# Respondents Brief — Lewis v. Jeffers

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0659%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 764

## Text

"BEST AVAILABLE COPY

COUNTERSTATEMENT OF QUESTION PRESENTED:

Whether the Court cf Appeals for the
Ninth Circuit correctly heid that
Arizona’s construction of its

"especially heinous ... or depraved"

aggravating circumstance in this case

violated the rule of Godfrey vy. Georgia
and Maynard vy. Cartwright.

@ fi «

COUNTERSTATEMENT OF THE QUESTION

PRESENTED .....sss««s ecececceseseeses i
TABLE OF CONTENTS .. 1... cccccccccuuces ii
TABLE OF AUTHORITIES ......ccscccuucs iv
CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......ccseuuuues 1
STATEMENT OF THE CASE ......ssceseues 1
A POGCS cccccccccccecseesess 1
B. Trial Court Proceedings . 9

c. Proceeding in the Ari-
zona Supreme Court ...... 13

D Federal Habeas Corpus
Proceedings .......sssuus 1?
SUMMARY OF ARGUMENT ... 2... cccccuuues 23
RIMES cc ccccccccececeseeeeseeeeese 29
I. INTRODUCTION 2... ccccccceues 29

II. MAYNARD AND DICTATE

THE COURT OF APPEALS’

CONCLUSION THAT THE ARIZONA
“ESPECIALLY HEINOUS ... OR
DEPRAVED" CIRCUMSTANCE FAILED

TO SERVE ITS CONSTITUTIONAL
NARROWING FUNCTION ........55. 38

IIl.

- iii -

A. The Arizona Supreme
Court’s Construction of
the "Especially Heinous
+++ Or Depraved" Circum-
stance Runs Afoul of the
Eighth Amendment Rule of

MAYMNAEG ..ccccccccecesees 38

B. The Arizona Courts’
Application of the
"Heinous ... or De-
praved" Aggravating
Circumstance in Mr.
Jeffers’ Case Runs Afoul
of the Eighth Amendment

Rule of Godfrey ......... 74

ARIZONA’S EFFORTS TO AVOID

THE CLEAR DICTATES OF MAYNARD

AND GODFREY BY CREATING A
SPURIOUS “STANDARD OF REVIEW"
ISSUE ARE UNAVAILING ......... 91

CONCLUSION se ereeeneneneneneneneneneneneneneneeneneeee#se 107

APPENDIX A: Arizona Revised

Statute § 13-703 ........ A-1

APPENDIX B: Arizona Trial and

Supreme Court Treatment

of the (F) (6)

Aggravating Circunm-

stance, 1974-89 .......4.. B-1

- iv -

TABLE OF AUTHORITIES

Adamson v. Ricketts, $65 F.2d
1011 (9th Cir. 1988),

Arizona v. Rumsey, 467 U.S. 203
(1984) *enrioeneeneeeeee#e#ee#rfee#s#free#e#eete##e###* *#

Barclay v. Florida, 463 U.S.
939 (1983) *eeeneteneere ee ne © fe ff © *-

Cabana v. Builock, 474 U.S. 376
(1986) *enreoenrwere e#eeee#efe#nfee#e##fe#e##e###e#e#e

California v. Brown, 479 U.S.
538 (1987) ne frees © # &#© * se ffteee

California v. Ramos, 463 U.S.
992 (1983) *enrieneneeenrtneeeee#eeee#e#e#e«

Cartwright v. Maynard, 822 F.2d
1477 (10th Cir. 1987), aff'd,
486 U.S. 356 (1988) ..nesaeees

Chaney v. Lewis, 801 F.2d 1191
(9th Cir. 1986), cert.

denied, 481 U.S. 1023
(1987) re fe feeneneneneeneeeeee re fee

Chevron U.S.A. v. Natural
Resources Defense Council,
467 U.S. 837 (1985) ..ncencces

passim

31

31, 32,
37, 96

103

32

77

passim

20

43

Cuyler v. Sullivan, 446 U.S.
335 (1980) *enrneneteeneneneteneeneeeeee

Drope v. Missouri, 420 U.S. 162
(1975) *eeeeneeeneneeneeneneeneeeeeee

Eddings v. State, 616 P.2d
1159 (Okla. Crim. App.
1980), rev’d on other

grounds, 455 U.S. 104
(1982) eee eee eee eeeeeeeeeeee

Ford v. Strickland, 696 F.2d
804 (llth Cir.), cert.
denied, 464 U.S. 865 (1983)

Francis v. Franklin, 471 U.S.
307 (1985) *enrewnenenetee eeee eee#s#ee#ese#e*«

Furman v. Georgia, 408 U.S.
238 (1972) se fe fteeeneeneneneeeneeeesse

Gardner v. Florida, 430 U.S.
349 (1978) *enereneneeeene eee e#eeeee#se

Godfrey v. Georgia, 446 U.S.

420 (1980) wccccecssesccsseces

Gregg v. Georgia, 428 U.S. 153
(1976) ere eeweeneeneeneneenenee#eeee#e

Haynes v. Washington, 373 U.S.

503 (1963) ef fe ff se ereeeeeeeeee

Jackson v. Denno, 378 U.S. 368

(1964) wccccccccsecs coeecceces 7

104

104

50

96

104

passim

32

passim

31, 33,
35, 42,
71, 97

99

100

-vi-

Jackson v. Virgina, 443 U.S.
307 (1979) *enreneeneeneeneeeneeeneee#e

Jeffers v. Ricketts, 832 F.2d
476 (9th Cir. 1987), cert.

granted, 110 S. Ct. 232
C19B9) cccccccccccccccccscceces

Jeffers v. Ricketts, 627 F.
Supp. 1344, °

° , 832 F.2d

476 (9th Cir. 1987), cert.

granted, 110 S. Ct. 232
i ic enbegneenadeseesnse

Lockett v. Ohio, 438 U.S. 586
(1978) *ereeneneeeeeneeeeeeeeees###e#e#e«

Lowenfield v. Phelps, 484 U.S.
213, 108 S. Ct. 546 (1988)

Magwood v. Smith, 791 F.2d
1438 (llth Cir. 1986),
, 110 S. Ct.
SDL (19B9) accccesecsesccceses

Maynard v. Cartwright, 486 U.S.
356, 108 S. Ct. 1853 (1988)

McCleskey v. Kemp, 481 U.S.
BVO CAOSTD cocccececececeseece

Miller v. Fenton, 474 U.S. 104
C29GS) ceccccccs TYETELILITTTT

96

passim

32, 44,
97, 105

100, 101

- vii -

Mills v. Maryland, 486 U.S.
367, 108 S. Ct. 1860 (1988) ..

Mincey v. Arizona, 437 U.S. 385
(1978) *eereeneneeneneeneeeneeneneeeeees

Newlon v. Armontrout, 885 F.2d
1328 (8th Cir. 1989) .....46-.

Norris v. Alabama, 326 U.S. 271
(1945) sr eeeeweeesee eeeeee eee

Penry v. Lynaugh, 109 S. Ct.
2934 (1989) nnn necnneceencnces

Proffitt v. Florida, 428 U.S.
242 (1976) ne ee feeweeneeneee ee eee © «@

Proffitt v. Wainwright, 685
F.2d 1227 (llth Cir. 1982),

cert. denied, 464 U.S. 1002
(1983) ne feewee ee#eee#ee #teeee#esess#s#** * «

Pulley v. Harris, 465 U.S. 37
(1984) eft eee eeeeeneeeeees *+ ** *# * «

Rogers v. Richmond, 365 U.S.
534 (1961) ei efeeeeeeese eee ee @

Smith v. Phillips, 455 U.S. 209
CA2GSSZ) ceocccceseceeseseseceses

State v. Arnett, 125 Ariz. 201,
608 P.2d 778 (1980) ...ceeeees

State v. Arnett, 119 Ariz. 38,
579 P.2d 542 (1978) ...ceeeecs

37,

103

100

44

104

103

45,

47

56,

106

30,
72

101

43

60

89

- viii -

State v. Beaty, 158 Ariz. 232,
762 P.2d 519 (1988), cert.
denied, 109 S.Ct. 3200
(1989) ccccccccccccccscscscsesss 44, 48,

State v. Blazak, 131 Ariz. 598,

643 P.2d 694, cert. denied,
459 U.S. 882 (1982) .......... 60, 89

State v. Brookover, 124 Ariz.
38, 601 P.2d 1322 (1979) ..... S54, 62,

State v. Carr, 154 Ariz. 468,
743 P.2d 1386 (1987) ....4+++- 60, 86,

89
State v. Carriger, 143 Ariz.
142, 692 P.2d 991 (1984),
cert. denied, 471 U.S. 1111
(1985) ee ewneeweeeeeeeeneeeeteee ff *§ *© © © 48, 67
State v. Ceja, 126 Ariz. 35,
612 P.2d 491 (1980) ...cnnaees 49, 65,
88
State v. Ceja, 115 Ariz. 413,
565 P.2d 1274, cert. denied,
434 U.S. 975 (1977) waneeeeues 49, 88
State v. Clark, 126 Ariz. 428,
616 P.2d 888, cert. denied,
449 U.S. 1067 (1980) .....46. 84
State v. Correll, 148 Ariz.
468, 715 P.2d 721 (1986) ..... 49, 50,
64, 67

State v. Cruz-Mata, 138 Ariz.
370, 674 P.2d 1368 (1983) .... 62

- ix -

State v. Dixon, 283 So. 2d 1

(1973), cert. denied, 416
U.S. 943 (1974) ..cceeeeeeeees

State v. Fisher, 141 Ariz. 227,

686 P.2d 750, cert. denied,
469 U.S. 1066 (1984) .........

State v. Fulminante, 161 Ariz.
237, 778 P.2d 602 (1988),

petition for cert. filed .....

State v. Gerlaugh, 144 Ariz.
449, 698 P.2d 694 (1985) .....

State v. Gillies, 142 Ariz.
564, 691 P.2d 655 (1984),

cert. denied, 470 U.S. 1059
(1985S) wccccccesessseseseseses

State v. Gillies, 135 Ariz.
500, 662 P.2d 1007 (1983) ....

State v. Girdler, 138 Ariz.
482, 675 P.2d 1301 (1983),

cert. denied, 467 U.S. 1244
(1984) rer reeeeeeneeeeeteeeteeteess *© * © ©

State v. Graham, 135 Ariz. 209,
660 P.2d 460 (1983) .....see6.

State v. Gretzler, 135 Ariz.

42, 659 P.2d 1, cert. denied,
461 U.S. 971 (1983) ..........

State v. Harding, 141 Ariz.
492, 687 P.2d 1247 (1984)

45, 47

48, 64,

69

84, 88

69, 84

64, 65

State v. Harding, 137 Ariz.
278, 670 P.2d 383 (1983),

cert. denied, 465° U.S.
1013 (1984) e*eeeeeeeseeeeee3#e#eeeee

State v. Hensley, 142 Ariz.
598, 691 P.2d 689 (1984) .....

State v. James, 141 Ariz. 141,

685 P.2d 1293, cert. denied,
469 U.S. 990 (1984) ...ceeeees

State v. Jeffers, 135 Ariz.
404, 661 P.2d 1105, cert.
denied, 464 U.S. 865 (1983) ..

State v. Johnson, 147 Ariz.
395, 710 P.2d 1050 (1985) ....

State v. Kinkade, 147 Ariz.
250, 709 P.2d 884 (1985) .....

State v. Knapp, 114 Ariz. 531,
562 P.2d 704 (1977), cert.

denied, 435 U.S. 908
(1978) *eeeeeeneenereneeneeeeeee ee

State v. LaGrand, 153 Ariz. 21,

734 P.2d 563, cert. denied,
484 U.S. 872 (1987) e*eeeeneeee8e

State v. Lamb, 142 Ariz. 463,
690 P.2d 764 (1984) eeeeeeeneeee

State v. Lambright, 138 Ariz.
63, 673 P.2d 1 (1983), cert.

denied, 469 U.S. 892 (1984) ..

50

67

48, 61,
55, 66
13, 49,
50, 54
49, 62,
63, 68
86

46, 69,
77

57, 88
87

61, 84

- xi-

State v. Libberton, 141 Ariz.
132, 685 P.2d 1284 (1984) ....

State v. Lujan, 124 Ariz. 365,
604 P.2d 629 (1979) wns eeeeees

State v. Madsen, 125 Ariz. 346,

609 P.2d 1046, cert. denied,
665 Gl, GEO GED ce cseeces

State v. Martinez-Villareal,
145 Ariz. 441, 702 P.2d 670,

cert. denied, 474 U.S. 975
(1985) ee eeeseeeees#ee#ee#ee#efnfeee#e#e#5e#e##se##e#*#

State v. McCall, 139 Ariz. 147,
677 P.2d 920 (1983), cert.
denied, 467 U.S. 1220 (1984)

State v. Montes, 136 Ariz. 491,
667 P.2da 191 (1983) e*eeeneee#eeesetees

State v. Moorman, 154 Ariz.
578, 744 P.2d 679 (1987) .....

State v. Ortiz, 131 Ariz. 195,
639 P.2d 1020 (1981), cert.
denied, 456 U.S. 984 (1982) ..

State v. Poland, 144 Ariz. 388,
698 P.2d 183 (1985), aff'd,
476 U.S. 147 (1986) ......4.4..

State v. Richmond, 136 Ariz.
312, 666 P.2d 57, cert.
denied, 464 U.S. 986 (1983)

44

49, 63

48, 62,
69, 86

48, 61,
68

57, 64,
88

62

55, 68

50, 65

54, 62

44, 50,
60, 63,
69, 89

- xii -

State v. Rockwell, 161 Ariz. 5,
775 P.2d 1069 (1989) ....2e6--

State v. Roscoe, 145 Ariz. 212,

700 P.2d 1312, cert. denied,
471 U.S. 1094 (1985) .........

State v. Rossi, 146 Ariz. 359,
768 B.B8 SPR GEOEED cdccccvce:

State v. Schad, 129 Ariz. 557,
633 P.2d 366 (1981), cert.
denied, 455 U.S. 983 (1982) ..

State v. B. Smith, 146 Ariz.
491, 707 P.2d 289 (1985) .....

State v. R.D. Smith, 138 Ariz.
79, 673 P.2d 17 1983), cert.
denied, 465 U.S. 1074 (1984) .

State v. R.L. Smith, 141 Ariz.
510, 687 P.2d 1265 (1984) ....

State v. Steelman, 126 Ariz.
19, 612 P.2d 475, cert.
denied, 449 U.S. 913 (1980) ..

State v. Summerlin, 138 Ariz.
. 426, 675 P.2d 686 (1983) eeeeve

State v. Ricky Tison, 129 Ariz.
526, 633 P.2d 335 (1981),

cert. denied, 459 U.S. 882
TEOUED cccececoceseseseoseeses

60, 87

65, 68

84

68

48, 49,
54, 62,
63, 69

60, 61,
67, 89

61, 63,
68, 87

48

~ xiii -

State v. Vaughn, 147 Ariz. 28,
708 P.2d 453 (1985) ..eeeeeees 86

State v. Vickers, 159 Ariz.
532, 768 P.2d 1177 (1989) .... 54

State v. Vickers, 129 Ariz.
506, 633 P.2d 315 (1981) ..... 48, 84

State v. Villafuerte, 142 Ariz.
323, 690 P.2d 42 (1984),

cert. denied, 469 U.S. 1230
(1985) e*eeoeeeene4ee#*eeeeneteeeeeeeee#ee 63, 65

State v. Wallace, 160 Ariz.
424, 773 P.2d 983 (1989),

eecce 49, 50,
54, 68
State v. Wallace, 151 Ariz.
362, 728 P.2d 232 (1986),
cert. denied, 483 U.S. 1011
(1987) e*eeeeeeseeee#seee#e7#*ee*en+eoe*e#eee#e?es#ts?#* 44, 59,
66
State v. Watson, 120 Ariz. 441,
586 P.2d 1253 (1978),
, 440 U.S. 924
(1979) *e*eeeeeeseeenseeense@#e#enseeeneneeeee#e#see## 10, 45,
60, 89
State v. Williams, 1987 W.L.
878 (Ariz. Oct. 8, 1987) ..... 55
State v. Woratzeck, 134 Ariz.
452, 657 P.2d 865 (1983) ..... 50

State v. Zaragoza, 135 Ariz. Other Authorities
63, 659 P.2d 22, cert.
— denied, 462 U.S. 1124 Rosen, The “Especially Heinous"
TEDEEE cécccecocosccocosseoese Gy Gy Aggravating Circumstance in
54, 65, Capital Cases, 64 N.C.L. Rev.
66, 67, B42 (2966) ccccccccccccccccces 70
68 R. Stern, E. Gressman & S.
Shapiro, Supreme Court
Stein v. New York, 346 U.S. 15 Practice (6th ed. 1986) ...... 42, 43
(1953) wccccccseseseseeeseeess 100
Teague v. Lane, 109 S. Ct.
1060 (1989) wuceceseeeeeeevees 66
Tison v. Arizona, 481 U.S. 137
BOOP) cocccccccecesosoosoeces 103

United States v. New York
Telephone Co., 434 U.S.
159 (1977) e*enereeeeneenseneeeneeeneeee 43, 93

Washington v. Yakima Indian
Nation, 439 U.S. 463 (1978) ..

Zant v. Stephens, 462 U.S. 862
(1983) e*enereeeneeneteeeeeneeneeeeeee passim

Statutes

Ariz. Rev. Stat. § 13-703
(1989) e*eeeeeeeeeeeeeeeeeeeeee 1,
ll,

CONSTITUTIONAL AND STATUTORY
- PROVISIONS INVOLVED

In addition to the constitutional
provisions cited in Petitioner’s Brief,
this case involves Arizona Revised
Statute § 13-703, which is set forth in

Appendix A to this Brief.
STATEMENT OF THE CASE

A. Facts

In May 1973, the defendant Jimmie Wayne
Jeffers and the victim Penelope Cheney
met in a heroin rehabilitation program in
Tucson, Arizona and began dating. fT. 15:
156-59.1 Ms. Cheney was addicted to
heroin then and almost continuously
until her death five and one-half years
later; so was Mr. Jeffers until his

subsequent arrest. T. 10:94-95, 14:17,

let * refers to the transcript of the guilt-
innocence trial, followed by the volume and page
numbers cited. "T." preceded by a date refers to
transcripts of proceedings other than the guilt-
innocence trial, which are identified by date.

15:10-12, 15:154-55.

In October 1975, Ms. Cheney moved in
with Mr. Jeffers, and the two lived
together off and on until they were
arrested in May 1976 for possession of
narcotics and stolen property. T.
15:159. During their residence together,
Mr. Jeffers financed their substantial
drug habits, and the two conducted a
stormy relationship characterized by
frequent arguments and brief separations.
T. 10:77-83, 10:91, 15:17-18, 15:28,
15:104, 15:173-80; Apr. 14, 1978 T. so.

After their arrest, Mr. Jeffers,
remaining incarcerated himself, posted
bond for Ms. Cheney, paid for his
attorney to represent her in the case,
and continued supporting her financially.
14:135-45, 15:188-89. During the late
spring and summer of 1976, Ms. Cheney
dropped out of the drug rehabilitation

———

program in which Mr. Jeffers had
persuaded her to enroll, used the rent
money Mr. Jeffers had provided her to buy
drugs, moved in first with one and then
with another male friend of Mr. Jeffers,
stopped visiting him in jail and began
visiting another inmate in the same cell
block, and provided information to the
police -- about which their joint
attorney informed Mr. Jeffers --
concerning Mr. Jeffers’ heroin supplier
and other associates. T1T.6:118, 10:57-58,
10:70-71, 10:81-82, 11:137, 15:16-17,
15:85-86, 15:189-94, 16:51-63.

Mr. Jeffers was released from jail on
bond on October 8, 1976. On October 15,
he met Ms. Cheney and proposed that they
again live together. T. 16:75-78. Ms.
Cheney informed Mr. Jeffers that she had
become a prostitute to support her drug
habit and had moved in with the man with

whom she was sharing the proceeds of her
work. Ms. Cheney then demanded money and
drugs in return for sexual relations
with Mr. Jeffers. T. 5:100-01, 10:73-75,
14:24, 16:75-87.

A few days later, Mr. Jeffers invited
Ms. Cheney to the motel room he shared
with Doris Van Der Veer, offering Ms.
Cheney heroin and proposing that she give
up prostitution and come back to live
with him.2 T. 5:102, 16:96-98. On
October 21, 1976, Ms. Cheney telephoned
in the morning to say that she was on her
way over. Ms. Van Der Veer subsequently

found Mr. Jeffers "showered, shaved and

2mr. Jeffers met Ms. Van Der Veer several hours
after learning that Ms. Cheney had become a
prostitute. Ms. Van Der Veer spent that night
and the next two months with Mr. Jeffers. T.
6:96-100. A convicted drug dealer, Ms. Van Der
Veer had been involved in smuggling cocaine from
Mexico in the preceding months and was dealing
marijuana in Tucson. T. 5:82, 6:79-80, 6:218-19,
19:53-54; Mar. 6, 1978 T. 6-8.

a ee

changed" and visibly "happy and excited"
at the prospect of Ms. Cheney’s visit. |
At Mr. Jeffers’ request, Ms. Van Der Veer
agreed to leave the room when Ms. Cheney
arrived so that Mr. Jeffers could "talk
to [Ms. Cheney] about going back with
her." T. 5:106, 6:138. Ms. Van Der Veer
was gone two and one-half hours. T.
5:113-17. During this time, she once saw
Mr. Jeffers and Ms. Cheney leave the room
for a moment to buy cigarettes; they were
"laughing and smiling and holding hands."
T. 52116, 6:143.

When Ms. Van Der Veer returned to the
motel room, she witnessed Ms. Cheney’s
death. What occurred, as the trial judge
in his sentencing order based upon Ms.

Van Der Veer’s testimony, was this:2

3These events “were not reported [to the police]
until three months later despite Van Der Veer
being an eyewitness" -- a three-month period
during which Ms. Van Der Veer was in frequent

Alone with the victim in the motel
room, the defendant proceeded to give
her heroin which she administered
herself or which he administered to
her. She was an heroin addict. After
the initial injections, the defendant
subsequently injected large dosages of
heroin into the victim.

When Doris Van Der Veer returned
to the room, the victim was lying part
on and part off the bed on her back.
She was cyanotic. The defendant had a

telephone and face-to-face contact with state
law enforcement officials pursuant to her
activities as a paid informant of the Arizona
state police agency in regard to drug
trafficking in Tucson. Jeffers v, Ricketts, 627
F. Supp. 1334, 1347 (D. Ariz. 1986); T. 6:43-55,
7:47-48, 7:116-34, 8:70, 8:82-89. Because Ms.
Van Der Veer refused to talk to the police or to
testify until being granted immunity for two
federal weapons violations and “heroin transac-
tions, marijuana transactions, [armed] burglary,
and ... [being an] accessory to murder,” Ms. Van
Der Veer’s "[c]redibility ... was in issue.”
Jeffers v, Ricketts, 627 F. Supp. at 1344. See
T. 5:83, 6:15, 6:217-19, 7:55-67, 7:130-31, 8:54,
8:63, 8:98-110, 8:113-15, 9:171, 9:193-97,
12:107-09, 13:144-59.

4Every prosecution and defense witness who knew
Ms. Cheney testified that she “had an enormous

appetite for heroin" (T: 5-105) and had a history

of injecting or ingesting as much heroin or “any
narcotic" as “she could get her hands" on at one

time, often lapsing into unconsciousness when she

did so. T. 10:81, 10:94-97, 11:119, 11:122,
14:19, 14:44, 15:18-22, 15:96-99, 15:185.

gun in his hand and after order[ing)
Van Der Veer to lock the door and stay
in the room, he tied the victim’s arms
and injected some additional heroin
into her hand.

He asked Van Der Veer to check the
victim and see if she was still alive.
Van Der Veer did and and [sic]
determined that the victim was still
breathing although there was hardly any
pulse, and she had started to foam at
the mouth.

The defendant then strangled the
victim with a belt and with his hands
until her breathing did stop. During
all this period of time, the victim was
completely limp and unable to resist in
any way.

Shortly thereafter the defendant
beat the dead victim with his hands
about the face four or five times.> He
then took the victim off the bed and
placed her body in the shower stall in
the motel room where it remained for
three days.

J.A. 13-14 (footnotes added).

The trial court found that Mr. Jeffers

S"While striking the victim," Mr. Jeffers cursed
her and “stated that each blow was for one of the
persons [whose arrest] ... Jeffers believed Penny
[Cheney] to have been responsible for ...."
Jeffers v. Ricketts, 627 F. Supp. at 1360.

"may have had reason to be provoked” and
"was under some [emotional] stress" due
to Ms. Cheney’s rejection of his

proposal that they live together again
and 1er insistence that any resumption of
relations between them be predicated on
his paying her money or drugs. J.A. 16.
See Apr. 14, 1978 T. 62-65; June 20, 1980
T. 9-10, 16-17. The court also found
that Mr. Jeffers was a heroin addict and
“was both drinking and using narcotics on
the day of the offense." J.A. 15. See
T. 5:103-04, 5:137-38, 6:213-15; Apr. 14,
1978 T. 62-64; June 20, 1980 T. ll, 16,
43-44, 77-79. Ms. Van Der Veer testified
that a few weeks after Ms. Cheney died,
Mr. Jeffers became so depressed about her
death that he attempted to and nearly did
commit suicide, injecting at least eight
doses of heroin and ingesting substantial
quantities of valium, darvon, chloro-

fe i eS

hydrate tablets (a sleeping pill), and
whiskey. T. 6:33-34, 7:110-11 9:178-

79, 9:220-21, 14:164-71, 17:42-45.

B. Trial Court Proceedings

On February 9, 1978, a jury convicted
Mr. Jeffers of premeditated first-degree
murder.

Two months later, the trial judge
conducted a sentencing hearing at which
be sentenced Mr. Jeffers to die. Apr.
14, 1978 T. 52-82. J.A. 5-10. Following
this Court’s decision in Lockett v. Ohio,
438 U.S. 586 (1978), the Arizona Supreme
Court remanded Mr. Jeffers’ case for
resentencing under a procedure permitting
broader consideration of mitigation. See
State v. Watson, 120 Ariz. 441, 586 P.2d

1253 (1978), procedure codified in Ariz.
Rev. Stat. § 13-703.

Under that procedure, the trial judge

- 10 -

could not impose a death sentence unless
the state proved at least one
statutorily enumerated aggravating
circumstance beyond a reasonable doubt.
He was required to “impose a sentence of
death if ... [he found] one or more ...
aggravating circumstances" and Mr.
Jeffers did not establish one or more
"mitigating circumstances sufficiently
substantial to call for leniency." Id. §
13-703(E). To determine whether the
mitigation warranted leniency, the trial
court had to "determine whether the
factors in mitigation outv igh[ed] the
aggravating circumstances." J.A. 66.
See Ariz. Rev. Stat. § 13-703(E).

Two days before the 1978 sentencing
hearing, the Assistant County Attorney
had informed counsel for Mr. Jeffers that
he did not think the murder qualified as
“especially heinous, cruel or depraved"

-il1-

under Arizona’s (F)(6) aggravating
circumstance, id. § 13-703(F), because
the victim did not experience any pain.
Apr. 14, 1978 T. 24, 37-38, 42. Yet at
both sentencing hearings the prosecutor
submitted the (F)(6) circumstance as we?
as the circumstance defined by subsection
(F)(2): that the defendant created a
grave risk of death to another person in
the commission of murder. Ariz. Rev.
Stat. § 13-703(F)(2). Apr. 14, 1978 T.
37-38.6

In 1978 and again in 1980, the trial
judge found both aggravating
circumstances. Each time he emphasized
the conjunctive nature of his finding

that "(t)he defendant committed the

Sat both proceedings, Mr. Jeffers argued that,
unless limited to torture, the “heinous, cruel or
depraved" circumstance was unconstitutionally
vague and overbroad, citing (in 1980) Godfrey v.
Georgia, 446 U.S. 420 (1980). Apr. 14, 1978 T.
37-44; July 10, 1980 T. 196.

- 12 <-

offense of first degree murder in an
especially heinous, cruel, and depraved
manner." J.A. 7, 12. See Apr. 14, 1978
T. 37; June 20, 1980 T..3. At the first
sentencing hearing, the trial court
explained its (F)(6) finding only by
stating that "(t]he Court has considered
the defendant’s behavior ... after the
death of the victim." J.A. 8. In 1980,
the court followed its finding with the
statement of facts quoted above on pp. 6-
7.7 J.A. 12-14.

After hearing additional evidence in
mitigation at the 1980 proceeding, the
trial judge concluded “that there are no
mitigating circumstances." J.A. 15. He

thereupon resentenced Mr. Jeffers to

The court based its "grave risk" conclusion on
the jury’s conviction of Mr. Jeffers of
assaulting Ms. Van Der Veer by pointing a gun at
her when she returned to the motel room. J.A.
6, 14.

-13-

die. J.A. 16.

C. Proceedings in the Arizona Supreme
Court

On direct appeal, the Arizona Supreme
Court affirmed Mr. Jeffers’ convictions.
State v. Jeffers, 135 Ariz. 404, 661
P.2d 1105 (1983). J.A. 17. With regard
to his death sentence, the court reversed
the trial court’s determination that mr.
Jeffers "knowingly created a grave risk
of death to another person,"® and also
reversed the trial court’s conclusion
that the defendant “committed the offense
in an especially ... cruel ... manner:"

(T)he element of cruelty was not

proven. There was no evidence that the
victim suffered any pain. It appears

8the court noted that its "grave risk" decisions
involved “indiscriminate attacks in which the
murderous act itself (had) put others in a danger
zone, such as bombing an inhabited building” and
refused to “stretch the statute to the extreme
length" to which the trial court had stretched
it. J.A. 58-59.

from the record that after the
injection of heroin, the victim lost
consciousness and never regained it
before she died. Therefore, the
victim experienced no pain or mental
suffering and the murder was not
‘cruel’ for purposes of A.R.S. §
703 (F) (6).
J.A. 60.

Coming to the last remaining basis on
which it could sustain Mr. Jeffers’ death
sentence, the Arizona Supreme Court noted
that the "sentencing judge apparently
based his finding that the murder was
‘especially heinous ... and depraved’ on
Doris [Van Der Veer’s] testimony that
appellant strangled the victim while she
was totally unable to resist, beat the
dead victim about the face and reviled
her" and on "“appellant’s [manner of]
disposing of the body." J.A. 60-61.
Foreswearing reliance on the latter
factor -- on which, the supreme court

acknowledged, the trial court “largely”

- 15 -

had relied -- the supreme court concluded
that "the events surrounding the murder
itself support the trial court’s finding
that the murder was ‘especially heinous
+++ and depraved.’" J.A. 61-62. In
reaching this conclusion, the court
referred to dictionary definitions of
"heinous" as "‘hatefully or shockingly

evil; grossly bad’" and of "depraved" as

"marked by debasement, corruption,

perversion or deterioration.’" It noted
two factors that its recent decision in
State v. Gretzler, 135 Ariz. 42, 659 P.2d
1 (1983), had extracted from previous
cases and identified as ones "such as"
those that capital sentencing judges
could consider (but need not rely on):
"the infliction of gratuitous violence on
the victim" and "the apparent relish with
which the defendant commits the murder."

It then concluded that Mr. Jeffers’ words

- 16 -

and actions at the time of the killing
“establish that the offense was
committed in an especially heinous and
depraved manner." J.A. 60-63.

After reviewing the evidence in
mitigation -- inter alia, provocation,
emotional stress, and intoxication --
the Arizona Supreme Court replaced the
trial court’s "no mitigating
circumstances" finding with the finding
that Mr. Jeffers had shown "no mitigating
factors sufficiently substantial to...
outweigh the aggravating circumstance[]."
J.A. 66. It rejected Mr. Jeffers’

Godfrey challenge to the "heinous, cruel

or depraved" aggravating circumstance,
finding that Gretzler and cognate case
law had narrowed the statutory phrase by
"limit(ing] its application to cases
which stand apart from the norm," J.A.

64, and emphasizing its insistence “that

- 17 -

the murder be especially cruel or
especially depraved before this section
would apply," J.A. 63 (emphasis in
original). It thus affirmed Mr. Jeffers’

death sentence.

D. Federal Habeas Corpus Proceedings

Mr. Jeffers’ sought federal habeas
corpus relief, alleging that Arizona’s
"interpretation" of the "especially
heinous ... or depraved" aggravating
circumstance "is unconstitutionally
overbroad and vague and permits the
arbitrary imposition of the death
penalty." First Amended Petition, at 17.
The district court rejected this
contention. Jeffers v. Ricketts, 627 ¥.
Supp. 1334, 1359-60 (D. Ariz. 1986).

In the Court of Appeals, Mr. Jeffers
argued that his challenge to the

“especially heinous" circumstance

- 18 -

encompassed three questions: Whether the
words of the statute are unconsti-
tutionally vague and overbroad on their
face (citing Godfrey v. Georgia, 446 U.S.
at 428-29); whether the Arizona Supreme
Court had failed to "consistently define([
the statute] by ‘clear and objective
standards’ that ‘provide specific and
detailed guidance’ that makes ‘rationally
reviewable the process for imposing a
sentence of death’" (citing jd. at 428);
and whether the statute was “applied to
the capital defendant ... in an overly
broad manner" (citing jd. at 432).
Opening Brief of Appellant, at 51-52.

Mr. Jeffers emphasized that he was not
inviting the court to express a
"subjective opinion’" about which cases
are and are not “especially heinous or
depraved" but rather to determine whether

Arizona’s interpretation of the

- 19 -

circumstance "gives [a] ‘principled way
to distinguish this case, in which the
death penalty was imposed, from the many
in which it was not.’ Godfrey [v.
Georgia], 446 U.S. at 432." Appellant’s
Reply Brief, at 29.

Because the Ninth Circuit had earlier
ruled that the "especially heinous" cir-
cumstance is neither void on its face
(inasmuch as "‘the Arizona Supreme Court
need not construe the statute open-
endedly’") nor void as applied in cases
in which "cruelty" is found (on the
ground that the victim "suffered
greatly” before dying), the Court of
Appeals could not accept Mr. Jeffers’
argument "that the statute is ~ id on its
face." Jeffers vy. Ricketts, 832 F.2d
476, 482-86 (9th Cir. 1987) (quoting
Chaney vy. Lewis, 801 F.2d at 1191, 1193,
1195 (9th Cir. 1986), cert. denied, 481

- 20 -

U.S. 1023 (1987)). It noted, however,
that "‘[{hjeinous’ and ‘depraved’ are
inherently more difficult terms to
define than is ‘cruel,’" and it sustained
Mr. Jeffers’ “as applied" attack on the
"heinous ... or depraved" part of the
circumstance. 832 F.2d at 482-83.
Comparing the definition of those terms
that was applied in Mr. Jeffers’ and in
other Arizona cases, the court concluded
that the "relish" and “gratuitous
violence" factors to which the Arizona
Supreme Court had referred in affirming
his death sentence were so highly
"subjective" and so lacking in "meaning-
ful sense" that they provided no *\prin-
cipled way to distinguish this case, in
which the death penalty was imposed from
the many cases in which it was not.’"

832 F.2d at 484-85 (quoting Godfrey v.
Georgia, 446 U.S. at 433).

.

- 21-

Judge Wilson dissented. He found that
Arizona’s “statutory definition" of the
"heinous ... or depraved" circumstance
was constitutionally sufficient and that
a "‘rational factfinder’" could determine
that Mr. Jeffers’ case fell within that
definition. 832 F.2d at 487-88 (Wilson,
J., dissenting) (quoting Jackson v.
Virginia, 443 U.S. 307, 313 (1979)).

The State thereupon filed a Petition
for Rehearing and Rehearing En Banc, for
the first time raising a "question
regarding the proper standard for
reviewing state court findings of
aggravating circumstances." Id. at 2.
The panel deferred ruling on the State's
request “pending further decision of this
court, sitting en banc in Adamson v.

Ricketts." Mar. 30, 1988 Order, at 1.

On December 22, 1988, the en banc court
in Adamgon concluded that the

- 22 -

constitutional defect that the Jeffers
majority had found in Arizona’s
application of the “especially heinous
... or depraved" component in Mr.
Jeffers’ case pervaded the Arizona
courts’ construction of that component in
Arizona death cases as a whole. Adamson
v. Ricketts, 865 F.2d 1011, 1029-39 (9th

Cir. 1988) (en banc). The court

discerned three problems with Arizona’s

construction:

First, a broad range of definitions
ha({s] been provided for the terms
‘heinous’ ... and ‘depraved,’ each of
which tends to employ terms or phrases
as prone to subjectivity and ambiguity
as those they were meant to define.
Second, the Arizona courts have not
restricted the creation of new defini-
tions and factors that could con-
stitute an (F)(6) finding. Third,
even the most concrete of those
definitions have been inconsistently

applied.

Adamson v. Ricketts, 865 F.2d at 1031.
Following announcement of Adamson, the

Jeffers’ panel denied the State’s

- 23 -

rehearing petition. Because "(t]he full
court has been advised of the suggestion
for an en banc rehearing, and no judge of
the court has requested a vote on the
suggestion," the court also denied

rehearing en banc. Apr. 14, 1989 Order,
at l.

SUMMARY OF ARGUMENT

The Court’s Eighth Amendment decisions
dictate the outcome of this case. Since
Furman v. Georgia, 408 U.S. 238 (1972),
the Court has insisted that narrowing
capital-sentencing discretion "is a
fundamental constitutional requirement,"
Maynard v. Cartwright, 108 S. Ct. 1853,
1858 (1988), that in States like Arizona,
which use aggravating circumstances to
serve the narrowing function, mandates
that each circumstance "provide a

*‘"meaningful basis for distinguishing the

- 24 -

few cases in which [the death penalty) is
imposed from the many cases in which it
is not."’" Godfrey v. Georgia, 446 U.S.
420, 427 (1980) (citations omitted).
Petitioner argues that a State (as did
Arizona here) may rely on an undelimited
determination that a killing is
“especially heinous ... OF depraved" to
serve that constitutional narrowing
requirement, and that the federal courts
must confine their review of an
“especially heinous ... OF depraved"
determination to a "rational factfinder"
analysis. The effect of Arizona’s
arguments is to overrule Maynard v.
Cartwright and Godfrey v. Georgia. For
“an ordinary person could honestly
believe that every justified, inten-
tional taking of human life is
‘especially heinous,’" Maynard v.
Cartwright, 108 S. Ct. at 1859, hence a

- 25 =-

“rational factfinder" test necessarily
would approve every application of the
"especially heinous" and cognate
circumstances, including the applications
the Court disapproved in Godfrey and
Maynard. The law of the Eighth Amendment
is otherwise.

The Constitution requires, first, that
aggravating circumstances provide a
“principled means ... to distinguish
those murders [that receive[] the (death)
penalty from those that d[o} not."
Maynard v. Cartwright, 108 S. ct. at
1858. On their faces, the words
"especially heinous ... or depraved"
provide no such narrowing principle.

Nor, as the Court of Appeals in Adamson
v. Ricketts, 865 F.2d 1011 (9th Cir.
1988) (@n banc), concluded, following a
comprehensive review of Arizona cases, is
that defect cured by Arizona’s

- 26 -

construction of the words, which
authorizes sentencers to rely upon a
constantly expanding pastiche of
synonyms and factors, none of which, the
Arizona Supreme Court has ruled, is
either sufficient to require or necessary
to support an “especially heinous ... or
depraved" finding. As in Maynard, the
construction of the circumstance runs
afoul of the Constitution, because the
Arizona courts, although considering
numerous factors "to be relevant ...
(have) ‘refused to hold that any one of
those factors must be present for a
murder to satisfy [the] aggravating
circumstance.’" Maynard v. Cartwright,
108 S. Ct. at 1857 (emphasis in original)
(citation omitted).
The Eighth Amendment requires, second,
that the state courts “have applied in
this case a constitutional construction"

- 27 =

of the "especially heinous ... or
depraved" circumstance. Godfrey v.
Georgia, 446 U.S. 420, 432 (1980). In
order to justify Mr. Jeffers’ death
sentence on the basis of that
circumstance, the Arizona courts simply
dressed up the mens and actus rea
accompanying all unjustified,
premeditated first degree murders in the
terms "relish" and "gratuitous violence."
Because those factors, and the elements
of murder they adorn, "cannot be said to
+++ reflect[{] a consciousness materially
more ‘depraved’" than that characterizing
any first degree murder so as to provide
a “principled way to distinguish this
case, in which the death penalty was
imposed, from the many cases in which it
was not," Godfrey v. Georgia, 446 U.S. at
433, Mr. Jeffers’ death sentence runs
afoul of the rule of Godfrey.

The State’s efforts to distract the
Court from the dictates of Maynard and
Godfrey with a spurious “standard of
review" argument are unavailing. First,
the State unavoidably concedes that the
standard of review applied below
properly applies to the Maynard-Adamson
ground of relief, then tries to divert
the Court from considering that ground
on the mistaken bases that the Court of

Appeals did not rely on it and that this

Court accordingly cannot address it. But

see Smith v. Phillips, 455 U.S. 209,
215, n.6 (1982). Second, Arizona

conflates the "rational factfinder"
standard of review that applies to a
state court’s finding under the
"especially heinous ... and depraved"
circumstance, insofar as it is a matter
of state law, with the distinct standard
of review that applies when the

- 29 -

circumstance is used by the State to
satisfy the "constitutionally necessary
narrowing function," Pulley v. Harris,
465 U.S. 37, 50 (1984). Because the
latter issue is a federal constitu-
tional issue requiring independent
federal judicial consideration, and
because Arizona avoids that issue only by
disregarding the holdings of Godfrey and
Maynard that the words "especially
heinous ... or depraved," standing alone,
are not constitutionally sufficient,
respect for reason and precedent require

rejection of the State’s argument.
ARGUMENT

I. INTRODUCTION
Settled Eighth Amendment principles
resolve this case. "Since Furman[ v.
Georgia, 408 U.S. 238 (1972)}, [the

Court’s) cases have insisted that the

- 30 -

channeling and limiting of the senten-

cer’s discretion in imposing the death

penalty is a fundamental constitutional
requirement for sufficiently minimizing
the risk of wholly arbitrary and
capricious action." Maynard v.

Cartwright, 108 S. Ct. 1853, 1858
(1988). In States like Arizona that

rely on aggravating circumstances to
accomplish this "constitutionally
necessary narrowing function," Pulley v.-
Harris, 465 U.S. 37, 50 (1984), those
circumstances, "must ‘genuinely narrow
the class of persons eligible for the
death penalty and must reasonably justify
the imposition of a more severe sentence
on the defendant compared to others found
guilty of murder.’" Lowenfield v.
Phelps, 108 S. Ct. at 554 (quoting Zant

- 31-

vy. Stephens, 462 U.S. 862, 877 (1983)).9
As Justice White originally described the
function of an aggravating circumstance:
"the types of murders for which the death
penalty may be imposed become more
narrowly defined and are limited to those
which are particularly serious or for

which the death penalty is peculiarly
appropriate." Gregg v. Georgia, 428 U.S.

*Tracking the Georgia model, Arizona in the wake
of Furman chose not to narrow the scope of its
first-degree murder provision, which encompasses
a Sroad category of premeditated and felony
homicides, and instead "act([ed] ... to narrow the
class of murders subject to capital punishment by
specifying [seven] statutory aggravating
circumstances, one of which must be found .._ to
exist beyond a reasonable doubt" at the senten-
cing phase "before a death sentence can ever be
imposed.” » 428 U.S. 153, 196-97
(1976) (opinion of Stewart, Powell and Stevens,
JJ.). See Ariz. Rev. Stat. §§ 13-703(E) and (F).:
,» 467 U.S. 203, 210 (1984). Mr.
Jeffers’ death sentence rests exclusively on
the "heinous ... or depraved” finding. If “that
- aggravating circumstance [(is] struck down, no
valid statutory aggravating circumstance [would]
remain(]." , 463 U.S. 939, 969
n.16 (1983) (Stevens, J., concurring) .

- 32 -

at 222 (White, J., concurring) .}°
A State’s reliance on "statutory
aggravating circumstances [to] play

[this] constitutionally necessary

function" entails

the fundamental requirement that each
statutory aggravating circumstance must
satisfy a constitutional standard
derived from the principles of Furman
itself. For a system "could have stan-
dards so vague that they would fail
adequately to channel ... sentencing
decision patterns ... with the result

l0accord, e.g... Lowenfield v. Phelps, 108 S. Ct.
at 554; McCleskey v. Kemp, 481 U.S. 279, 305
(1987); Barclay v. Florida, 463 ¥.S. 939, 960

(1983) (Stevens, J., concurring). What some-
times is denominated here simply as the
"narrowing function” is actually two require-
ments: The circumstance must "circumscribe the
class of persons eligible for the death penalty,
, 462 U.S. at 878, so that it
encompasses something less than “every unjus-
tified, intentional taking of life," Maynard v.
Cartwright, 108 S. Ct. at 1859; and the
circumstance must achieve that winnowing by means
of some “objective, evenhanded and substantively
rational" principle, “rather than [by means of]

emotion’" or discrimination, Zant v.

‘caprice ...
Stephens, 462 U.S. at 879; Godfrey v, Georgia,
446 U.S. at 433 (quoting Gardner v. Florida, 430

U.S. 349, 350 (1978) (plurality opinion)). See
| 479 U.S. 538, 544 (1987)

(O'Connor, J., concurring).

- 33°

that a pattern of arbitr

a and
on. tse ry pone ar a like that found
=e utional in Furman could

Zant v. Stephens
(quoting Gregg v. Georgia, 428 U.S. 153,

195 n.46 (1976) (opinion of Stewart,
Powell and Stevens, JJ.)). Each
aggravating circumstance "must, in short,
provide a ‘"meaningful basis for distin-
guishing the few cases in which {the
penalty) is imposed from the many cases
in which it is not."’" Godfrey v.
Georgia, 446 U.S. at 427 (quoting Gregg
Vv. Georgia, 428 U.S. at 188 (opinion of
Stewart, Powell and Stevens, JJ.)
(quoting Furman v. Georgia, 408 U.S. at
313 (White, J., concurring) )).

As did the dissenting judge below,
Arizona argues here that a State may rely
on an undelimited determination that a

killing is “especially heinous ... or

depraved" to serve the constitutionally
necessary narrowing function, and that
then the federal courts must restrict
their review of the "especially heinous
... or depraved" determination to the
rational factfinder" standésrd of Jackson
v. Virginia, 443 U.S. 307, 313 (1979).
See 832 F.2d at 488 (Wilson, J.,
dissenting); Petitioner’s Brief, at 11-
13. We will detail subsequently the
specific errors in these arguments; for

now, we note only that their joint effect
is to overrule Maynard v. Cartwright and
Godfrey v. Georgia. For, as those cases

recognize, “an ordinary person could
honestly believe that every unjustified,
intentional taking of life is ‘especially
heinous,’" Maynard v. Cartwright, 108 S.
Ct. at 1858, 1859; see Godfrey v.
Georgia, 446 U.S. at 428-29 ("A person of

ordinary sensibility could fairly

- 33 -

characterize every murder as ‘out-
rageously or wantonly vile, horrible and
inhuman’ ") ; Gregg v. Georgia, 428 U.S. at
201 (opinion of Stewart, Powell and
Stevens, JJ.) ("It is, of course,
arguable that any murder involves

depravity of mind"); and accordingly

u Jackson v. Virginia’s
nder ‘s “rational

factfinder" test, a state-court
application of the “especially heinous
-++ OF depraved" circumstance could never
be found federally unconstitutional.

The law of the Eighth Amendment is
otherwise. To satisfy the Eighth
Amendment, there must be a "* "meaningful
basis for distinguishing the few cases in
which [the death penalty) is imposed from

the many cases in which it is not."’"

Godfrey v. Georgia, 446 U.S. at 427

(quoting Gregg v. Georgia, 428 U.S. at
188 (opinion of Stewart, Powell and

= 36 -

Stevens, JJ.) (quoting Furman v.
Georgia, 408 U.S. at 313 (White, J.,

concurring) )).

The application of this command to a
particular case requires a federal court
to answer two questions relating to a
State’s use of the “especially heinous

. or depraved" circumstance. First,
does the construction of the circumstance
that the state courts employ in culling
death from life cases provide a "prin-
cipled means ... to distinguish those

that receive[{] the death penalty from

those that d[{o] not?" Maynard v.

Cartwright, 108 Ss. ct. at 1858.11
Second, if so, “whether in light of the

facts and circumstances of the murder}
that [the defendant] was convicted of

laccord Adamson v. Ricketts, 865 F.2d 1011,
1029-30 (9th Cir. 1988) (en banc);

Cartwright v.
Maynard, 822 F.2d 1477, 1485 (10th Cir. 1987) (en
banc), aff'd, 108 S. Ct. 1853 (1988).

- 37 «

committing, the [state courts] can be
said to have applied in this case a
constitutional construction ... ?"
Godfrey v. Georgia, 446 U.S. at 432.}2
We show in Parts in II(A) and (B) below
that Maynard and Godfrey, respectively,
invalidate Mr. Jeffers’ death sentence
under these analyses. In Part III we
deal with the State’s attempt to obscure
these conclusions by an incomplete and

inapposite “standard of review" analysis.

12accord Barclay v. Florida, 463 U.S. 939, 948
n.5 (1983) (plurality opinion); Newlon v.
Armontrout, 885 F.2d 1328, 1333-35 (8th Cir.
1989); Proffitt vy. Wainwright, 685 F.2d 1227,
1262-65 (llth Cir. 1982).

- 38 -

AND GODFREY DICTATE THE
” OURT OF APPEALS’ CONCLUSION THAT

THE ARIZONA "ESPECIALLY HEINOUS

In Maynard v. Cartwright, the Court

upheld a ruling of the United Stat
Court of Appeals for the Tenth Circuit
"that the words ‘heinous,’ ‘atrocious, ’
and ‘cruel’" in Oklahoma’s capital-
sentencing statute "d[{o) not on their
face offer sufficient guidance to the
[sentencer] to escape the strictures of
[the] judgment in Furman" and “that the
Oklahoma [{courts’] construction of the
aggravating circumstance was ‘unconstitu-
tionally vague:’*

(The Tenth Circuit’s] reading of the

state) cases was that while the
epee I court had considered the

ae

- 39 -

attitude of the killer, the manner of
the killing, and the suffering of the
victim to be relevant and sufficient to
support the aggravating circumstance,
that court had "refused to hold that
any one of those factors gust be
present for a murder to satisfy this
aggravating circumstance." Rather, the
Oklahoma court simply had reviewed all
of the circumstances of the murder and
decided whether the facts made out the
aggravating circumstance.

Maynard v. Cartwright, 108 S. Ct. at 1857

(quoting Cartwright v. Maynard, 822 F.2d
1477, 1483, 1492 (10th Cir. 1987) (en

banc) (emphasis in original)). Because
the Tenth Circuit had “with some care,
reviewed the evolution in the inter-
pretation of the ‘especially heinous,
atrocious, or cruel’ aggravating
circumstance by the Oklahoma Court of
Criminal Appeals," and because this Court
“normally defer[(s} to Courts of Appeals
in their interpretation of state law,"
the Court saw "no reason not to accept

the Court of Appeals’ statements about

- 40 -

state law in this case." Maynard v.
Cartwright, 108 S. Ct. at 1857. Testing
this body of state law under Godfrey and
Furman, the Court agreed with the Tenth
Circuit that it was deficient.

The present case is indistinguishable
from Maynard. In Adamson v. Ricketts,
865 F.2d 1011 (9th Cir. 1988) --
following which the panel below denied
the State’s rehearing petition in Mr.
Jeffers’ case -- the en banc Court of
Appeals for the Ninth Circuit, without
dissent on this point,+*? concluded after
a comprehensive anaiysis of all the
Arizona cases that Arizona’s construction
of the words "heinous" and "depraved"
does not satisfy Furman’s limiting and

l3pour members of the en banc court dissented P
from the majority's similar conclusion in —.
to the Arizona courts’ application of the “crue

omponen F)(6) aggravating circumstance.
See pommetoeingy Ain 865 F.2d at 1055-58

(Brunetti, J., concurring and dissenting) .

- 41 =

channeling requirement and has produced
unconstitutionally random and inconsis-
tent results. Jd. at 1031-38. Like the
en.bane Tenth Circuit in Cartwright, the
en banc court in Adamson found that
words as vague as “especially heinous ...
or depraved" are not constitutionally
salvaged by a definitional strategy that
enumerates numerous factors which May be
relied upon, but does not "state[] what
specific factors are necessary" or
“include any instructions to limit future
review to the enumerated factors." Id.
at 1033.

Given the nearly point-for-point
identity of Oklahoma’s pre-Cartwright
construction of that State’s "especially
heinous" aggravating circumstance -- as
described in the Tenth Circuit’s decision
in Cartwright -- and Arizona’s con-
struction of its analogous provision --

- 43 <-

as described in painstaking detail in
Adamson -- the Court’s affirmance in the
former case dictates a like result

here. 14

l4arizona contends that the court below did not
premise its decision on the Maynard-Adamson
ground for relief and that the ground is not
before this Court because Mr. Jeffers, although
he won all the relief that he sought below with
regard to the “especially heinous ... or
depraved” circumstance, did not cross-petition
for certiorari. See Petitioner’s Brief, at 7 &
n.2. But see R. Stern, E. Gressman & S. Shapiro,
Supreme Court Practice 382 (6th ed. 1986)
(citing decisions) (certiorari does not lie to
review decisions in which the petitioning party
prevailed). The State is in error.

First, Arizona is mistaken about the nature of
the attack on the “especially heinous”
circumstance that the opinion below rejected.
Contrary to the State’s assertion in its question
presented, the court below nowhere "determined
that a state court hag adopted a constitutional -
ly narrow definition of [the “especially
heinous"] aggravating circumstance,” but only
that a state court could do so were it so minded.
Thus, just as this Court did in Gregg v. Georgia,
428 U.S. at 201-02, and Proffitt v. Florida. 428
U.S. 242, 255-56 (1976) -- without in any way
foreclosing the later decisions in Godfrey and

-- the panel below simply ruled that it
would not strike down the statute on its face
without first examining whether the Arizona
courts’ application of the statute cured its
facial infirmities. §e¢ 832 F.24 at 482-83. The
court below accordingly foreclosed no part of

- 43 -

As Maynard observes, words like
"heinous" and "depraved" "d[o}] not on
their face offer sufficient guidance to
the jury to escape the strictures of our
judgment in Furman v. Georgia." Maynard
vy. Cartwright, 108 S. Ct. at 1859. See
also Newlon v. Armontrout, 885 F.2d

Mr. Jeffers’ challenge to the Arizona courts’
application of the circumstance -- to the
contrary, the court granted him relief on that
challenge -- and no part of that challenge is
foreclosed here, even under the State’s curious
theory that this Court may not consider arguments
that the court below rejected.

Second, by holding the State's rehearing and
rehearing en banc requests pending its decision
in Adamson, and then denying them, the Court of
Appeals did consider the Adamson analysis as the
basis for its final judgment granting Mr. Jeffers
relief.

Finally, regardless of the ground on which the
Court of Appeals ruled, "[rjespondent may, of
course, defend the judgment below on any ground
which the law and the record permit, provided the
asserted ground would not expand the relief which
has been granted." Smith v. Phillips, 455 U.s.

209, 215 n.6 (1982). Accord, e.g., Chevron

, 467
U.S. 837, 842 n.7 (1985); Washington v, Yakima
Indian Nation, 439 U.S. 463, 476 n.20 (1978):

, 434 U.S.
159, 166 n.8 (1977); R. Stern, E. Gressman & S.

Shapiro, gupra at 382.

1328, 1334 (8th Cir. 1989) ("Absent a
clear limiting directive ... words [such
as] ‘depravity of mind’ ... are not
capable of objective determination").

Construction is accordingly necessary.
And in Arizona a certain manner of
construction has been tried. But that
construction, based on the oft-emphasized
disjunctive strategy of the "especially
heinous ... or depraved" clause itself,
is "so broad that it ... vitiate([s) the
role of the aggravating circumstance in
guiding sentencing ... discretion.”
McCleskey v. Kemp, 481 U.S. 279, 305
(1987) .25

As did the Oklahoma Court of Criminal

15 ture of the
Emphasizing the disjunctive na
statute are, e.g., State v. Beaty, 158 Ariz. 232,
242, 762 P.2d 519, 529 (1988); State v. Wallace,
151 Ariz. 362, 366, 728 P.2d 232, 236-37 (1986);
State v. Libberton, 141 Ariz. 132, 139, 685 P.2d
1284, 1291 (1984); State vy. Richmond, 136 Ariz.
312, 319, 666 P.2d 57, 64 (1983).

- 45 -

Appeals’ decisions under review in

Maynard, (see Cartwright v. Maynard, 822

F.2d at 1487), the Arizona Supreme
Court’s decisions began the process of
interpreting the "especially heinous"

_ circumstance by quoting the Florida gloss
on an “especially heinous" aggravating

circumstance that this Court had found

sufficient in Proffitt v. Florida, 428
U.S. 242, 256 (1976). As recited by the
Arizona Supreme Court, that gloss

provides that
" ..++. heinous means extremely wicked
or shockingly evil; ... [and] that
atrocious means outrageously wicked and
vile .... What is intended to be
included are those capital crimes
where the actual commission of the
capital felony was accompanied by such
additional acts as to set the crime
apart from the norm of capital felonies
-- the conscienceless or pitiless crime
which is unnecessarily torturous to the
victin." , 283 So.2d 1,
9 (Fla. 1973).

State v. Watson, 120 Ariz. 441, 447, 586
P.2d 1253, 1259 (1978). Tracking the

- 46 -

Florida Supreme Court’s quotation of
Webster’s definitions of "heinous" and
"atrocious," the Arizona Supreme Court
next -- in what remains its most
frequently cited construction of the
terms!® -- recited Webster’s definitions

of “heinous” and "depraved:"

The words Panes monn soe sens
depraved’ have meanings at are
9 person of average intelligence and
understanding. Webster’s Third New
International Dictionary defines them

as follows:

heinous: hatefully or shockingly
evil: grossly bad.

depraved: marked by debasement,
corruption, perversion or
deterioration.

State v. Knapp, 114 Ariz. 531, 543, 562
P.2d 704, 716 (1977).
As eventually came to be the case in

Oklahoma, however, Arizona’s interpreta~

l6see Appendix B, Tables B-1 (col. 5) and B-3.

- 47 -

tion did not follow the Florida approach
of reading all parts of its definition
coniunctively and in pari materia with
the phrase “unnecessarily torturous to
the victim."17 Neither torture nor any
other concrete set of facts was required
by the case law to support a finding of
heinousness or depravity. Rather,
Arizona sentencers frequently have been
upheld in finding the "especially heinous
+++ Or depraved" circumstance to be
present, notwithstanding the absence of
any pain or torture to the victim, if

they deem an offense to be, for example,

See Proffitt v. Florida, 428 U.S. at 255
(discussing State v. Dixon, 283 So.2d at 9)

(Florida construction approved because of its
objective “unnecessarily torturous" requirement) :
Cartwright vy. Maynard, 822 F.2d at 1487. See
also , 446 U.S. at 431 (Geor-
gia’s definition, the abandonment of which in
that case led to the Court’s reversal, required
"that the word, ‘torture,’ must be constructed in
pari materia with ‘aggravated battery’ so as to
require evidence of serious physical abuse of the
victim before death").

- 48 -

(1) “marked by debasement,"1% "hatefully"

or "shockingly evil,"19 or "grossly

mes beeen ©

bad;"29 (2) "conscienceless or

pitiless;"21 (3) "unnecessary;"*? (4)

18_ g., State v. Fulminante, 778 P.2d 602, 610
(Ariz. 1988); State v. Vickers, 129 Ariz. 506,
515, 633 P.2d 315, 324 (1981); State v. Ceja, 126
Ariz. 35, 40, 612 P.2d 491, 496 (1980). See
also, e.g., , 158 Ariz. 232, 242,
762 P.2d 519, 529 (1988) ("marked by
corruption"); State v. Madsen, 125 Ariz. 346,
352, 609 P.2d 1046, 1052 (1980) ("marked by
perversion").

19¢ g., State v. Fulminante, 778 P.2d 602, 620,
621 (1988): State v, Beaty, 158 Ariz. 232, 242,
762 P.2d 519, 525 (1988); State v. Carriger, 143
Ariz. 142, 150, 692 P.2d 991, 1009 (1984); State
_ 135 Ariz. 63, 69, 659 P.2d 22, 28
(1983); State v, Ricky Tison, 129 Ariz. 526,
543, 633 P.2d 335, 352 (1981); State v. Ceja, 126
Ariz. 35, 39-40, 612 P.2d 491, 496 (1980).

20state v, James, 141 P.2d 141, 147, 685 P.2d
1293, 1299 (1984).

2le g., State v. B. Smith, 146 Ariz. 491, 505,

707 P.2d 289, 301 (1985); State v. Lujan, 124
Ariz. 365, 392, 604 P.2d 629, 636 (1979).

22e g., State v. Martinez-Villareal, 145 Ariz.

441, 461, 702 P.2d 670, 690 (1985). See e.g...
, 141 Ariz. 492, 501, 687 P.2d

1247, 1256 (1984) ("senseless").

"especially,"*? or “particularly"24

"heinous ... or depraved" or "more
heinous ... or depraved than usual;"25 or
(5) -- in the Arizona Supreme Court’s
second most frequently cited formulation
-- if the courts conclude that the crime
is characterized by any "additional"2®
acts or circumstances beyond the bare
elements of first-degree murder that

place the offense “above the norm of

235 g., State v. Johnson, 147 Ariz. 395, 401, 710
P.2d 1050, 1056 (1985); , 124 Ariz.
365, 373, 604 P.2d 629, 637 (1979).

24 , 160 Ariz. 424, 428. 773 P.24
483, 487 (1989).
25 , 166 Ariz. 491, 503, 707 P.24
289, 301 (1985).

265 g., State v. Correll, 148 Ariz. 468, 481. 715
P.2d 721, 734 (1986); State v. B. Smith, 146
Ariz. 491, 503, 707 P.2d 289, 301 (1985): State

v.Cejig, 115 Ariz. 413, 416, 565 P.2d4 1274, 1277
(1977).

- 50 =-

first degree ... murders."?’ Yet,

27state v. Beaty, 158 P.2d 232, 247, 762 P.2d
519, 534 (1988); State v. Correll], 148 Ariz. 468,
485, 715 P.2d 721, 738 (1986). Accord, e.g...

, 137 Ariz. 278, 295, 670 P.2d
383, 400 (1983) ("apart from the usual or norm");
State v. Richmond, 136 Ariz. 312, 314, 666 P.2d
57, 64 (1983) ("*‘apart from the normal first
degree murder’"); State v, Jeffers, 135 Ariz. at
430, 661 °.2d at 1131 ("cases which stand apart
from the norm"); State v. Ortiz, 131 Ariz. 195,
210, 639 P.2d 1020, 1035 (1982) ("more heinous
and depraved than the norm of first degree mur-
ders"); other decisions collected in Appendix B,
Table B-1 (col. 6). Compare Eddings v. State,
616 P.2d 1159, 1167 (Okla. Cr. App. 1980), rev'd
on other grounds, 455 U.S. 104 (1982) (quoted in
Cartwright v. Maynard, 822 F.2d at 1487) ("the
Legislature . . . intended to reach killings
which are ‘out of the ordinary’"). Arizona
decisions, in addition to Jeffers itself, in
which the court disjoined torture, or “cruelty,”
from the rest of the (F)(6) provision and found
the (F)(6) factor present notwithstanding a
finding that the victim did not suffer physically
or mentally include, e.g., the Wallace, Richmond,
Woratzeck, Zaragoza, Ortiz, and Ceja cases cited
supra notes 18, 19, 24, 26 and above. Compare
Godfrey v. Georgia, 446 U.S. at 454 (White, J.,
dissenting) (noting that the Georgia Supreme
Court "expressly rejected an analysis that would
apply the ["outrageously vile” and “torture and
aggtavated battery” portions of Georgia's)
provision disjunctively, ... an analysis that, if
adopted, would arguably be assailable on con-
stitutional grounds"). Appendix B, Table 5-1
(col 4) illustrates the catch-all nature of the
"heinous ... or depraved" components of the
(F)(6) aggravating circumstance once those

although the Arizona Supreme Court from
time to time relies on each of these
concepts as the basis for a "heinous ...
or depraved" finding and a death
sentence, it has never ruled that any one
of them defines a condition or action

that must be present to justify an

“especially heinous ... or depraved"

finding.
Indeed, State v. Gretzler, 135 Ariz.

42, 659 P.2d 1 (1983), rules precisely to
the contrary. There, the Arizona Supreme

Court “summar(ized) ... the law which

components are unlinked from cruelt
For although no Arizona trial cee ene my
Arizona high court only once, has found “cruelty”
— when “heinousness" and/or “depravity” was
pot nang those courts frequently iase death
oe = “heinous and/or depraved" findings
> od ty” is not present. It is manifest.

refore, thee the “mental or physicel" pain
— of “cruel” in Arizona lies at the “core”
stommeeame, tes thes artomn ne

, z P

of the "heinous" and — eon,
encompasses much else besides.

- §2 -

has been developing in th({is) area” and
formalized the multi-factor approach
described above. 135 Ariz. at 51, 659
P.2d at 9. The Gretzler court reiterated
Webster’s "definitions of the words
heinous ... or depraved," emphasized the
disjunctive nature of (F) (6)’s three
components, acknowledged that numerous
"factors" previously had led the Court
"to a finding of heinousness or
depravity” in the past, and listed five
such factors -- the “apparent relishing"
of murder, “gratuitous violence,"
"needless mutilation of the victim," “the
senseléssness of the crime," and the
“helplessness of the victim." 135 Ariz.
at 52-53, 659 P.2d at 10-11. But the
court made plain that no one of the five
factors nor any other factor was
sufficient in itself to require a
heinousness or depravity finding or

necessary in itself to support one.

Those factors, the court insisted, "in
isolation, need not always lead to a
holding that the crime is heinous or
depraved;" and, on the other hand, such a
finding may be made in the absence of any
of the factors, as long as other
"circumstances guch as the specific
factors discussed above [are present and
serve to] separate the crime from the
‘norm’ of first degree murders ...." 135
Ariz. at 53, 659 P.2d at 12 (emphasis
added).

If any single "standard" emerges from
Gretzler, it is this last-mentioned
formula with which the court both began
and ended its discussion. As the court
concluded, reprising its many prior and
foreshadowing its many subsequent
repetitions of the formulation: "‘First
degree murder is by its nature willful,

cruel and repugnant.’" Hence, to qualify
as “especially heinous ... or depraved,”
"the facts of th{e] case (must) set it
“apart from the norm of first degree
murders."’" Id. (quoting State v.
Steelman, 126 Ariz. 19, 26, 612 P.2da 475,

482 (1980) (quoting State vy, Brookover,
124 Ariz. 38, 41, 601 P.2d 1322, 1325

(1979))).
Or, as the formula subsequently has

been expressed:

All first degree murders are to some
extent heinous, cruel or depraved:
therefore, to warrant the imposition of
the death penalty, a murder must be
more heinous ... or depraved than

usual .... [T]o uphold this
aggravating circumstance, we must find
that defendant ——— ~++ in - oe
that not only was heinous, crue
depraved, but that was especially so. 28

28state vy. B. Smith, 146 Ariz. 491, 503, 707 P.2¢

985) (emphasis in original).
ae _ 160 Ariz. 626, 428, 773

e.g., State v. Wallace

P.2d4 983, 987 (1989) hy must be _
“particularly disturbing"); State vy. Vickers.
aan, 532, 546, 768 P.2d 1177, 1191 (1989); State
vy, Jeffers, 135 Ariz. at 430, 661 P.2d at 1131.

The constitutional defect in this
approach is the same one that led to the

result in Maynard. For Arizona’s, like
Oklahoma’s, reliance on the "contention
that the addition ef the word

‘especially’" -- or ‘abnormally’ or

‘unusually’ --

somehow guides the [sentencer’s}
discretion, even if the term "heinous"
does not, is untenable. To say that
something is “especially heinous”
merely suggests that the ... murder is
more than just “heinous,” whatever that
means, and an ordinary person could
honestly believe that every

The continued currency of the “above the norm”
and allied formulations is revealed by the
frequency with which the Arizona Supreme Court in
post -Gretzler decisions has affirmed “heinous or
depraved" findings on this basis without citing
Gretzler or even any of its factors. E.g., State
vy. Williams, 1987 W.L. 878 (Ariz. Oct. 8, 1987).
State vy. Moorman, 154 Ariz. 578, 587, 744 P24
679, 688 (1987); State vy. Graham, 135 Ariz. 209.
212, 660 P.24 460, 463 (1983); State v.
Zaragoza. 135, Ariz. 63, 70, 659 P.24 22. 29
(1983). See also. e.g., State v. Poland, 144
Ariz. 388, 405, 698 P.2d 183, 200 (1985) (relying
on dictionary definitions but not Gretzler) See
generally Appendix 8, Tables 8-1 (cols. 5-7) and
B-3.

unjustified, intentional taking of
a life is “especially heinous."

Maynard v. Cartwright, 108 S. Ct. at
1859. Accord Proffitt v. Wainwright, 685

F.2d 1227, 1264-65 n.57 (11th Cir. 1982)
(*"heinousness" standard is unconsti-
tutional if it requires that the crime
"be in some respect worse than others on
average” but "“fail(s} to indicate in
what way the crime should be *‘worse’™).
The en banc Court of Appeals in Adamson
noted three characteristics of the
Arizona case law. Each is illustrated

briefly below.

been provided for the terms
oneiacus™ and ... “depraved,” each of
which tends to employ terms or phrases
as prone to subjectivity and ambiguity
as those were meant to define.

i

- 57 -

Adamson v. Ricketts, 865 F.2d at 1031.
Standing alone, there is nothing in

Arizona’s dictionary definitions -- for
example, “shockingly evil" or "marked by
corruption" -- or in the factors with
which Gretzler illustratively supple-
mented those definitions: for example,
“senselessness," “gratuitous violence,"
“relish,” and "vile state of mind at the
time of the murder"?9 -- that provides
“any inherent restraint on the arbitrary
and capricious infliction of the death
sentence. A person of ordinary
sensibility could fairly characterize

almost every murder as ‘outrageously ...

vile ....’" Godfrey v. Georgia, 446 U.S.
at 428-29. See Proffitt v. Wainwright,

685 F.2d at 1264-65 n.57. Likewise,

29 , State v. LaGrand, 153 Ariz. 21, 36.
734 P.2d 563, 579 (1987); State v. McCall, 139
Ariz. 147, 161, 677 P.24 920, 934 (1983).

- 58 -

every unjustified murder is by that fact
alone "gratuitous" and never "sensible;"
and no murderer who deliberated on the
deed long enough to establish
premeditation can ever be absolved of
having relished the premeditated act.°°
"Although oft-repeated" therefore, the
Arizona Supreme Court’s "list of
amorphous terms and [its] definitional
distinction({s}] have failed to benefit the
trier of fact in any meaningful way."
Adamson v. Ricketts, 865 F.2d at 1032.
“Vague terms do not suddenly become
clear when they are defined by reference

to other vague terms.’" Jd. at 1032
(quoting Cartwright v. Maynard, 822 F.2d

301m this last regard, recall Robert Franklin
Godfrey's remark upon being arrested for killing
his wife and mother-in-law: “I have been

thinking about it for eight years. ... I'd do it
again," Godfrey v. Georgis, 446 U.S. at 426, and

William Thomas Cartwright’s avowal “to ‘get even’

with the Riddles," Cartwright vy. Maynard, 822
F.2d at 1488.

at 1489). Nor do they "narrow the class
of persons eligible for the death

penalty.” Zant v. Stephens, 462 U.S. at
878.

Even were the synonyms and illustrative
factors definitionally sufficient
standing alone, these phrases do not
stand alone; and they often are stood in
for by an ever-expanding host of
alternative and supplemental synonyms and
factors. The Arizona Supreme Court
repeatedly has confirmed that, although
the factors listed in Gretzler "may lead
to a finding of heinous or depraved,"
State v. Wallace, 151 Ariz. 362, 367, 728
P.2d 232, 237-38 (1986) (emphasis added),
they as easily may not. In case after

case, they have not led to such a

- 60 -

finding.21 Moreover, the Arizona Supreme

3lin the following first-degree murder
decisions, among many others, “heinous and
depraved” findings were either reversed or not
made, although the Arizona Supreme Court
expressly found the highlighted Gretzler factor
present:
GRATUITOUS VIOLENCE. E£.¢..,

Ariz. 468, 469, 743 P.2d 1386, 1387 (1987)
(defendant killed victim with stab wound to neck,
then stabbed victim repeatedly in the back,
including one 15" gash; trial court found that
offense was not “heinous and depraved;" Mr.
Jeffers has lodged the unpublished sentencing
order in this case with the Court);
Smith, 138 Ariz. 79, 84-86, 673 P.2d 17, 22-24)
(1983) (defendant strangled rape victim, held her
down while codefendant stabbed her, then crushed
victim with rocks; "heinous and depraved" finding
reversed); State v, Richmond, 136 Ariz. 312, 315,
319, 666 P.2d 57, 60, 64 (1983) (defendant beat
robbery victim unconscious with fists, then
dropped “large rocks" on him, then drove a car
over the "helpless({]" victim's head and a second
time over his body, crushing both; “heinous and
depraved" finding reversed by majority of
concurring justices) ; State v. Blazak, 131 Ariz.
598, 600, 643 P.2d 694, 700 (1983) (defendant
shot bartender four times at close range during 4
robbery, then shot two nearby patrons, killing
one; “heinous and depraved" finding reversed) ;

, 125 Ariz. 201, 202, 608 P.2d
778, 779 (1980) (defendant shot victim four
times with an M-l carbine, “any one of which
[shots] could have been fatal in itself;"
"heinous and depraved" not found); State v.
Watson, 120 Ariz. at 447-48, 586 P.2d at 1259-60
(defendant shot victim four times, the fourth
while victim was lying on ground face down;

, 154

- 61 -

"heinous and depraved" findi
ng reversed).
generally decisions surveyed in Adamson v. =

Ricketts, 865 F.2d at 1038; Jeffers v. Ricketts
832 F.2d at 485. )

RELISHING THE KILLING: E.g., State v.
Rockwel], 161 Ariz. 5, 8 & n.2, 775 P.2d 1069
1072 & n.2, 1076 (1989) (after marching robbery
victim to filling station rest room at gunpoint
and making helpless victim kneel in front of the
toilet before being shot “execution-style,”
defendant "boasted" and “bragged” to friends
about the killing in order to "project{] a macho
image;" “heinous and depraved" not found by trial
court); State v. Graham, 135 Ariz. 209, 212, 660
P.2d 460, 463 (1983) ("to impress" his friends
defendant described how the robbery victim |
"‘squealed like a rabbit;’" "heinous and

depraved" finding reversed) [compare to Rockwell
= Sxehen: State v, Martinez-Villarea], 145

riz. 1, 450-51 & n.3, 702 P.2d 670, 679-80 &
n.3 (1985) ("heinous and depraved" finding
affirmed because, after killing the robbery
victim, defendant told a friend that the act
proved his “manliness” and “machismo:" statement
relied upon to uphold “heinous and depr-veu"
owes State v. R.L. Smith, 141 Ariz. 510,

11-12, 687 P.2d 1265, 1266-67 (1984) (defendant
“senseless([ly]" killed robbery victim who
“offered no resistance [and] ... backed away”
when defendant cocked trigger; afterward, "Smith
laughed and joked about the gurder:" “heinous and
depraved" finding reversed) (compare to R.L.

: State v. James, 141 Ariz. 141, 147
P.2d 1293, 1299 (1984) ("heinous and hommes”
finding affirmed because defendant laughed and
joked about robbery-murder afterwards)|; State v_
, 138 Ariz. 79, 85-86, 673 P.2d4 17, 23.

24 (1983) (facts also included in codefendant’s

case, State v. Lambright, 138 Ariz. 63, 66-67,
673 P.2d 1, 4-5 (1983)) (after admittedly raping
a kidnap victim “repeatedly,” strangling her,
holding her down while a codefendant stabbed her,
then crushing victim's head with rocks, defendant
"participate(d] in the macabre celebration of the
killing during which the group played the song
‘We Are the Champions;’* “heinous and depraved"
finding reversed); State v. Madsen, 125 Ariz.
346, 352-52, 609 P.2d 1046, 1052-53 (1980)

(after killing his wife and collecting the
insurance money, defendant told a friend envious
of his wealth, "It’s easy to get money, you just
blow someone away and collect the insurance;"
"heinous and depraved" finding reversed).

NEEDLESS MUTILATION: , -

138 Ariz. 370, 371-72, 674 P.2d 1368, 1369-70
(1983), and State v. Montes, 136 Ariz. 491, 492-
93, 498, 667 P.2d 191, 192-93, 198 (1983) (Cruz-
Mata, Montes and third defendant (Sapien) forced
victim, who had offered the three a ride, off the
road, robbed him, bound him, stabbed him 29
times, and cut off his genitals; “heinous and
depraved" not found in any of three cases;
sentencing orders and presentence reports in
three cases lodged with Court).

HELPLESSNESS: E.g., State v. B. Smith, 146,
Ariz. 491, 503-09, 707 P.2d 289, 301-02 (1985)
(robbery victim "helpless" when killed; “heinous
and depraved" finding reversed) ; State v. Poland,
144 Ariz. 388, 393, 698 P.2d 183, 188 (1985)
(unconscious victims sealed in canvas sacks
weighted with rocks and thrown into Lake Mead to
drown; “heinous and depraved" finding reversed) ;
State v. Brookover, 124 Ariz. at 39, 601 P.2d at
1323 (defendant shot robbery victim once; then
while victim was on floor asking for mercy,
defendant said “don’t worry, buddy, it'll be over

- 63 -

Court has insisted that there are
"(njumerous factors {that} can be
considered in making a finding of
depravity (which) include" the Gretzler
factors, but also include many other
factors bounded only by the requirement
that they be “such things as" the
Gretzler factors, or that they “in some
other way ... set [the defendant) apart
from the ‘norm’ of first degree
murderers," or that they likewise

soon,” and shot victim a second time: "hei
and depraved" finding reversed). / =
SENSELESSNESS OF THE KILLING. State v.
Johnson, 147 Ariz. 395, 397, 401, 710 P24 1050
1052, 1056 (1985) (defendant admitted he had no
reason to kill victim, who had put him and a
friend up in her home for two weeks, other than
that he felt like killing someone: “heinous and
a " finding reversed); State v. R.L. Smith
Supra ("“senselessness" found: “heinous and
yo ag wl finding reversed); State v. Richmond
aupra (same); State v. Lujan, 124 Ariz. 365, 3)
604 P.2d 629, 636 (1979) (same). ese dion

- 64 -

establish "additional aggravation.">?
As the en banc Court of Appeals found,

32state v, Villafuerte, 142 Ariz. 323, 331, 690
P.24 42, 50 (1984); State v. Summerlin. .1% Ariz.
426, 436, 675 P.2d 686, 696 (1984);
Johnson, 147 Ariz. 395, 401, 710 P.2d 1050, 1056
(1985); State v. B. Smith, 146 Ariz. 491, 503,
707 P.24 285, 301 (1985). Accord. e.g., State v.
Pulminante, 778 P.2d 602, 619, 620-21 (1988) (in
addition to dictionary definitions and Gretzler
factors, the court “has also” relied on other
factors, including a number listed here); State

, 168 Ariz. 468, 481, 715 P.2d 721, 734
(1986) ("In addition to the five factors
presented in Gretzler, we have also found that
depravity is indicated" by two additional factors
discussed here, including the factor that the
offense reveals “a total disregard for human
life"); State v. Gillies. 142 Ariz. 564, 570,
691 P.24 655, 661 (1984) ("The trial court found
two factors indicative of heinous and depraved:
1) the senselessness of the aurder (a Gretzler
factor) and 2) the savage sanner of death [not a
Gretzler factor]. We agree with both these
findings ... [and] believe elimination of wit-
nesses, as a motive for surder [not a Gretzler
factor], also illustrates heinousness and
depravity"); State v. James, 141 Ariz. 141, 147,
685 P.24 1293, 1299 (1984) (Gretzler factors are
"among others” considered) ; State v. McCall. 139
Ariz. 147, 161, 677 P.2d4 920, 934 (1983)
("(sleveral sorts of actions” support « "finding
of depraved or heinous"); State v. Gretzler, 135
Ariz. at 51, 659 P.2d4 at 10 (authorizing
consideration of *‘additional circumstances of
the nature enumerated (that) set the crime apart
from the usual or the norm’* (emphasis added;
citation omitted)).

without dissent, what counts in Arizona
is not the presence of any one of the
Gretzler factors, but rather that there
be “something” -- apparently anything --
“about the murder that sets it apart from
the norm." State v. Zaragoza, 135 Ariz.
63, 69, 659 P.2d 22, 28 (1983). Some
things will do as well. For often in
Arizona it is under "the totality of the
circumstances [that] the finding of
depravity ... (is) sustained." state v.

Villafuerte, 142 Ariz. 323, 331, 690 P.2a
42, 50 (1984).33

33the
al court, for example, has premised "heinous
depraved" findings on “the totality of the
circumstances of [the] killings,” State v. Ceja
126 Ariz. 35, 39, 612 P.24 491, 495 (1980). "the
entire nature of the attack,” |, —Roscoe
145 Ariz. 212, 226, 700 P.24 1312, 1326 (1985),
society's view of the surder as compared to
= murders,” State v. Ortiz, 131 Ariz. 195.
, 639 P.24 1020, 1031 (1982), “the facts of
thle) ease [that] set it ‘apart from the
norm(),’" State vy. Gretzler, 135 Ariz. at 53, 659
P.26 at 12, and any other group of
circumstances’* that the court finds *'so

shocking or repugnant that the murder stands

Under Gretzler’s open-ended authori-
zation to identify new factors as each
new case comes along and to apply the new
factors retroactively in that case, cf.
Teague v. Lane, 109 S. Ct. 1060, 1069-70,
1072-75 (1989) (plurality opinion), the
Arizona Supreme Court has expanded
Gretzler’s list of five to include, among
the other factors surveyed in Appendix B
that the defendant: eschewed a “less
violent" means of killing (to wit, a
pistol) that was “readily available,”

State v. Wallace, 151 Ariz. at 368, 728
p.24 at 238;24 lay in wait, id.;?> showed

out,’" State v. Gillies, 135 Ariz. 500, 515, 662
P.2d 1007, 1022 (1983) (citation omitted).

*“Compare , 446 U.S. at 433
n.16 ("it is constitutionally irrelevant that
the petitioner used a shotgun instead of a rifle

as the mgurder weapon, resulting in a gruesome
spectacle in his sother-in-law’s trailer").

ISput see State vy. Arnett, 119 Ariz. 38, 41-42,
579 P.2d 542, 545-46 (1978) (defendant “lay in
wait" for victim; “heinous and depraved"

———

- 67 -

no “compassion or remorse," State v.
James, 141 Ariz. 141, 147, 685 P.2d 1293,
1299 (1984);9© "could have accomplished
whatever criminal goals he desired
without killing” the victim, State v.
Zaragoza, 135 Ariz. at 69, 659 P.2d at
28; eliminated witnesses to an
accompanying felony, e.g., State v.
Correll], 148 Ariz. 468, 481, 715 P.2d
721, 734 (1986);37 killed someone who was

circumstance not found by trial court).

36
State v. Carriger, 143 Ariz. 142. 16?
692 P.2d 991, 1011 (1984) ("1f (defendant)
chooses not to ... admit his guilt, that is
irrelevant to a sentencing determination").

37
State vy. B.D. Smith,
86, 673 P.2d 17, 22-24 (1983) cme aor,
uncontradicted evidence before the judge
including Smith’s own statements, established
that the reason for the killing was to prevent
[ the vietia) from pressing charges of kidnapping
and rape;" “heinous and depraved" finding
gy State vy. Hensley, 142 Ariz. 598, 602.
= 1 P.24 698, 693, 695 (1984) (defendant
op = a ne persons present at robbery
etsasssser" “Setares and’ epeenst flemas =
+ depraved" finding

old, young, female, his mother, or had
displayed “generosity and concern” for
the defendant;?® acted "totally without
regard for human life" or “for the
fundamental principles upon which our

society is based," State v. Wallace, 160
Ariz. 424, 428, 773 P.2d 983, 987 (1989);

38scate v. Zaragoza, 135 Ariz. 63, 69-70, 659
P.2d4 22, 28-29 (1983) (elderly victim); State v.
Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326
(1984) (young victim); State v. Summerlin, 158
Ariz. 426, 436, 675 P.2d 686, 696 (1983) (female
victim, neither young nor old; “heinous” finding
affirmed because case otherwise resembled
Zaragoza, supra and Roscoe, supra); State v.
Moorman, 154 Ariz. 578, 587, 744 P.2d 679, 688
(1987) ("matricide” per ge “above the nore of
first-degree murder"); State vy. Fisher, 141 Ariz.
227, 252, 686 P.2d 750, 775 (1984) (victim showed
defendant compassion). But see ;
129 Ariz. 557, 573-74, 633 P.2d 366, 382-83
(1981) (victim 74 years old; “heinous and
depraved” not found by trial court); State vy.
Girdler, 138 Ariz. 482, 484, 675 P.24 1301, 1305,
(1983) (defendant burned young child to death;
"heinous and depraved" not found); State yv.
Johnson, 147 Ariz. 395, 397, 401, 710 P.2d 1050,
1052, 1056 (1985) (defendant, admittedly for no
reason other than that he felt like killing
someone, shot and killed a childhood friend who
had been providing hie with a place to stay for
weeks: “heinous and depraved" finding reversed) .

State v. Martinez-Villareal, 145 Ariz.

441, 451, 702 P.2d 670, 680 (1985); and
“violated the special parental relation-
ship,” State v. Fulminante, 778 P.2d 602,
621 (Ariz. 1989); and the Arizona Supreme
Court also has affirmed “heinous and
depraved" findings because the killing

was “cold-blooded,” State v. R.L. Smith
141 Ariz. 510, 512, 687 P.2d 1265, 1267

(1984) ;99 "savage," State v. Gillies, 142
Ariz. 564, 570, 691 P.2d 655, 661 (1984);

“ghastly,” State v. Knapp, 114 Ariz. at

39

State vy. B. Smith, 146 Ariz.
707 P24 289, 302 (1985) ("That defendanc's
actions may have been cold and deliberate
demonstrates not heinousness or depravity but
intent;" “heinous and depraved" finding
reversed); State v. Madsen, 125 Ariz. 246, 247
48, 252, 609 P.24 1046, 1047-48, 1052 (1980)
(aurder of wife with gun she had just helped his
site, thinking they were engaging in target
practice, followed by defendant's statement
nT yk me Aye collection of

was “cold-blooded; *

depraved" finding reversed) . oe on

- 70 -

543, 562 P.24 at 716;*° and "repugnant to
a civilized society," State vy. Beaty, 158
Ariz. 232, 243, 762 P.2d@ 519, 530 (1988)
(citation omitted). See Adamson v.
Ricketts, 865 F.2d at 1034-35 (citing
numerous exemplary cases) (the “pos-
sibilities appear endless").*! In short,
although the Arizona Supreme Court has
said that numerous factors “can support
this aggravating circumstance, ... the
court has refused to hold that any one of
those factors gust be present for a
murder to satisfy (the) ... circumstance.

. 136 ariz. 312, 323,
666 P.2¢ 57, 68 (1983) (Cameron, J., concurring,
in opinion joined by sajority of court) ( It is
true that [the eurder) ... was ghastly;
"heinous and depraved" finding reversed) .

“Saccord Rosen, The “Eapecially Heinous” =

N.C.L. Rev. 941, 981 (1986) (comprehensive review
of Arizona’s “heinous ... or depraved" cases,
concluding thet, *|w)henever about a
murder has proved offensive to the (Arizona)
court... it hes approved (the) especially
heinous [faector)*).

- 7Jl-}-

The underlying position of the ... court
appears to be that it can simply review
the circumstances of the murder and
divine whether the murder was
“especially heinous ....’" Cartwright v.
Maynard, 822 F.2d at 1491 (emphasis
added) (quoted in part in Maynard v.
Cartwright, 108 Ss. ct. at 1857).

The result of "such an open-ended
construction," Gregg v. Georgia, 428 U.S.
at 201, is not hard to predict: “within
the plethora of factors the Arizona
courts may consider there has been much
contradiction and inconsistency in the
application of the (F)(6) circumstance
+++ Plainly demonstrat[{ing) that the ...
circumstance has been applied in an
arbitrary and capricious manner in
violation of the most basic principles of
death penalty jurisprudence." Adamson v.
Ricketts, 865 F.2d at 1037-38 (surveying

- 72-

50 Arizona cases). See, @.g., decisions
cited supra notes 31, 35-40 and
accompanying text. As the Court of
Appeals concluded in this case, based on
its own comparison of Arizona cases,
"“Arizona’s existing standard ... for
murder committed in an ‘especially
heinous ... or depraved manner,’” has
"los(t] its ability to distinguish in a
principled manner between those it
condemns to death and those it does not.”
832 F.2d at 486. See id. at 484-85.
Compare Cartwright v. Maynard, 822 F.2d
at 1490.

The Court of Appeals’ comprehensive
analysis of the Arizona cases more than
amply documents that Arizona’s
construction of the “heinous ...
depraved" circumstance has replicated the
"major systemic defects identified in

Furman." Pulley v. Harris, 465 U.S. at

- 73 <-

54. In word as well as result, that
construction provides "no meaningful
basis for distinguishing the few cases in
which (death) is imposed from the many
cases in which it is not." Furman v.
Georgia, 408 U.S. at 313 (White, J.,

concurring).

Because this Court has "plainly
rejected the submission that a particular
set of facts surrounding a murder,
however shocking they might be, {are}
enough in themselves, and without some
narrowing principle to apply to those
facts, to warrant the imposition of the
death penalty," Maynard v. Cartwright,
108 S. Ct. at 1859, no further analysis
is necessary to invalidate Mr. Jeffers’

death sentence.

’
ee
Jeffers’ Case Runs Afoul of the
Eighth Amendment Rule of Godfrey
Even if the Arizona courts had
maintained a constitutional construction
of the “especially heinous ... or
depraved" aggravating circumstance, they
applied no such construction in Mr.
Jeffers’ case. Accordingly, his death
sentence violates the constitutional rule
of Godfrey v. Georgia. "(I}n light of
the facts and circumstances of the
murder({] that [the defendant) was
convicted of committing," the state
courts cannot "be said to have applied in
this case a constitutional construction"
of the “especially heinous ... or
depraved" circumstance. Godfrey Vv.

Georgia, 446 U.S. at 432.
The facts of Mr. Jeffers’ case, like

those of Godfrey, fall within no such

- 75 «-

construction supplied by state law. As
found by the state courts, those facts do
show that Mr. Jeffers formed an unlawful
intention, borne of years of domestic
strife, voluntary substance abuse, and
the victim’s having informed the
authorities about his illegal activities,
to kill Penelope Cheney, compare Godfrey
Vv. Georgia, 446 U.S. at 424 & n.3; and
that he premeditated and carried out that
intention in the full flowering of his
anger, not only deliberately (though
painlessly) killing Ms. Cheney, but also
cursing her and hitting her “with his
hands about the face four or five times"
after she died. J.A. 13-14. Swe J.A.
18-19. Much as Mr. Godfrey told the
police moments after killing his wife and
mother-in-law with shotgun blasts to the
head (in between which he "took out time
not only to strike his daughter on the

- 76-

head (with the barrel of his gun), but
also to reload his single-shot shotgun"),
Mr. Jeffers “committed a hideous crime"
that he had thought “about ... for [some
time)." Godfrey v. Georgia, 446 U.S. at
425-26; id. at 449 (White, J.,
dissenting). Like Mr. Godfrey, Mr.
Jeffers was found guilty of “the unjus-
tified, intentional taking of human
life." Maynard v. Cartwright, 108 S. ct.
at 1859. But these facts do not
"differentiate this case in an objective,
evenhanded, and substantively rational
way from the many ...- murder cases in
which the death penalty may not be
imposed," Zant v. Stephens, 462 U.S. at
879.

At the time of both of Mr. Jeffers’
sentencing proceedings, in the spring of
1978 and the summer of 1980, the only
Arizona Supreme Court guides to the

meaning of the “especially heinous ... or
depraved" circumstance were the
dictionary definitions that State v.

Knapp had quoted from Webster’s Third New
International Dictionary: "*heinous’*

means “‘hatefully or shockingly evil:
grossly bad’" and “‘depraved’" means
“‘marked by debasement, corruption,
perversion or deterioration.’*

114 Ariz. at 543, 562 P.2d at 716. As a
Godfrey, the sentencer here was
instructed exclusively "in the words of
the statute" and in a series of
“excessively vague" and "highly
subjective" synonyms. Maynard v.
Cartwright, 108 S. ct. at 1858; Califor-
nia vy. Ramos, 463 U.S. 992, 1000 n.12
(1983); Zant v. Stephens, 462 U.S. at a7s
(all discussing Godfrey). The State’s
submission to the trial court was -- as
it has remained in every court including

this one -- simply that the “totality of
the circumstances" controlled;*? and it
was those circumstances, in their
totality, that the trial court gave as
the only explanation of its finding that
"the defendant committed the offense of
first degree murder in an especially
heinous, cruel and depraved manner.”
J.A. 13-14 (quoted gupra pp. 6-7)- See
J.A. 60-61. Precisely as in Godfrey and

4“lyithout iterating a standard, the State's
presentencing submissions merely referred the
sentencer to a number of circumstances of the
case, such as Mr. Jeffers’ initiation of the
fatal acts, his injection of sore heroin than
“necessary to kill the victia, * his "cussing"

and “swearing at the body” and *verbalizations of

hate" towards the victia, his “needless and
senseless” actions, the victia’s “resistless”
condition, the “brutality exhibited in disposal

and interment," Mr. Jeffers’ “aacabre and heinous

propensities,” his failure to confess, his
"shockingly evil conduct,” and the “evidence

of a cruel and depraved mental state.” July 10,
1980 T. 189: State’s June 5, 1980 Resentencing
Memorandum, et 2-3. See alag Stete’s Dec. 16,
1980 Answering Brief on Appeal (Resentencing
Only), at 20-21 (arguing that **cotality of

circumstances’* controls). See alag Petitioner”s

Brief in this Court, et 15-17.

Maynard, therefore, there was "nothing in
th(e) few words" of the statute or in
"the events recited by" the trial court
to constrain “the unfettered discretion
of the (sentencer) and to satisfy the
commands of the Eighth Amendment.”
Godfrey v. Georgia, 446 U.S. at 428;

Maynard vy. Cartwright, 108 S. ct. at
1859.43

Nor was the “standardless and
unchanneled imposition of [a] death
sentence() in the uncontrolled discretion
of a basically uninstructed" sentencer

43th Arizona Supreme Court itself documented the
——— s overbroad approach to aggravating
circumstances, concluding that the trial court
(1) improperly “stretch(ed) the statute to
extreme length” in finding the “grave risk of
—_ to another person” circumstance; (2) erred
iading cruelty” although it was “not proven”
—— whe victis experienced no pain or menta!
fering;" and (3) relied “largely” on “acts
which occurred after the victia’s death” and
which the high court refused to endorse as proper

bases for an * fall .
57-62. especially heinous" finding. JA

“cured by the affirmance of th(at)
sentence({) by the state Supreme Court.”
Godfrey vy. Georgia, 446 U.S. at 429. For
the Arizona Supreme Court did in
microcosm in Mr. Jeffers’ case what the
en banc Court of Appeals in Adamson
concluded has been done in macrocosm in
construing and applying the “especially
heinous ... or depraved" circumstance in
all other post-Gretzler cases. Reviewing
the totality of the circumstances in such
light as was shed by the "dictionary
definitions of the (statutory) words
used" (J.A. 60) and asking only "that the
murder be ... especially depraved" (J.A.
63) (emphasis in original), the Court
affirmed the (F)(6) finding in Mr.
Jeffers’ case upon concluding that it
could identify factors in the case that
somehow “distinguished the surder() from
the ‘usual or the norm’ of first degree

- 61 -

murders." J.A. 62. See J.A. 64.
Although the Arizona Supreme Court
recited a number of factors (gee J.A. at
60-61), it focused on two -- the same two
factors noted above by means of which the
jury, sentencer, and supreme court
rightfully concluded that the surder of
Ms. Cheney was unjustified, premeditated,
and first degree: After the victim
apparently had died, Mr. Jeffers swore at
her and hit her on the head with his
hands four or five times, reciting the
names of his associates who were arrested
after Ms. Cheney spoke to the police.
J.A. 61, 63. §ee algo Jeffers vy.
Ricketts, 627 F. Supp. at 1342. The
court dressed up those facts in the
language of two of the Gretzler factors
~~ “relish” because Mr. Jeffers swore at
the victim and verbalized his motive for
killing her, and “gratuitous violence"

because of the four or five slaps. But
motivation, premeditation, and
deliberation is all that these factors
reveal. Wo more than Godfrey’s sultipile
shotgun blasts, the blow Godfrey
delivered to his daughter’s head with his
gun, and Godfrey’s statements about
contemplating the killing for years and
being prepared to “do it again,” can Mr.
Jeffers’ actions “be said to have
reflected a consciousness materially sore
‘depraved’ than that of any person guilty
of (first-degree) surder," so as to
provide a “principled way to distinguish
this case, in which the death penalty was
imposed, from the sany cases in which it
was not." Godfrey vy. Georgia, 446 U.S.
at 433.

The aptness of Godfrey's “no principled
way" conclusion as a description of what
transpired in Mr. Jeffers’ case is

- 63 -

illustrated in two ways, as the court
below concluded. First, the equation in
Mr. Jeffers’ case of the "relish" and
“gratuitous violence" factors with a
defendant’s verbal and physical
expressions of the sotivations
precipitating his homicidal deliberation
and action departed from any "core"
meaning the two factors once may have
had. Second, that equation also departs
from the analysis and results in numerous
first-degree surder cases in which no
“heinous ... or depraved" finding was
made or, if made, was reversed
notwithstanding far more "relish" and
post-mortem violence than Mr. Jeffers
exhibited.

If an’ "core" principle can be
discerned as giving shape to Gretzler’s
concept of “relish,* it is a requirement
of actions or verbalizations, distinct

from those constituting or revealing the
actus and gens rea during the commission
of the homicide itself, that manifest an
after-the-fact expression of the
defendant’s enjoyment of killing for its
own sake. State vy. Gretaler, 135 Ariz.
at 52, 659 P.2¢ at 11 (quoting gtate v.
Clark, 126 Ariz. 428, 437, 616 P.2a 888,
897 (1980)) ("we found a depraved state
of mind where defendant surdered four
people and then ‘kept a spent bullet as a
grisly souvenir of his crime’*).** In

contrast to every other case in which

““see also . 146 aria. 359, 365,
706 P.2e¢ 371, 377 (1985S) (defendant kept
“souvenic® ef crime); State vy. Gerlaugh.
Ariz. 449, 454, 696 P.2¢ 694, 699 (1985)
(Gefentent Loser Lihened the billing te
(ing) game"), Gtate vy. Gillies.

364, a 571 eet P. P.24 655, 661-62 (1984) (defendant
later joked about the killing); diate y.

. 138 aria. 63, 67, 75, 673 P.2e 1, 5,
1} (1983) (¢efendant leter “engaged tn « eecabre
celebration of the killing” end kept « “semento
from it); State ¥. Vickers. 129 Ariz. 506, 509,
633 P.24 315, 318 (1981) (defendant told

reporter he enjoys killing).

144

- 85 -

the Arizona Supreme Court has found
“relish,” however, Mr. Jeffers’ case
exhibits no such expressions either after
the homicidai acts or in reference to
killing anyone besides Ms. Cheney. The
"relish" concept cannot be expanded to
reach Mr. Jeffers’ contemporaneous
expressions of the motivation that led
him to commit the homicide itself without
losing all capacity to differentiate his
case, in which "heinousness" was found
and the death penalty imposed, from the
many Arizona cases in which that did not
occur notwithstanding contemporaneous and
even after-the-fact expressions of
premeditation, motivation, and even
homicidal pleasure in general going far
beyond anything of which Mr. Jeffers can

be accused. 45

“Scompare, e.g., State v. Carr, 154 Ariz. 468,
469, 743 P.2d 1386, 1387 (1987) (defendant
slashed victim’s neck and repeatedly stabbed
victim, saying as he did so, “‘that will teach
you;’" trial court found that offense was not
"heinous and depraved;" sentencing order lodged
with Court); State v. Kinkade, 147 Ariz. 250,
252, 709 P.2d 884, 886 (1985) (defendant lured
victim who owed defendant money on a gambling
debt to the desert where he shot the victim three
times in the back of the head, pulled the dead
victim out of the car, and shot the victim a
fourth time, saying, "'So, you like to gamble,
huh, fucker?;’" trial court found that offense
was not “heinous and depraved;" sentencing order
lodged with Court); State v. Vaughn, 147 Ariz.
28, 28-29, 708 P.2d 453, 453-54 (1985) (defendant
bragged to accomplice driving getaway car as they
left the scene that he forced the gas station
attendant into the rest room, made him kneel,
ordered him to beg for his life, then shot him
execution-style; trial court found that offense
was not “heinous or depraved;" sentencing order
lodged with Court); State v. Madsen, 125 Ariz.
346, 347-48, 353, 609 P.2d 1046, 1048, 1053
(1980) (after defendant lured his estranged wife
to desert on target-shooting pretext, he shot
her, commenting, “there, that’s done;" later
defendant told a friend, "It’s easy to get money,
you just blow someone away and collect the
insurance;"” “heinous and depraved" finding
reversed); State v. Brookover, 124 Ariz. at 39,
601 P.2d at 1323-24 (1979) (defendant shot drug
dealer in other dealers’ presence to convince
latter he was a “heavyweight;" after firing first
shot, following which the prone victim pleaded
for his life, defendant said, “‘don't worry,
buddy, it'll be over soon’* and shot him a second

A like conclusion pertains to the
"gratuitous violence" factor. If
Gretzler can be said to have given that
phrase any content at all, it was by
referring to a "‘barrage of violence’"
against the victim made up of numerous
shots or blows, “each of which," as the

court elsewhere has required, “would have

time; “heinous and depraved" finding reversed) .
See also State v. Graham, 135 Ariz. 209, 212, 660
P.2d 460, 463 (1983) (to “impress” his friends,
the smiling defendant described the victim's
reaction to being shot as "‘squeal[ing} like a
rabbit;’" “heinous and depraved" finding
reversed); State v. Rockwell], 161 Ariz. 5, 8 &
n.2, 9-10, 775 P.2d 1069, 1072 & n.2, 1073-79
(1989) (defendant "boasted" and “bragged” to
friends and relatives about "execution-style"
robbery-killing to “project(] a macho image;”"
"heinous and depraved" not found by trial court).
State vy. B.L. Smith, 141 Ariz. 510, 511-12, 687
P.2d 1265, 1266-67 (1984) (defendant “laughed and
joked about the surder” afterward; “heinous and
depraved" reversed); State v. Lamb, 142 Ariz.
463, 467, 690 P.2d 764, 768 (1984) (defendant
bragged to friend after bludgeoning two robbery-
murder victims to death with a two-by-four, that
"you can get away with gurder in Phoenix;" no
“heinous and depraved" finding reported). See

decisions reviewed in Adamson v.
Ricketts, 865 F.2d at 1037-38; Jeffers v.
Ricketts, 832 F.2d at 484-85.

been fatal in itself."*®© Yet the facts
found in this case, unlike those found in
every other case in which the Arizona
Supreme Court has relied upon the factor,
reflect nothing like a “barrage” of
potentially homicidal post-mortem
violence. Nor can the "gratuitous
violence" factor be enlarged, as it was
in Mr. Jeffers’ case, to any increment of
violence beyond that medically sufficient
to kill, without destroying the concept’s
capacity to distinguish “heinous” and

“6state vy. Gretzler, 135 Ariz. at 52, 659 P.2d at

ll (quoting State vy. Ceja, 126 Ariz. 35, 612
P.2d 491, 493-96 (1980) and State v. Ceja, 115

Ariz. 413, 414, 565 P.2d4 1274, 1277-78 (1977)
(multiple potentially fatal shots to multiple
victims)); State vy. Fisher, 141 Ariz. 227, 252,
686 P.2d 750, 775 (1984) (emphasis added). See,
e.g.,. State v. LeGrand, 153 Ariz. 21, 36, 734
P.2d 563, 578 (1987) (multiple stab wounds, "five
[of which] would have immediately killed" the
victim); State vy. Gerlaugh, 144 Ariz. 449, 454,
698 P.2d 694, 699 (1985) (multiple attacks
"caused several injuries, any of which would have
been fatal"); State vy. McCall, 139 Ariz. 147,
162, 677 P.24 920, 935 (1983) (multiple attacks,
each “potentially fatal").

"non-heinous," death and life, cases in
Arizona on the basis of a recognizable
principle.‘47

47 , 154, Ariz. 468,
469, 743 P.2d 1386, 1387 (1987) (defendant killed
victim with stab wound to neck, then stabbed
victim repeatedly in the back, including one 15"
wound; trial court found that offense was not
“heinous and depraved;" sentencing order lodged
with Court); State vy. Kinkade, 147 Ariz. 250,
252, 709 P.2d 884, 886 (1985) (defendant shot
victim in back of head at point-blank range three
times, then pulled dead victim out of the car and
shot hia — trial court found that offense
was not “heinous and depraved;" sentencing order
lodged with Court), State v. B.D. Saith, 138
Ariz. 79, 85-86, 673 P.24 17, 22-24 (1983)
(defendant strangled rape victim, held her while
codefendant stabbed her, then crushed victim with
rocks; “heinous and depraved" finding reversed);
State vy. Richmond, 136 Ariz. 312, 315, 319, 666
P.2d 57, 60, 64 (Ariz. 1983) (defendant beat
robbery victim unconscious with fists, dropped
“large rocks" on him, drove car over *helpless| |”
victim's head, crushing the skull, then drove the
car over the victim's body, crushing it; "heinous
and depraved" finding reversed by majority of
concurring justices); State v. Blazak, 131 Ariz
598, 602, 643 P.2d 694, 700 (1983) (defendant
shot bartender four times at close range during
robbery then shot two nearby patrons, killing
one; “heinous and depraved" finding reversed).
State vy. Watson, 120 Ariz. 441, 448, 586 P24
1253, 1260 (1978) (defendant shot victia four
times, the last time after victim was lying face
down on floor; “heinous and depraved" finding

reversed); State vy. Armett, 119 Ariz. 38, 41-42.

On this record, one of three con-
clusions must be reached: Either the
terms "relish" and “gratuitous violence"
have no “core” meaning at all beyond the
premeditation and unjustifiability that
characterize all first degree murders; or
the Arizona Supreme Court departed in Mr.
Jeffers’ case from whatever “‘objective’"
and *‘rationally reviewable’" meaning one
might possibly ascribe to those terms;
or that the court considers those charac-
teristics merely relevant, but not
decisive for a “heinous and depraved"
finding, and that it is the totality of
circumstances that, subjectively,

48, 579 P.2d 542, 545-46, 552 (1978) (defendant
lay in wait for robbery victia then shot his five
times with an M-1 carbine, “any one of which
{shots} could have beer fatal in itself;*
“heinous and depraved" not found). {See generally
decisions surveyed in Adamson vy. Ricketts, 865

F.2d at 1037-38; Jeffera vy. Ricketts, 832 F.2d at
484-85.

controls. Through whichever cause, the
terms “relish” and “gratuitous violence,"
at least as applied in this case, lost
the “ability to distinguigh in a
principled manner between those [whom
Arizona) condemns to death and those it

does not," Jeffers v. Ricketts, 832 F.2d
at 486.

Itt. ARIZONA’S EFFORTS TO AVOID THE
CLEAR DICTATES OF MAYNARD AND
GODFREY BY CREATING A SPURIOUS
“STANDARD OF REVIEW" ISSUE ARE
UNAVAILING

The State seeks to portray this case as
one that resolves into three questions:

(1) Is there a state-law "rule" according

to which the “especially heinous ... co:

depraved" circumstance is applied? (2)

If so, is that "rule" constitutionally

valid? (3) If so, is the instant case

within that "rule?" Petitioner’s Brief,

at 10-12. See algo Brief Amicus Curiae

- 92 -

of the Criminal Justice Legal Foundation,
at 4-8. The State contends that question
number (2) is not_open to Mr. Jeffers in
this Court and that question number (3)
can be governed by no stricter “standard
of review" than a “rational factfinder"
test.

This framing of the issues is
manifestly driven by the necessary
concession that the State’s second
question -- the so-called Maynard-Adamson
question -- is a pure question of federal
law, which the federal courts on
certiorari or habeas corpus are obliged
to review de novo. Petitioner’s Brief,
at 7, 10-11. See also Brief Amicus
Curiae of the Criminal Justice Legal
Foundation, at 9-10. The State’s
"standard of review" argument, advanced
as the sole basis for reversal of the

Ninth Circuit’s judgment, does not even

- 93 -

purport to take issue with that judgment
insofar as the judgment was rendered or
is sustainable under a Maynard-Adamson
analysis. The unavoidability of the
State’s conceding this point explains its
unsuccessful contortions in an effort
first, to excise the Maynard-Adamson
analysis from the panel opinion below,
then to obscure the panel’s and the en
banc Court of Appeals’ denial of
rehearing in the light of Adamson, and
finally to divert this Court from its
longstanding rule permitting the
prevailing party below to "defend a
judgment on any ground which the law and

record permit that would not expand the

relief granted." United States v. New
York Telephone Co., 434 U.S. 159, 166 n.8
(1977). Given the role that the Maynard-

Adamson analysis actually played in both
the original and rehearing proceedings in

- 94 -

Mr. Jeffers’ case and the clear
availability of that analysis for
defending the Ninth Circuit’s judgment in
this Court irrespective of the exact
ground of decision below, the State’s
inescapable concession with regard to its
so-called second question provides
sufficient basis for dismissal of
certiorari or affirmance of the Ninth
Circuit without more. See supra note

14.

In any event, Arizona only succeeds in
stating its third question as one on
which deference is due to the state
courts by a verbal sleight of hand,
namely, by using the singular “rule” to
refer to what in fact is two rules, one
arising under state law and the other
under federal law. In Arizona, as we
have shown in Part I supra, the same

verbal formulation -- that is, the same

- 95 -

statutory aggravating circumstance --
serves both the state-law function of
justifying a death sentence, and the
"constitutionally necessary" federal
function of "‘genuinely narrow[{ing] the
Class of persons eligible for the death
penalty and ... reasonably justify[ing}
the imposition of a more severe sentence
on the defendant compared to others found
guilty of murder.’" Lowenfield v. Phelps,
108 S. Ct. at 554 (quoting Zant v.
Stephens, 462 U.S. at 876-77)). Once
these two functions are separated, the
distinctness of the standard of federal
review appropriate to each becomes clear,
as does the pernicious and unprecedented
nature of the State’s attempt to conflate
the two standards. For, while it is true
that a state court’s "especially heinous
+++ Or dad praved" finding, insofar as it

is a matter of state law, is reviewable

- 96 -

by the federal courts only under the
"rational factfinder" rule of Jackson v.

Virginia, 443 U.S. 307, 313, 324

(1979) ,48 a different standard of review

48 jackson rovides the appropriate standard of
review en -- as in the cases the State cites as
supposedly in conflict with the decision below --
the sole issue is whether the State has adduced
sufficient evidence to convince a rational
factfinder beyond a reasonable doubt of the
defendant’s eligibility for death under an
aggravating circumstance or other statutory
provision that either has "no part to play in the
constitutionally required narrowing process

(Lowenfield v, Phelps, 108 S. Ct. at 555; e.g.,
Barclay v, Florida, 463 U.S. at 967-69 & n.16

(Stevens, J., concurring)) or has been authorita-
tively narrowed so as routinely to serve its
federal role (e.g., Barclay v. Florida, 463 U.S.
at 947-48 & nn.4, 5 (plurality opinion)). See
Magwood v, Smith, 791 F.2d 1438, 1441, 1447-50
(llth Cir. 1986), cert, denied, 110 S. Ct. 291
(1989) ("clear error” test applied in reviewing
state trial court’s rejection of two mitigating
factors, neither of them subject to constitu-
tional challenge); Ford v. Strickland, 696 F.2d
804, 819 (llth Cir.) (en bane), cert, denied, 464
U.S. 865 (1983) (limited federal review when
petitioner “contends that under Florida case law,
the court should have set aside two aggravating
circumstances" specified in a "properly drawn
statute with appropriate standards to guide
discretion” (emphasis added)). See also Godfrey
v, Georgia, 446 U.S. at 451, 454-56 (White, J.,
dissenting) (only upon concluding that the
aggravating circumstance was not “assailable on

- 97 -

is applicable when the "especially
heinous ... or depraved" formulation is
used by the State to satisfy the distinct
"fundamental constitutional requirement"

(Maynard v. Cartwright, 108 S. Ct. at
1858) of providing "an objective,

constitutional grounds" or "aberration([ally]”"
applied does opinion review the finding of that
circumstance under a "rational factfinder"
standard). The “rational factfinder" analysis
governs most aggravating circumstance determina-
tions, for most aggravating circumstances on
their face clearly and concretely perform the
constitutionally required limiting and channel -
ing function. See Godfrey v, Georgia, 446 U.S.
at 423 n.2 (distinguishing “especially heinous"
cognate at issue there from all other aggravating
circumstances in the Georgia statute which "are
considerably more specific or objectively measur-
able"). Review of the sort discussed in Part II
Supra, accordingly is reserved for, the few
statutory "narrowing" devices such as Arizona's
“especially heinous ... or depraved” clause that
on their face are "so broad that [they] may ...
vitiate(]) the role of the aggravating circum-
stance in guiding the sentencing discretion,”
McCleskey v, Kemp, 481 U.S. 279, 305 (1987), and
"so vague that they would fail adequately to
channel ... sentencing patterns ... with the
result that a pattern of arbitrary and capricious
sentencing like that found unconstitutional in
Furman could occur,” Gregg v, Georgia, 428 U.S.
act 195 n.46 (opinion of Stewart, Powell and
Stevens, JJ.).

- 98 -

evenhanded, and substantively rational
way" of distinguishing Mr. Jeffers’ case
from the many first degree murder cases
in Arizona in which death sentences have

not been imposed. Zant v. Stephens, 462
U.S. at 879. Because the latter

requirement is a federal constitutional
requirement, the question of the State’s
compliance with it -- the Godfrey
question -- is subject to the same
independent federal constitutional review
as the Maynard-Adamson question with
regard to which the State concedes the
point.

Not only in Godfrey and Maynard but in
numerous analogous cases, this Court has
confronted "rules" that serve dual state
and federal functions and has carefully
avoided letting its deference to a state
court’s conclusion with regard to the

rule’s service of a state-law function

- 99 =

interfere with the Court’s own
independent review of the rule’s capacity
under the facts and circumstances of the
case to serve its federal constitutional
function. For example, a state court’s
ruling that a custodial confession is
"voluntary," in keeping with the various
evidentiary functions that the state’s
voluntariness rule serves, has never led
this Court to defer to that ruling in
determining whether the manner in which
the confession was obtained serves the
functions of the similarly christened,
but not always similarly conceived,
voluntariness rule under the Fifth and
Fourteenth Amendments. For, as the Court
frequently has remarked in that context,
“we cannot avoid our responsibilities by
permitting ourselves to be ‘completely
bound by state court determination of any

issue essential to decision of a claim of

- 100 -

federal right, else federal law could be

frustrated ....’" Haynes v. Washington,

373 U.S. 503, 515-16 (1963) (quoting
Stein v. New York, 346 U.S. 156, 181
(1953)). “Without exception," therefore,
the Court’s confession cases hold that
the ultimate issue of ‘voluntariness’ is
a legal question requiring independent
federal determination. ... As early as
1978, the Court reaffirmed that it was
‘not bound by’ a state~-court
voluntariness finding and reiterated its
historic ‘duty to make an independent
evaluation of the [issue}.’" Miller v.

Fenton, 474 U.S. 104, 110 (1985) (quoting

Mincey v. Arizona, 437 U.S. 385, 398

(1978)).49

49see also Jackson v. Denno, 378 U.S. 368, 386-87

1964) (States are free to use juries to
pHs Ah ne Paine di in service of the state-
law functions of the voluntariness rule, — are
required initially to use judges to deters ne
voluntariness in order to serve the rule’s

- 101 -

Examples of this principle abound.
Manifestly, what for state-law purposes

may sufficiently constitute "probable

federal constitutional functions) ; Rogers v.
Richmond, 365 U.S. 534, 547 (1961) (Court will
not defer to historical facts found in the
process of a state voluntariness determination if
the function of the state-law rule differs
substantially from the functions of the federal
voluntariness requirement, because "(hjistorical
facts ‘found’ in the perspective framed by an
erroneous legal standard cannot plausibly be
expected to furnish the basis for correct
conclusion if and merely because a correct
standard is later applied to them"). In this
case, unlike in Rogers v, Richmond, supra, no
questions of historical fact arise. Rather, the
concepts that the issue presented here call upon
the Court to apply -- whether "the narrowing
function required for a regime of capital punish-
ment" has been served, and whether the
“heinousness" aggravating circumstance provides
"‘clear and objective standards, '" "‘specific and
detailed guidance,’" a "*rationally reviewable

[capital sentencing) process,’" and "‘a
meaningful basis for distinguishing the few cases
in which [the penalty] is imposed from the many
cases in which it is not,’* Lewenfield v. Phelps.
108 S$. Ct. at 555; Godfrey v, Georgia, 446 US.
at 427-28 (citations omitted) -- all are
manifestly legal] standards that “can be given
meaning" by this Court “only through its
application [of those standards} to the
particular circumstances of a case," hence as to
which the Court’s review must be plenary. Miller
vy. Fenton, 474 U.S. at 114.

: - 102 -

cause" to search, seize, or arrest,
"competency to stand trial," “effective
legal representation," "intent to kill"
sufficient to warrant imposition of the
death penalty, "full and adequate”
consideration of mitigating
circumstances in capital sentencing, or a
“comprehensible instruction" to juries
on any number of guilt-innocence and
sentencing-phase issues does not
necessarily satisfy the purposes served
by the Fourth, Eighth, and Fourteenth
Amendment rules that go by the same |
names. Accordingly, in all those fields,
and in many more besides, the Court
routinely applies its own independent
judgment to the question whether the
facts of a case bring it within those
federal constitutional "rules,"
notwithstanding that the cases nearly

always reach the Court on a record

- 463 <-

containing a state-court determination
that the facts bring the case within a

similarly denominated state-law "rule."5°

90E g., , 109 S. Ct. 2934, 2950
(1989) (although Texas concluded that its
sentencing-phase question concerning the
defendant’s "future dangerousness" adequately
served the function of bringing mitigating
factors before the sentencer for state-law
purposes, this Court, on independent review,
concluded that the procedure fell afoul of the
Eighth Amendment function the submission and
unfettered consideration of mitigating factors is
required to play in capital sentencing); Mills v.
Maryland, 108 S. Ct. 1860, 1867, 1870 (1988)
(review of jury instruction on mitigation that
state’s high court had deemed sufficient to
inform individual jurors that they were required
to consider whatever mitigation each of them
found in the case as required by state law;
"(w)hile conceding that the [Maryland] Court of
Appeal’s construction of the jury instruction .
is plausible," hence that under a "rational
basis" test affirmance would be required, Court
went on to conduct independent review under the
Eighth Amendment and to reverse): Tison v,
Arizona, 481 U.S. 137, 155-56 n.11 (1987) ("The
fact that the Arizona Supreme Court purported to
find ‘intent to kill’ before affirming [the]
death sentences” involved in the case did not
bind the Supreme Court to conclude that the
federal “intent to kill" threshold for capitally
punishing the petitioners had been crossed: upon
independent review, the Court concluded that
Arizona's "intent" rule does not serve the
function that federal law requires of its
similarly worded minimum-culpability rule and

- 104 -

remanded for further proceedings under the
federal rule); Cabana v, Bullock, 474 U.S. 376,
385 n.3, 387, 390 (1986) (similarly independent
review of alternative federal-law threshold for
capital sentencing that the defendant “actually
killed," notwithstanding state-law determination
under Mississippi’s accessorial liability rules
that the defendant "by legal definition [had]
actually killed;’" for "there is a class of
persons vom the State may define as having
committed capital murder but whom [the Eighth
Amendment provides] the State may not
permissibly execute" (emphasis in original;
citation omitted); Francis v. Franklin, 471 U.S.
307, 315-16 (1985) (in reviewing jury instruction
that state courts had deemed sufficient to inform
the jurors in regard to the prosecution’s burden
of proof, Court held that "(t]he question ... is
not what the State Supreme Court declares the
meaning of the charge to be, but rather what [the
Court itself concludes that] a reasonable juror
could have understood the charge as meaning") ;

, 446 U.S. 335, 341-43 (1980)
(review of whether facts of case reflected
"effectiveness of counsel" was independent not-
withstanding state courts’ satisfaction on the

issue); Drope v. Missouri, 420 U.S. 162, 175

(1975) (quoting Norris v, Alabama, 326 U.S. 271,
276 (1945)) (notwithstanding state court

determination that defendant was competent to
stand trial, Court concluded that "ic is
‘incumbent upon’" it to review the defendant's
competency independently “‘in order that the
appropriate enforcement of the federal right may
be assured’"); Aguilar v. Texas, 378 U.S. 108,
111 (1964) (independent review of state judicial
determination of “probable cause“).

- 105 -

A similar independent analysis rightly
applies to the Godfrey issue presented in
the instant case. For notwithstanding
the state courts’ satisfaction that the
“especially heinous ... or depraved" cir-
cumstance served its appointed state-law
function of setting Mr. Jeffers’ case
apart from some unstated "norm" of
first-degree murders in Arizona, that
circumstance, thus interpreted ard
applied, is "so vague" and "so broad"
that it "vitiate[s] the [federal
constitutional] role of the aggravating
circumstance in guiding ... sentencing
discretion," with "the result that a
pattern of arbitrary and capricious
sentencing like that found
unconstitutional in Furman [has]

occur[(red]." McCleskey v. Kemp, 481 U.S.

279, 305 (1987); Gregg v. Georgia, 428
U.S. at 195 n.45.

- 106 - - 107 -

As the Eleventh Circuit recognized soon dissent below, the State can avoid that
after Godfrey, unraveling precisely the issue only by disregarding the square
same state and federal functions that holdings of both Godfrey and Maynard and
Arizona attempts to obscure by tying in arguing that the words "especially
knots here: heinous ... or depraved," standing alone,

The question is not whether we agree are constitutionally sufficient. Respect

with the sentencing court that

appellant [under state law] should for precedent and reality alike compel

receive the death penalty. See note 51
supra [discussing the application of

to that question).
... Rather, the issue we must decide

rejection of that argument.

is whether the construction of the CONCLUSION

("especially heinous"] factor evinced

by the [state] court([s’] application of The judgment of the United States Court
it to the facts of this case comports

with the eighth amendment requirement of Appeals for the Ninth Circuit should

that death sentences be based on clear,
detailed, and rationally reviewable
standards. See Godfrey v. Georgia, 446
U.S. at 427-33.

Proffitt v. Wainwright, 685 F.2d at 1263. Respectfully submitted
The latter issue, without doubt, is a

be affirmed.

James S. Liebman*
(Appointed by the Court)

federal legal issue requiring
435 W. 116th St.

independent federal judicial Box B-16
New York, New York 10027
consideration. It is the issue that the 212-854-3423

majority posed and resolved below,
correctly under Godfrey. Like the

- 108 -

Susan A. Kettlewell
Pima County Public Defender
Donald Ss. Klein
Frank P. Leto
Assistant Public Defenders
32 North Stone
Fourth Floor
Tucson, Arizona 85701
602-740-5300

*Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0659%3A06. Public record. Not legal advice.