an enhanced sentence.®

8 This Court has discussed some of the issuses implicated

by judicial fact-finding in Cabana v. Bullock, 474 U.S. 376 (1986).

Cabana reaffirmed the right to a jury trial on elements of the

crime. Id. at 715. The issue in Cabana, however, was whether a

defendant has a right to a jury determination of the findings

required by Enmund v. Florida, 458 U.S. 782 (1982). This Court

concluded that because the Eighth Amendment principles in

(Continued on following page)

18

C. A Proposed Test for Determining a Capital Defen-

dant’s Right to Jury Fact-finding.

In constructing a constitutional role for the jury, the

established boundaries - supported by history as well as

current Supreme Court authority — are that the defendant

has a right to jury trial as to facts that are elements of a

criminal offense but not as to sentencing. Moreover, as

McMillan implies, some limits must be placed on the

legislature’s authority to redefine elements of an offense

as factors to be considered only at sentencing. Otherwise,

by restructuring crimes so that facts that traditionally

lead to enhanced criminal liability are changed to sen-

tencing factors, the legislature could eliminate the defen-

dant’s right to a jury determination as to any facts

beyond the minimum necessary to establish criminal lia-

bility. The crime of homicide, for example, could be

redefined as unlawfully killing another, with traditional

mens rea elements, such as malice or recklessness

redefined as sentencing factors to be determined by the

judge.

(Continued from previous page)

Enmund do “not concern the guilt or innocence of the defen-

dant” and “establishes no new elements of the crime of mur-

der,” ‘there was no right to a jury trial on this issue. 474 U.S. at

715. Indeed, “Enmund ‘does not affect the state’s definition of

any substantive offense, even a capital offense.’ ” Id. at 715-16

(quoting Raddix v. Thigpen, 728 F.2d 705, 709 (Sth Cir. 1984).

Thus, Cabana never addressed the issue presented here:

whether the state may deny the right to a jury trial on elements

that, under state law, determine whether a defendant is guilty

of capital murder.

19

One principle that emerges from the seditious libel

law controversy is that facts pertaining to the actus reus

and mens rea of the offense must be treated as elements of «

the offense to be determined by the jury. In libel cases, for

example, the defendant’s right to a jury trial includes the

right to a jury determination as to whether the defendant

wrote the offending publication and whether he had the

requisite criminal intent. In homicide cases, the defendant

has the right to a jury determination as to whether he

killed the victim and whether he had the requisite mental

state to be found guilty of murder or manslaughter.

In the libel cases, of course, the factual elements to be

determined are necessarily elements of the offense; in the

absence of a finding that the defendant wrote the of-

fending publication with the requisite criminal intent, the

defendant would not be guilty of any crime. In homicide

cases, however, the jury’s determination as to the defen-

dant’s mental state is likely to affect the degree of the

offense rather than the question of whether the defendant

is guilty of any offense at all.

In situations where a factual determination leads to

conviction of a greater offense (or enhanced sentencing)

as opposed to the mere conviction of an offense, when

should that determination be treated as an element of the

offense as opposed to a factor to be considered at sentenc-

ing? Based on decisions of this Court, as well as the

historical concerns that underlie the right to jury trial,

Amici submit that the following test is appropriate: Facts

that lead to an enhanced sentence must be viewed as

elements of an offense for which a jury determination is

required if two conditions are met. First, the facts relate

to the circumstances of the crime rather than the charac-

ter of the offender; second, proof of the facts makes

possible a significantly enhanced sentence.

20

This approach is consistent with the framers’ proba-

ble view of the jury’s fact-finding role. In eighteenth

century jury trials, the norm was for the jury to determine

the facts relating to any circumstance of the offense that

had a bearing on the defendant’s criminal liability,

including facts that would magnify the degree of the

offense, and thereby increase the likelihood of a signifi-

cantly enhanced sentence when measured by either the

actual punishment imposed or the stigma that attached to

conviction. In homicide cases, for example, the jury

would decide whether the defendant was guilty of man-

slaughter or murder, two offenses that carried signifi-

cantly different punishments and markedly different

stigmas.

The focus upon whether the facts related to the cir-

cumstances of the offense rather than the character of the

offender also corresponds with the jury’s historical role.

In the Middle Ages, jurors were selected because of their

special knowledge of the crimes committed. Thus, these

jurors’ fact-finding authority naturally extended to all of

the circumstances of the crime. By contrast, judges would

decide whether the defendant was eligible for benefit of

clergy, a determination largely dependent on an appraisal

of the defendant’s personal characteristics.

The test is also consistent with modern Supreme

Court authority. In Specht v. Patterson, 386 U.S. 605 (1966),

the Court held that a defendant is entitled to constitu-

tional safeguards at sentencing when enhanced sentenc-

ing (in that case an increase of the maximum sentence

from ten years to life imprisonment) is based on “a new

finding of fact . . . that was not an ingredient of the

21

offense charged.” Id. at 608. In Specht, the right to jury

trial was not included within these constitutional safe-

guards because the Court had not yet held that the right

to jury trial applies to the states through the Due Process

Clause of the Fourteenth Amendment. Specht, together

with Duncan v. Louisiana, 391 U.S. 145 (1968), seems to

establish that the defendant has a right to jury trial at

sentencing as to facts that are required to make the defen-

dant eligible for the death penalty.

As explained earlier, this Court’s decisions in

McMillan v. Pennsylvania, supra, and Spaziano v. Florida,

supra, are not to the contrary. In McMillan, the Court

emphasized that the enhanced sentence resulting from

the finding of fact in that case was relatively insignificant

in comparison to the sentence enhancements involved in

the cases of Specht or Mullaney v. Wilbur. Thus, the Court

left open the question whether a defendant will have the

right to a jury determination as to a fact relating to the

circumstances of the offense that leads to a substantial

sentence enhancement.

In Spaziano, the Court’s decision that jury sentencing

was not required at the Florida penalty stage was based

on its conclusion that this sentencing proceeding

“involves the same fundamental issue involved in any

other sentencing proceeding - a determination of the

appropriate punishment to be imposed on an individual.”

468 U.S. at 459. Aithough Florida’s sentencing statute

does require the sentencing judge to make findings on

aggravating and mitigating circumstances, the petitioner

in Spaziano did not challenge this aspect of the Florida

sentencing procedure. Moreover, the death penalty before

the Court in Spaziano could have been predicated on a

22

finding that pertained to the characteristics of the defen-

dant rather than the circumstances of the offense.? Thus,

the Court’s holding that a capital defendant is not consti-

tutionally entitled to jury sentencing seemed to be prem-

ised on the conclusion that capital sentencing essentially

involves a “largely moral judgment of the defendant's

desert,” Caldwell v. Mississippi, 472 U.S. 320, 341 n.7

(1985), rather than a determination of facts that pertain to

the circumstances of the offense.

D. The Jury Trial Right in the Present Case.

Applying the test to the Walton case indicates that the

Arizona Supreme Court erred in rejecting petitioner's

Sixth Amendment challenge. Under the Arizona statute, a

capital defendant may not be sentenced to death unless at

least one aggravating circumstance is found to exist. See

9 The first of the two aggravating circumstances found to

exist in Spaziano — that the defendant had a prior felony convic-

tion — related to the character of the offender rather than the

circumstances of the offense. Based on the Court's decision in

Barclay v. Florida. 462 U.S. 939 (1983), a Florida death penalty

will be constitutional if the sentencer determines that at least

one valid aggravating circumstance is present even though one

of the other aggravating circumstances weighed against the

mitigating circumstances is invalid. Therefore, in Spaziano it

would be unnecessary to determine whether the second aggra-

vating circumstance - relating to whether the crime was hei-

nous or atrocious — was invalid because it was determined to

exist by a judge rather than a jury; under Barclay, the death

penalty could stand on the basis of the aggravating circum-

stance that related to the character of the offender and there-

fore, under the proposed test, could be found to exist by a

judge.

—_— -_.- -

23

Ariz. Rev. Stat. Ann. Sec. 13-703(E) (1978). The aggrava-

ting circumstances are specific, enumerated factual find-

ings that define the act of capitally eligible murder, an act

which, until the Legislature intervened in the 1970s, was

always within the jury’s province to find under Arizona

law.'° In Walton’s case, the trial judge concluded that two

aggravating circumstances were present: first, the defen-

dant “committed the offense in an especially heinous,

cruel, or depraved manner;” and, second, “he did so for

pecuniary gain.” Obviously, both of these aggravating

circumstances pertain to the defendant’s actions, and his

mental state at the time he participated in the killing of

the victim. Thus, the first prong of the proposed test is

met, in that the facts to be determined relate to the

circumstances of the offense.

The second prong of the test is also easily met. A

finding that one of the aggravating circumstances exists

enhances the defendant's potential sentence from twenty-

five years to execution. In view of this Court’s repeated

statements that the sentence of death is qualitatively dif-

ferent from a sentence of any term of imprisonment, see,

e.g., Solem v. Helm, 463 U.S. 277, 294 (1982); Woodson v.

North Carolina, 428 U.S. 280, 305 (1975), it is scarcely

necessary to argue that this increase constitutes a signifi-

cantly enhanced sentence. A capital crime is immeasur-

ably more serious than a non-capital crime.

~~

be From 1901 to 1973, Arizona law delegated to the jury all

decisions on the nature and degree of an unlawful killing

including whether the crime was mitigated by excuse or justi-

fication, and whether a capital sentence was appropriate. See

Adamson v. Ricketts, 865 F.2d 1011, 1024-25 (9th Cir. 1988).

*

24

CONCLUSION

For the foregoing reasons, amici respectfully request

that this Court conclude that the Arizona death penalty

statute violates the Sixth Amendment.

*WeisH S. WHITE Joun A. POWELL

305 Law School Building = MicHaet LAURENCE

University of Pittsburgh American Civil Liberties

Pittsburgh, PA 15260 Union Foundation

: 132 West 43rd Street

Ranpy Hentz New York, NY 10063

New York University

School of Law SHAWN D. RENNER

249 Sullivan Street Cune, WituiaMs, WRIGHT

New York, NY 10012 JOHNSON & OLDFATHER

1900 FirstTier Bank Bldg.

Lincoln, NE 68508

Attorneys for Amici Curiae

*Counsel of Record