# Amicus Curiae Brief — Collins v. Youngblood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 37

## Text

No. 89-742 (H) |

IN THE

Supreme Court af the Bnited States

OCTOBER TERM, 1989

JAMES A. COLLINS, Director,
Texas Department of Corrections,
Petitioner,
v.

CARROLL F. YOUNGBLOOD,
Respondent.

On Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

BRIEF OF WILBERT LEE EVANS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT

ARTHUR F.. MATHEWS *

THOMAS F.. CONNELL

MARK D. CAHN
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20087-1420
(202) 663-6000

Counsel for Amicus Curiae

February 26, 1990 * Counsel of Record

BEST AVAILABLE COPY

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QUESTIONS PRESENTED

1. Whether it violates the ex post facto clause of the
United States Constitution retroactively to apply a penal
statute which validates a verdict that was void and unen-
forceable under the law in place when the offense was
committed and the verdict was rendered.

2. Whether it violates the ex post facto clause of the
United States Constitution retroactively to apply a penal
statute which deprives a defendant of an absolute de-
fense to imposition of punishment available under the law
in place when the offense was committed and the verdict
was rendered.

(i)

TABLE OF CONTENTS

QUBSLIONS PRESENTED .................20..202.00--ccccoseeosesses

ee ss EE

ities lic di deindiinadeebienedtnseestensiasnasisteersceneccess

SUMMARY OF ARGUMENT ..........00..2..2.0.2.2.-.e.e-0e

EE ESE ee

I. RETROACTIVE APPLICATION OF THE
TEXAS STATUTE AT ISSUE HERE VIO-
LATED THE EX POST FACTO CLAUSE
BECAUSE IT DEPRIVED THE DEFEND-
ANT OF THE “SUBSTANTIAL RIGHT,”
MANDATED BY THE LAW IN PLACE AT
THE TIME OF TRIAL, TO BE FREE FROM
THE VERDICT OF GUILT AND PUNISH-
MENT RENDERED AGAINST HIM ............

A.

From the Beginning of the Republic, This
Court Has Construed the Ex Post Facto
Clause to Prohibit a Wide Array of Retro-
spective Legislation Which Has a Substantial
Adverse Impact on the Defendant ..............

This Court and the Lower Courts Have Re-
peatedly Held That New Laws of Criminal
Procedure Cannot Be Applied Retroactively
If They Cause Substantial, Demonstrable
Prejudice to the Defendant _......

. The Revised Texas Statute Caused Substan-

tial Demonstrable Prejudice to Youngblood,
Because It Retroactively Deprived Him of
His Right to Liberty and the Presumption of
RN

10

10

11

15

21

iv

TABLE OF CONTENTS—Continued

Page
Il. EVEN IF THE STANDARD URGED BY
PETITIONER AND THE UNITED STATES
WERE ADOPTED, THE DECISION BELOW |
WOULD STILL BE CORRECT .......................... 27
SESS ee Be serine ere ne eR 30

v

TABLE OF AUTHORITIES

CASES Page
Beazell v. Ohio, 269 U.S. 168 (1925) -..........000000..... 13, 19
Bogany v. State, 661 S.W.2d 957 (Tex. Crim. App.

Re a Be ania igeiitentticeicninccnince 6, 7
Buster v. State, 42 Tex. 315 (1875) .............0.20000.... 4,5
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) .......... passim
Camp v. State, 200 S.E. 126 (Ga. 1939) ................. 18
Clements v. United States, 266 F.2d 397 (9th

Cir.), cert. denied, 359 U.S. 985 (1959) ........... 18
Dobbert v. Florida, 432 U.S. 282 (1977) ................ passim
Duncan v. Missouri, 152 U.S. 377 (1894) .............. 16
Ellison v. State, 4832 S.W.2d 955 (Tex. Crim. App.

I cecediisheteiiceciecaia a nr. 7
Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d

114 (1984), cert. denied, 471 U.S. 1025 (1985).. 3
Evans v. State, 35 Tex. Crim. 485 (1896) ............. 4
Evans v. Thompson, 881 F.2d 117 (4th Cir.), cert.

pending, No. 89-516 (filed Sept. 27, 1989) ........... 2, 26
Ex parte Abahosh, 561 S.W.2d 202 (Tex. Crim.

Ss TRE. sndiiethndtcadlsiniailnne ccccanasncascctdietiieinammenadilads 17, 18
Ex parte Spaulding, 687 S.W.2d 741 (Tex. Crim.

ee ee taste ett sertaciciciaierntetncticn 7, 8, 29
Falter v. United States, 23 F.2d 420 (2d Cir.),

cert. denied, 277 U.S. 590 (1928) .......................- 18
Geld a. TI Fie i I weectrctcececccnessccecesones 16
Hopt v. Utah, 110 U.S. 574 (1884) -....0000222020... 16, 20
Hurt v. State, 199 S.E. 801 (Ga. 1938) -................. 18
In re Medley, 134 U.S. 160 (1890) ........................... 15
King v. State, 710 S.W.2d 110 (Tex. Crim. App.

1986), cert. denied, 484 U.S. 829 (1987) ............ 5
Kring v. Missouri, 107 U.S. 221 (1883) -.............. passim
Lindsey v. Washington, 301 U.S. 397 (1937) ........ 16
Mafnas v. Government of Guam, 228 F.2d 283

i a a 18
Mallett v. North Carolina, 181 U.S. 589 (1901) ....passim
Miller v. Florida, 482 U.S. 423 (1987) ................... passim
Moore v. State, 43 N.J.L. 203 (1881) ....................... 17, 29
Ocker v. State, 477 S.W.2d 288 (Tex. Crim. App.

IIE ictnsishensdininadstiicendeedieteaelocieaiaaiaseedanitadialeh settee Dacealaia 7

vi

TABLE OF AUTHORITIES—Continued

Page
Patterson v. Commonwealth, 222 Va. 653, 283
S.E.2d 212 (1981) ; lade sedenihies 2
Rubino v. Lyunaugh, 845 F.2d 1266 (5th Cir.
1988) ictapekcieiaesscdaeamandiiahdeniaatibiiesaeeniiaisna’ 17, 23
Shackelford v. State. 277 S. W.2d 695 (Tex. Crim.
fA rere et ene pena RR a 5
Smith v. State, 479 S.W 2d 680 (Tex. Crim. App.
ee 7,8
Sobiek v. Superior Court, 28 Cal. App. 3d 846,
106 Cal. Rptr. 516 (1972) | 17
State v. Edwards, 701 P.2d 508 (Wash. 1985) (en
FER ENEEN ep e SOEEK Sy A ev R EE Oe EE EO A 18
State v. Keith, 68 N.C. 140 (1869) ——_ + |
State v. Norton, 675 P.2d 577 (Utah 1983), cert.
denied, 466 U.S. 942 (1964) .................................. 26
Thompson v. Missouri, 171 U.S. 380 (1898) passim
Thompson v. Utah, 170 U.S. 343 (1898)... passim

Tura v. State, 5384 S.W.2d 695 (Tex. Crim. App.
1976), orrld. on other grounds, Cooper v. State,
631 S.W.2d 508 (Tex. Crim. App. 1982) ........... 5

United States ex rel. Massarella v. Elrod, 682 F.2d
688 (7th Cir. 1982), cert. denied, 460 U.S. 1037
(1983)

United States v. Fraidin, 63 F. Supp. 271 (D. Md.
DEERE oie sens PAS OY met ACIDS RA te RO a 18

United States v. Hall, 26 F. Cas. 84 (D. Pa. 1809)

(No. 15,285), aff'd, 10 U.S. (6 Cranch) 171

ERR SEIS tended dee ocean A rates OEY CO 13
United States v. Kowal, 596 F. Supp. 375 (D.

ERR TNA te et or RA ee Oe 18
Weaver v. Graham, 450 U.S. 24 (1981) ...00.0000000..... passim
Wilkes v. State, 237 S.W.2d 991 (Tex. Crim. App.

ei INASP TTC NC Oe aD 5
Wooldridge v. State, 18 Tex. Crim. 443 (1883) ... 4,7

Younablood v. Lynaugh, 882 F.2d 956 (5th Cir.),
cert. granted, 110 S. Ct. 560 (1989) 0.000022... 21, 22

vil

TABLE OF AUTHORITIES—Continued

STATUTORY PROVISIONS

Acts 1985, 69 Leg., ch. 291, § 1, eff. Sept. 1, 1985
Tex. Code Crim. Proc. art. 693 (1925).
Tex. Code Crim. Proc. art. 626 (1856) __. '
Tex. Code Crim. Proc. Ann. art. 37.07(2) (b) (2)
(Vernon 1981) . >
Tex. Code Crim. Proc. Ann. ‘art. 37. 07(2) (b) (2)
(Vernon Supp. 1990)... sdambiatisetabiaianitatitiintteaohs
Tex. Code Crim. Proc. Ann. art. 37. 07(3) (c)
(Vernon 1981 & Supp. 1990) .................................
Tex. Code Crim. Proc. Ann. art. 37.10(b) (Vernon
RN, TIE mcctitiicisitninssitaiemnstententenpnneticmansncinntics
Tex. Code Crim. Proc. Ann. art. 44.24(b) (Vernon
ESRI a opr edarie ean wo nee Aw aerer ener
Tex. Code Crim. Proc. ‘Ann. art. 44. 29 (a) (Vernon
BN csi staeaintdomedoeiantomaimncdieniad
gt Re UG GO eRe eee
Va. Code § 19.2-264.4(E) (1983) ........................022.-+

Page

6
4
4

IN THE
Supreme Court of the United States

OCTOBER TERM, 1989

No. ®9-742

—_—— 9 —-

JAMES A. COLLINS, Director,
Texas Department of Corrections,
» Petitioner,
CARROLL F. YOUNGBLOOD,
Respondent.

° On Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

BRIEF OF WILBERT LEE EVANS AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE
WILBERT LEE EVANS *

This case presents the question of whether a state stat-
ute may retroactively deprive a criminal defendant of
the right, guaranteed by the law in place at the time of
his offense and trial, to an order vacating any finding of
guilt and prohibiting the imposition of punishment upon
proof of error in the jury’s verdict. Wilbert Lee Evans
(“Evans”) is a capital prisoner in the Commonwealth of

* Written consent to the filing of this brief has been obtained
from the parties to this case. The consent letters accompany this
brief.

2

Virginia whose Petition for a Writ of Certiorari, now
pending before this Court, raises a similar question.'

Evans was tried, convicted and sentenced to death in
April 1981 for an offense that occurred in January 1981.
The capital sentencing statute in place at the time of
Evans’ offense, trial, sentencing, and direct appeal gave
the prosecution one and only one opportunity ‘2 obtain a
death sentence: “{I]f the Commonwealth failed to secure
a death sentence due to errors in the sentencing process
it was foreclosed from seeking capital resentencing and
the defendant received an automatic sentence of life im-
prisonment.” Evans v. Thompson, 881 F.2d 117, 119 (4th
Cir.), cert. pend’g, No 89-516 (filed Sept. 27, 1989).?

A full year after Evans’ conviction and death sentence
had become final, Vire‘nia enacted an emergency amend-
ment to its capital sentencing statute which repealed the
prior law and authorized for the first time capital re-
sentencing for those cases in which a capital sentence was
set aside for error. Less than three weeks later, the Com-
monwealth confessed error and moved to vacate Evans’

1 See Evans v. Thompson, 881 F.2d 117 (4th Cir.), cert. pending,
No. 89-516 (filed Sept. 27, 1989). Evans’ petition presents four addi-
tional questions: (1) whether imposition of the death sentence upon
resentencing in his case violated the equal protection clause of the
United States Constitution; (2) whether the Commonwealth violated
Evans’ right to the due process of law by failing to disclose known
prosecutorial misconduct for two years, until Virginia had enacted
emergency legislation authorizing for the first time capital resen-
tencing; (3) whether Evans was denied the effective assistance of
counsel during the course of his direct appeal; and (4) whether
Evans was denied the due process of law by the trial court’s er-
roneous suggestion, in response to a specific jury question, that a
split decision would not automatically result in a sentence of life
imprisonment, when in fac* state law mandated that it would.

2 See also Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d
212 (1981). Similarly, Virginia law mandated that the defendant
receive an automatic sentence of life imprisonment if the jury failed
to reach unanimous agreement in the sentencing phase. See Va.
Code § 19.2-264.4(E) (1983).

3

death sentence, admitting that the sentence rested on evi-
dence that was “ ‘seriously misleading’ or ‘otherwise de-
fective.’ ” * Over objection, Evans was resentenced under
the new statute, and received the death sentence.

Evans’ claim, like Youngblood’s, is that he was entitled
to the disposition mandated by the earlier law—which for
Evans would have been a sentence of life imprisonment
without parole. In Youngblood’s case, the new law meant
the difference between innocence and guilt; in Evans’ case,
the difference is between life and death.

STATEMENT

The facts of Youngblood’s offense are not in dispute and,
despite their questionable relevance, have been set out in
detail by petitioner in its brief. At the same time, peti-
tioner ignores a body of historical fact concerning Texas
law which is of critical importance to the proper determi-
nation of the ex post facto issue before the Court. Prop-
erly considered, those historical facts refute the notion,
central to petitioner’s argument, that Youngblood’s right
to a new trial was a “quirk in state law” and “a mere
fortuity with no basis in law or logic.” *

For over 125 years, Texas law unequivocally provided
that any jury verdict which assessed an unauthorized
punishment was void at its inception; and that whenever
judgment was entered on such a verdict, the defendant
was entitled to a new trial on all issues. In 1856, the
Texas legislature adopted its first Code of Criminal Pro-
cedure. Article 626 of the Code, which remained virtually
unchanged until 1965, provided defendants with a right

3 The Virginia Supreme Court later strongly criticized the prose-
cutor for his “indifferent, careless’ conduct in introducing at Evans’
capital sentencing hearing evidence that the prosecutor knew was
seriously flawed. See Evans v. Commonwealth, 228 Va. 468, 323
S.E.2d 114, 117, 120 (1984), cert. denied, 471 U.S. 1025 (1985).

4 See State of Texas’ Petition for Writ of Certiorari at 13 (filed
Nov. 18, 1989) (hereafter “Petition for Writ of Certiorari”).

4

to have a jury assess both guilt and punishment in a
unitary verdict.’ The Texas courts construed this legisla-
tion as providing defendants with an absolute protection
from the imposition of punishment if the jury’s verdict
was incomplete, erroneous, or otherwise unauthorized in
any respect. Thus, if the jury returned a finding of guilt,
but failed to assess punishment, the determination as to
guilt was rendered void; such a verdict would be “but a

dead letter, a nullity to which nothing could give force or
vitality.” °

Similarly, if the jury failed to provide both elements
of the verdict with the proper degree of specificity—or
assessed a punishment in excess of, or different from,
that authorized by law—the verdict was rendered invalid
in its entirety, and the defendant was entitled to a new
trial. Buster v. State, 42 Tex. 315, 320 (1875). Although
the courts sometimes questioned the wisdom of a legis-
lative policy that nullified an entire verdict (thereby re-
turning the defendant to liberty) because of errors in
only one portion of it,’ they nevertheless enforced that
policy with uncompromising rigor.* And they insisted

5 Article 626 provided, in pertinent part, that the jury “must find
that the defendant is either ‘guilty’ or ‘not guilty ;’ and, in addition
thereto they shall assess the punishment in all cases where the same
is not absolutely fixed by law, to some particular penalty.” Tex.
Code Crim. Proc. art. 626 (1856). That section became Article 693
when the Code was revised in 1925, but otherwise remained essen-
tially unchanged.

® Wooldridge v. State, 13 Tex. Crim. 443, 457 (1883). The court
further observed that under such circumstances, no court would be
“authorized or warranted in holding the verdict sufficient, and in

supplying the deficiency and awarding a punishment commensurate
with the finding... .” Jd.

7 See Buster v. State, 42 Tex. at 320.

8 See, e.g., Wooldridge v. State, 13 Tex. Crim. 443 (1883) (judg-
ment reversed where jury found defendant guilty of “fist” degree
murder, instead of “first” degree murder); Evans v. State, 35 Tex.
Crim. 485, 487 (1896) (new trial ordered where jury sentenced de-

5

that any change in the law must come from the legisla-
ture.”

In 1965 and 1967, the Texas legislature made funda-
mental changes to the Criminal Code (hereafter, the
“1967 amendments’’) ; but at the same time it elected to
continue, rather than change, the century-old rule voiding
an entire jury verdict for errors in the penalty phase.
That decision was all the more significant because among
the amendments, Texas abolished the requirement of a
unitary verdict on both guilt and punishment, and estab-
lished the current, bifurcated proceeding. The 1967
amendments allowed the defendant to elect whether to
have punishment imposed by judge or by jury; if the de-
fendant chose the latter, he was entitled to the same pro-
tections afforded by the 1856 Code.” Specifically, the

fendant to “reform school” and statute authorized punishment only in
the “penitentiary” or in the “house of correction and reformatory”’) ;
Shackelford v. State, 277 S.W.2d 695 (Tex. Crim. App. 1925) (judg-
ment reversed, and new trial ordered, where trial court sought to
rectify improper instruction concerning permissible range of pun-
ishments by lowering punishment assessed by jury to minimum level
permitted by law; even though the reformed verdict was more ad-
vantageous to the defendant than the original erroneous one, the
defendant was still entitled to have entire verdict set aside). In
subsequent cases, the Texas courts have forgiven obvious gram-
matical errors in otherwise valid verdicts, see, e.g., Wilkes v. State,
237 S.W.2d 991, 992 (Tex. Crim. App. 1951); however, the courts
continued to invalidate the entire verdict whenever any portion of
it was unauthorized or erroneous. See discussion in text at 6-7.

9 See Buster v. State, 42 Tex. at 320.

10 The 1967 amendments provided no similar protections to de-
fendants who elected to have punishment determined by the court;
if an error occurred in a judge’s sentencing, it could be corrected
without impairing the finding of guilt. See King v. State, 710
S.W.2d 110, 114 (Tex. Crim. App. 1986), cert. denied, 484 U.S. 829
(1987) (where trial court assessed unauthorized punishment, Court
of Appeals can set aside sentence, and remand for new hearing on
punishment); Tyra v. State, 534 S.W.2d 695, 698 (Tex. Crim. App.
1976), ovrld. on other grounds, Cooper v. State, 631 S.W.2d 508
(Tex. Crim. App. 1982).

6

amendments required that the “punishment . . . be as-
sessed by the same jury” that determined guilt.'' In ad-
dition, whenever the defendant elected to have punish-
ment imposed by jury, the verdict “shall not be complete
until the jury has rendered a verdict both on the guilt
or innocence of the defendant and the amount of punish-
ment, where the jury finds the defendant guilty.” ”
Finally, the amendments provided that where the jury
failed to agree on either portion of the verdict, “a mis-
trial shall be declared, the jury shall be discharged, and
no jeopardy shall attach.” ™

At the same time that the Texas legislature chose to
reconfirm the important protections provided by the prior
law, they chose not to give the appellate courts any power
to reform or modify punishment assessed by a jury. See
Tex. Code Crim. Proce. Ann. art. 44.24(b) (Vernon 1979).
The courts themselves recognized this limitation, and
lamented it: “The Legislature ... never [saw] fit to
give [the] Court [of Criminal Appeals] or any inter-
mediate appellate Court of [Texas] authority to assess
punishment or reduce punishment assessed by a jury
where the conviction was for a non-capital felony.”
Bogany v. State, 661 S.W.2d 957, 959 (Tex. Crim. App.
1983) ‘en banc) (Teague, J., concurring). -

For the past two decades, Texas courts have inter-
preted the 1967 amendments in harmony with the pro-
tections afforded by the earlier Code. In_an unbroken
line of cases Texas courts have held that where punish-

Tex. Code Crim. Proc. Ann. art. 37.07(2)(b)(2) (Vernon 1981)
(emphasis added). By legislation effective September 1, 1985, this
provision was amended to permit, for the first time, assessment of
punishment by a different jury on retrial if the initial punishment
was set aside for error. Acts 1985, 69th Leg., ch. 291, $1, eff.
Sept. 1, 1985. See Tex. Code Crim. Proc. Ann. art. 37.07(2)(b)(2)
(Vernon Supp. 1990); art. 44.29(a) (Vernon Supp. 1990).

12 Tex. Code Crim. Proc. Ann. art. 37.07(3)(c) (Vernon 1981 &
Supp. 1990).

18 Jd.

T

ment was erroneously imposed by the jury, the case stood
precisely in the same position as if the jury had failed
to reach a verdict—and thus, in accordance with the
statutory provisions set forth above, the entire verdict
(of both guilt and punishment) was void from inception.
See, ¢.g., Ellison v. State, 4832 S.W.2d 955, 957 (Tex.
Crim. App. 1968); Ocker v. State, 477 S.W.2d 288, 291
(Tex. Crim. App. 1972); Smith v. State, 479 S.W.2d 680,
681 (Tex. Crim. App. 1972); Bogany v. State, 661
S.W.2d at 959; Ex parte Spaulding, 687 S.W.2d 741
(Tex. Crim. App. 1985) (en banc).

Ex parte Spaulding is particularly instructive. In that
ease, the jury found the defendant guilty of aggravated
sexual abuse, and sentenced the defendant to serve fifty
years imprisonment and to pay a fine of $10,000. When
the defendant collaterally attacked the verdict because it
included, in addition to a term of imprisonment, a fine
unauthorized by law, the state sought to cure the error
by having the Governor of Texas remit the fine. The
Texas Court of Criminal Appeals rejected that suggestion
and vacated the entire verdict. In language that echoes
an opinion issued one hundred years earlier, the court
observed that the jury’s unauthorized sentence rendered
the entire verdict “void . . . absolutely null... [and]
of no legal force and effect whatever... .” Ex parte
Spaulding, 687 S.W.2d at 743 (citations omitted). As
the court held, “{s]uch judgment and sentence being void,
the error is incurable and any subsequent attempt at re-
mitting the fine portion of a void sentence is also void. . . .
Even the Governor, with his constitutional powers, may
not breathe new life into a ‘dead’ judgment.” 7d. |

This was the law in effect at the time of the offense,
trial, sentencing and direct appeal in the instant case.
This law remained in effect for nearly a full year after

14 See Wooldridge v. State, 13 Tex. Crim. App. at 457 (observing
that a verdict of guilt, absent a jury determination of valid punish-
ment, “would in fact be but a dead letter, a nullity to which nothing
could give force or vitality”).

8

Youngblood’s conviction and sentence had become final.
Effective June 11, 1985, Texas reversed its 129-year-old
practice, by expressly authorizing the courts for the first
time to reform erroneous jury verdicts by “omit/ting|”’
any portion of the punishment “not authorized by law
for the offense.” *

It is beyond dispute that the March 1982 verdict in the
Youngblood case included a penalty “not authorized by
law.” Similarly, there is no question that Texas law at
the time of that verdict mandated that the entire verdict
rendered against Youngblood—including the jury’s de-
termination of guilt and assessment of punishment—was
absolutely void, and that any attempt to revive the sen-
tence and cure its defects was similarly void as a matter
of law. See Ex parte Spaulding, 687 S.W.2d at 743;
Smith v. State, 479 S.W.2d at 681. Absent the 1985 leg-
islative amendment, Youngblood was entitled to an order
vacating the jury’s determination and prohibiting any
punishment pursuant to the void and invalid conviction."®

SUMMARY OF ARGUMENT

From the earliest days of the Republic, this Court has
construed the ex post facto clause of the United States
Constitution '* as prohibiting a wide array of retrospec-
tive statutes that have a substantial adverse impact on
criminal defendants. Far from restricting application of
the prohibition to only those statutes that fit neatly
within a narrow, mechanistic formula, the Court has con-
sistently taken an open-ended, pragmatic approach, pro-
hibiting legislation that, regardless of its form, retroac-
tively alters the substantial rights of criminal defend-
ants. The only exceptions have been statutes that are

15 Tex. Code Crim. Proc. Ann. art. 37.10(b) (Vernon Supp. 1990).

‘6 To be sure, no jeopardy would attach in such circumstances.
Thus, the state would retain the right to seek a retrial and punish-
ment before a different jury.

17 U.S. Const. Art. I, § 10, cl. 1.

9

purely procedural in both form and effect. They consist
of neutral statutes which alter the rules governing how
evidence is presented to the fact-finder, or the court re-
sponsible for hearing it, or involve similar changes that
are evenhanded as between the defendant and the state.

The court below correctly applied these longstanding
principles in finding that the ex post facto clause pro-
hibited application of a Texas law which (although “pro-
cedural” in form) operated to deprive the defendant ret-
roactively of his clear, statutory right to liberty. Applied
retroactively, the Texas statute validated a previously
void verdict, deprived the defendant of an absolute de-
fense to punishment, and permitted the state to fashion
and impose a sentence of life imprisonment that had been
expressly forbidden by the law in place at the time of
the defendant’s offense and trial. Contrary to petitioner’s
assertions, the unanimous decision of the court below is
entirely consistent with almost two hundred years of
precedent set by this Court and the lower courts.

Finally, petitioner urges this Court to turn the clock
back on two centuries of precedent, and to adopt, as a
definition of rights protected by the ex post facto clause,
an illustrative and historical list of abuses identified in
the dicta of one Justice in Calder v. Bull, 3 U.S. (3 Dall.)
386 (1798). Even if that approach is followed, the Texas
statute involved here would still fall, because it retro-
actively eliminated a defense to the imposition of pun-
ishment that existed in law at the time of the offense and
trial.

10
ARGUMENT

I. RETROACTIVE APPLICATION OF THE TEXAS
STATUTE AT ISSUE HERE VIOLATED THE EX
POST FACTO CLAUSE BECAUSE IT DEPRIVED
THE DEFENDANT OF THE “SUBSTANTIAL
RIGHT,” MANDATED BY THE LAW IN PLACE AT
THE TIME OF TRIAL, TO BE FREE FROM THE
VERDICT OF GUILT AND PUNISHMENT REN-
DERED AGAINST HIM.

The fundamental assertion of both petitioner and ami-
cus curiae the United States** is that the ex post facto
clause should be construed narrowly in accordance with
a “bright line” test. They claim that no retroactive penal
legislation, no matter how detrimental to the defendant,
violates the clause unless it does one of three things:
alters the definition of a crime, restricts the scope of a
defense, or increases the prescribed punishment." Peti-
tioner’s restrictive reading of the clause has no historical
support, and is fundamentally in error.

For nearly two centuries this Court has resisted adopt-
ing such a narrow, mechanistic approach to the ex post
facto protection. The Court has instead recognized that
the clause prohibits retroactive enforcement of a wide
array of legislative acts that adversely affect the defend-
ant. Many of the statutes struck down by this Court
and the lower courts have a substantial adverse im-
pact on the defendant, even though they take a “seem-
ingly procedural form.” Miller v. Florida, 482 U.S. 423,
433 (1987) (citation omitted). The Texas statute at
issue here is precisely of that nature, and accordingly,
cannot be applied retroactively.

18 The Brief of the United States as Amicus Curiae, filed January
25, 1990, will be referred to as “Brief of the United States.”

19 See Brief of the United Siates at 5; Petitioner’s Brief at 7.

11

A. From the Beginning of the Republic, This Court Has
Construed the Ex Post Facto Clause to Prohibit a
Wide Array of Retrospective Legislation Which Has
a Substantial Adverse Impact on the Defendant.

The command that a state shall pass no “ex post facto
Law” * is a core constitutional protection that restrains
the government from retroactively enforcing penal sanc-
tions. That protection was enshrined in the body of the
Constitution and has been recognized by this Court from
the earliest days of the Republic. In Calder v. Bull, the
first decision construing the clause, this Court recognized
two great principles that have informed ex post facto
jurisprudence in the next two centuries. First, the Court
noted that the core purpose of the ex post facto clause is
to restrain arbitrary and vindictive legislation: the clause
is a “bulwark in favor of the personal security of the
subject, to protect his person from punishment by legis-
lative acts, having a retrospective operation.” *' Second,
the Court recognized that there is no easy formula for
determining which specific legislative acts are prohibited.
As Justice Chase noted, the clause on its face provides no
guidance: it “necessarily requires some explanation; for,
naked and without explanation, it is unintelligible, and
means nothing.” Calder v. Bull, 3 U.S. at 389.

In an oft-quoted dictum, Justice Chase provided some
of the “explanation” by listing four examples of the kind
of legislative acts that would violate the clause if applied
retroactively.“ But those examples, which were based on

20 U.S. Const. Art. I, § 10, el. 1.

21 Calder v. Bull, 3 U.S. at 389 (opinton of Chase, J.). In separate
concurring opinions, Justices Paterson and Iredell likewise empha-
sized that the clause was aimed at preventing legislative abuses.
See id. at 396 (Paterson, J.) ; id. at 399-400 (Iredell, J.).

22 Although the entire discussion is illuminating, it is at bottom
but the dicta of a single Justice. The Court’s holding in Calder v.
Bull is only that the ex post facto clause does not reach civil legisla-
tion, but is confined instead exclusively to penal statutes.

12

specific acts of Parliament universally regarded as re-
pugnant,~ were never intended to exhaust the possibili-
ties.** In the sentence immediately following his list of
examples, Justice Chase noted that the clause bars other,
“similar laws” which, when applied retroactively, are
“manifestly unjust and oppressive” to the defendant. Ac-
cording to Justice Chase, “[e|very law that takes away
or impairs rights vested, agreeable to existing laws, is
retrospective, and is generally unjust .. .”; and with the
exception of statutes which “mollif{y] the rigor of the
criminal law,” retroactive penal legislation should gen-
erally be prohibited. Calder v. Bull, 3 U.S. at 390.%

23 Justice Chase observed that the prohibition against ex post
facto legislation arose, in large part, as a reaction to past excesses
of Parliament. Calder, 3 U.S. at 388. Early in the opinion, he
discussed several specific acts of Parliament that he viewed to be
particularly onerous and notorious, including: (1) the case of the
Earl of Strafford in 1641 (declaring an act to be a crime, which
was innocent when done); (2) the cases of Lord Clarendon in 1669
and the Bishop of Atterbury in 1723 (aggravating a crime by in-
flicting punishment where under prior law the party was not liable
for any punishment); (3) the Coventry Act of 1670 (inflicting
greater punishment than that permitted under the prior law); and
(4) the case of Sir John Fenwick in 1696 (altering the legal rules
of evidence to receive less evidence than the law required at the
time of the commission of the offence). Jd. at 388-89. These ex-
amples of parliamentary abuses are reflected in Justice Chase’s list
of legislative acts prohibited by the ex post facto clause. Jd. at 390.
But, far from serving as an exhaustive recitation of prohibited acts,
the list only insured that certain specific and widely known excesses
of Parliament would be included among those acts prohibited under
the constitutional prohibition.

24 As this Court observed in Kring v. Missouri, 107 U.S. 221, 228
(1883), “it is not to be supposed that the opinion in [Calder v. Bull)
undertook to define, by way of exclusion, ali the cases to which the
constitutional provision would be applicable.”

25 That same understanding of the clause’s breadth was reflected
in a contemporaneous decision of the federal circuit court, in which
Circuit Justice Washington noted that the clause prohibits retro-
active application of any law “which, in relation to the offence, or
its consequences, alters the situation of a party, to his disadvan-

13

Since Calder the Court has struggled to distinguish
permissible from prohibited retroactive legislation. Rather
than adopt a narrow, mechanistic formula, the Court has
repeatedly opted for a more open-ended, pragmatic ap-
proach.” That approach has been necessitated both by
the myriad of legislative enactments that are possible,
and by the fact that many oppressive and impermissible
statutes take a “seemingly procedural form.” Miller v.
Florida, 482 U.S. at 433. As Justice Stone long ago ob-
served for a unanimous Court: “Just what alterations of
procedure will be held to be of sufficient moment to trans-
gress the constitutional prohibition cannot be embraced
within a formula or stated in a general proposition. The
distinction is one of degree.” Beazell v. Ohio, 269 U.S.
163, 171 (1925).

Guidance in drawing that distinction is found in two
cases, decided by the same Court within one month of
each other, dealing with seemingly procedural changes,
and reaching opposite results. In both Thompson v. Mis-
sourt, 171 U.S. 380, 383-86 (May 31, 1898) and Thomp-
son v. Utah, 170 U.S. 343, 351-52 (April 25, 1898), the
Court recognized that no criminal defendant has the
right “to be tried in the exact mode, in all respects, that
may be prescribed for the trial of criminal cases at the
time of the commission of the offence. . . .”*" In both
cases the Court also observed that the ex post jacto clause

tage.” United States v. Hall, 26 F. Cas. 84 (D. Pa. 1809) (No.
15,285), aff'd, 10 U.S. (6 Cranch) 171 (1810).

26 See, e.g., Beazell v. Ohio, 269 U.S. 163, 170 (1925) (ex post facto
clause proscribes changes in procedure which “operate to deny to
the accused a defense available under the laws in force at the time
of the commission of his offense, or which otherwise affect him in
such a harsh and arbitrary manner as to fall within the constitu-
tional prohibition”). See also Kring v. Missouri, 107 U.S. at 228-
32; Mallett v. North Carolina, 181 U.S. 589, 594-95 (1901).

27 Thompson v. Missouri, 171 U.S. at 386; Thompson v. Utah, 170
U.S. at 351.

14

does not prohibit legislative “| r]emedies” which alter the
“mere modes of procedure” applicable at trial.**

At the same time, the Court endorsed a broad view of
the clause’s protection, holding that it prohibits retro-
active application of any law that “alters the situation of
the accused to his disadvantage,” or “materially impairs
his rights under the law existing at the time of the crime,
or “dispense[s] with any of those substantial protections
with which the existing law surrounds the person accused
of crime.” “? Thus, where the change in law did no more
than regulate “the mode in which the facts constituting
guilt may be placed before the jury,’ *” and did so in an
evenhanded manner, without “giv{ing] the prosecution
any right that was denied to the accused, *' retroactive
application of the statute was permitted. By contrast,
where the change in law benefitted only the prosecution
at the expense of the accused—by reducing the number
of jurors needed to convict—the same Court found that
retroactive application of such a statute violated the

clause.™

Consistent with this history, the Court in its most re-
cent ex post facto decisions has continued to take a flex-
ible approach. It has articulated a two-part test to de-
termine whether a law falls within the ex post facto pro-

28 Thompson v. Missouri, 171 U.S. at 386; Thompson v, Utah,
170 U.S. at 351.

29 Thompson v. Missouri, 171 U.S. at 386 (citations omitted) ;
Thompson v. Utah, 170 U.S. at 351-52 (citations omitted ).

30 Thompson v. Missouri, 171 U.S. at 386.

31 Jd. at 387.

32 Thompson v. Utah, 170 U.S. at 352-53. Moreover, the Court
observed that if the state were permitted retroactively to reduce
the number of jurors from 12 to 8, “it could just as well have
prescribed a jury of four or two, and, perhaps, have dispensed
altogether with a jury, and provided for a trial before a single

judge.” Jd. at 353.

15

hibition: “first, the law ‘must be retrospective, that is, it
must apply to events occurring before its enactment’; and
second, ‘it must disadvantage the offender affected by
it.’”” Miller v. Florida, 482 U.S. at 430 (quoting Weaver
v. Graham, 450 U.S. 24, 29 (1981) ). Shunning a rigid,
restrictive test, the Court reaffirmed the principle that
changes in procedure that materially impair the rights of
the accused violate the ex post facto clause. It noted that
while the distinction between substance and procedure
might sometimes “prove elusive,” a “change in the law
that alters a substantial right can be ex post facto ‘even
if the statute takes a seemingly procedural form.’” Jd.

at 433 (quoting Weaver v. Graham, 450 U.S. at 29
n.12).*

B. This Court and the Lower Courts Have Repeatedly
Held That New Laws of Criminal Procedure Can-
not Be Applied Retroactively If They Cause Sub-
stantial, Demonstrable Prejudice to the Defendant.

The decisions of this Court and the lower courts apply-
ing the ex post facto clause cover a spectrum ranging
from purely substantive to purely procedural laws. At
one end are those decisions barring retroactive applica-
tion of statutes that materially impair the rights of the
defendant either by criminalizing conduct that was in-
nocent when committed, or by increasing the penalty as-
cribed to criminal conduct.* These decisions rest on the
principle that it is manifestly unfair to punish those who
have had no fair warning of the consequences of their
actions at the time they were committed. Closely related,
though less egregious, are those statutes that retroac-
tively alter the range of permissible penalties, without in-
creasing the maximum. These statutes are harsh and op-
pressive, and hence prohibited, not because the defendant
lacked fair warning that he might receive the maximum

33 See also Dobbert v. Florida, 432 U.S. 282, 293 (1977).

34 See Weaver v. Graham, 450 U.S. 24 (1981): In re Medley, 134
U.S. 160 (1890).

16

sentence, but rather because the new law increases the
likelihood that the defendant in fact will receive that
penalty.»

At the other end of the spectrum are purely procedural
statutes which alter the fact-finding process, or the courts
where that process occurs, in ways that are evenhanded
and neutral vis-a-vis the defendant. Thus, consistent
with the principles discussed in Thompson v. Missouri,
the Court has upheld laws that retroactively changed
venue rules,** broadened the class of witnesses permitted
to testify on behalf of either party,’ reduced the number
of judges assigned to hear appeals,“ granted the gov-
ernment the right to appeal (and thereby correct) the
erroneous decision of an intermediate appellate court,”
and modified the procedures for administering the death
penalty to add constitutionally required protections for
the defendant.”

Between these extremes are a series of decisions bar-
ring retroactive application of laws that—like the one at
issue here—have a procedural form, but a substantive
impact. They include not only Thompson v. Utah, but
also this Court’s seminal decision barring the retroactive
abrogation of a state law rule treating conviction of a
lesser-included offense as acquittal of the greater offense.
Kring v. Missouri, 107 U.S. 221 (1883). More recently,
this Court held that a statute which retroactively ‘“fore-
closed [the defendant’s| right to challenge the imposition
of a sentence” by eliminating his prior right of appeal

35 See Lindsey v. Washington, 301 U.S. 397, 401-02 (1937). See
also Miller v. Florida, 482 U.S. at 432-33; Kring v. Missouri, 107
U.S. at 224.

36 Gut v. State, 76 U.S. 35 (1870).

37 Hopt v. Utah, 110 U.S. 574 (1884).

38 Duncan v. Missouri, 152 U.S. 377, 382-83 (1894) (dicta).
39 Mallett v. North Carolina, 181 U.S. at 597.

40 Dobbert v. Floriia, 432 U.S. at 296-97.

17

“substantially disadvantaged” the defendant in violation
of the clause.*!

Each of these statutes did far more than “simply
alter[] the methods employed” in the fact-finding process
to determine guilt or punishment.” None of them was
neutral or evenhanded as between the prosecution and
defendant; and they did not simply add another protec-
tive layer of review to improve the reliability and integ-
rity of the fact-finding process.** Rather, their entire
purpose and effect was to strip from the defendant a pro-
tection available at the time of the offense and thus alter
the balance to the advantage of the state.

Consistent with these principles, lower courts have also
repeatedly barred retrospective laws that, though seem-
ingly procedural, had a substantial adverse impact on
the defendant. These include laws which retroactively ex-
tend the statute of limitations for criminal offenses once
the original statutory period has lapsed; “ eliminate the

41 Miller v. Florida, 482 U.S. at 432. To be sure, the Florida ~
statute at issue in Miller “disadvantaged” the defendant in other
respects as well: it altered the “presumptive sentence range” ap-
plicable to the offense and relieved the trial judge of any responsi-
bility for “provid[ing] any reasons, convincing or otherwise,” for
imposing a sentence within the newly-prescribed range. Id. at 432-
33. At least one lower court, however, has suggested that the denial
of the defendant’s right of appeal, standing alone, would be suffi-
cient to violate the clause. See Rubino v. Lynaugh, 845 F.2d 1266,
1279 (5th Cir. 1988) (King, J., concurring). Cf. Ex parte Abahosh,
561 S.W.2d 202, 203 (Tex. Crim. App. 1978) (denial of defendant’s
automatic right of appeal violated state ex post facto clause).

#2 See Dobbert v. Florida, 432 U.S. at 293-94.

43 See, e.g., Dobbert, 432 U.S. at 293-94 (no ex post facto viola-
tion in allowing retroactive legislation that accords capital defend-
ant additional levels of sentencing review); Mallett v. North-Caro-
lina, 181 U.S. 589 (1901) (no ex post facto violation in allowing
government right to appeal erroneous ruling, thereby enhancing the
accuracy and reliability of appellate review).

44 See Moore v. State, 43 N.J.L. 203, 222-23 (1881); Sobiek v.
Superior Court, 28 Cal. App. 3d 846, 106 Cal. Rptr. 516, 518

18

requirement that prosecutions commence by grand jury
indictment, and instead, allow them to proceed by infor-
mation; * abolish the defendant’s right of appeal; ** or
shift to the defendant the burden of proving the defense
of insanity.”

In addition to these decisions, it is not hard to imagine
other “procedural” changes which are permissible if ap-
plied prospectively, but which the ex post facto clause
would foreclose if applied retroactively. These might in-
clude, for example, laws that abolish a state-created re-
quirement of conviction by a unanimous verdict in favor
of conviction by a simple majority; allow the state to
seek resentencing in capital cases in which the sentencing
jury has deadlocked over penalty, when the law in place
at the time of the offense mandated an automatic sen-
tence of life imprisonment under such circumstances; ™

(1972): State v. Edwards, 701 P.2d 508, 512 (Wash. 1985) (en
banc). Other courts have taken the same position, albeit in dicta.
See Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.), cert.
denied, 277 U.S. 590 (1928): United States ex rel. Massarella v.
Elrod, 682 F.2d 688, 689 (7th Cir. 1982), cert. denied, 460 U.S.
1037 (1983): Clements v. United States, 266 F.2d 397, 399 & n.4
(9th Cir.), cert. denied, 359 U.S. 985 (1959); United States v.
Fraidin, 63 F. Supp. 271, 279 (D. Md. 1945).

45 Mafnas v. Government of Guam, 228 F.2d 283, 286 (9th Cir.
1955).

46 Cf. Ex parte Abahosh, 561 S.W.2d at 203 (retroactive elimina-
tion of defendant’s automatic right to appeal conviction, adopted
between time defendant pled guilty to crime and was sentenced
by the court, violated Texas constitutional protection against ex post
facto laws). See also Camp v. State, 200 S.E. 126 (Ga. 1938) (elimi-
nation of the defendant’s prior right to have punishment adminis-
tered by jury, rather than by the court, violates clause); Hurt v.
State, 199 S.E. 801 (Ga. 1938) (same).

47 United States v. Kowal, 596 F. Supp. 375, 378-79 (D. Conn.
1984).

48 In many jurisdictions, a capital defendant is entitled to an
automatic sentence of life imprisonment if the sentencing jury is

19

or eliminate the defendant’s statutory right to a new
trial by replacing (shortly after the defendant’s convic-
tion) a statute mandating a new trial upon proof that
the prosecution destroyed exculpatory evidence for any

reason, with one which requires the defendant to prove
bad faith.

Each of these laws is intended to and does operate
solely to the detriment of the defendant. Each law rep-
resents a legislative judgment that the balance between
the prosecution and defendant should be altered to en-
hance the state’s opportunity to penalize unlawful con-
duct. That objective is constitutionally permissible, and
may even be laudable, when applied to future conduct.
But it is “harsh and arbitrary” ” when applied retro-
spectively to conduct that occurred prior to the legislative
enactment.

The arbitrary character of such legislation is meas-
urably heightened when the law is applied, as in this
case, not simply to events that occurred prior to enact-
ment, but to defendants who were tried and convicted
(albeit improperly) under the prior law.* A cornerstone

unable to reach a unanimous verdict. See, e.g., Va. Code § 19.2-
264.4(E) (1983). Assume a jury is unable to reach a unanimous
verdict on punishment, and is excused by the court, which then sets
sentencing for one month later. Between the time the jury is ex-
cused and the sentencing date, however, the legislature amends the
capital statute to permit the court to convene a second jury for.
resentencing—thus abolishing the defendant’s right under the ear-
lier statute to a sentence of life imprisonment upon return of a
split verdict. Under petitioner’s analysis of the ex post facto clause,
the state would be permitted to reconvene a new jury, and seek to
secure a death sentence when such sentence was prohibited under
prior law.

49 Beazell v. Ohio, 269 U.S. at 170.

50 Cf. Dobbert v. Florida, 432 U.S. at 301 (in rejecting defendant’s
equal protection challenge to Florida’s revised sentencing law, the
Court put some weight on the fact that the state “had to draw the
line at some point between those whose cases had progressed suffi-

20

of ex post facto jurisprudence from the beginning has
been the notion that the clause prohibits the retroactive
elimination of “vested rights” held by the defendant.”
Although the reason why that factor is significant has
never been fully explained, presumably it turns at least
in part on the notion that a vested right is demonstrable,
not conjectural; and the effect of its deprivation can be
determined without speculation. At a minimum, this
principle should mean that the defendant has a “vested
right” to have his case judged by the substantive features
of the law in place at the time of his offense, indictment,
trial and appeal; and that the state is foreclosed from
applying to his case a new, more onerous statutory
scheme—adopted long after the crime and conviction—
that deprives the defendant of a substantial protection
affordetl by the prior law. Yet that is precisely what
occurred here.

In sum, the ex post facto test applied by the courts for
nearly two centuries is far broader and more flexible
than the one petitioner advocates. In addition to being
retrospective, most ex post facto laws share two related
characteristics. First, they alter the balance solely to the
benefit of the state and against the defendant. Unlike
changes affecting the way the evidence may be presented
or the identity of the courts that receive and review it—
factors which may inure to the benefit of e‘ther side—
an ex post facto law is one-sided, not evenharded. Sec-
ond, ex post facto laws usually have a direct, substantial
impact on the ‘efendant, which can be demonstrated
without resort t« sneculation. Laws denying a defendant

ciently far in the legal process as to be governed solely by the old
statute . . . and those whose cases involved acts which could prop-
erly be subject to punishment under the new statute”).

51 See, e.g., Calder v. Bull, 3 U.S. at 390; Hopt v. Utah, 110 U.S.
at 590; Thompson v. Missouri, 171 U.S. at 385-86. Although the
Court has recently made clear that the clause also protects rights
that have not “vested,” see Weaver v. Graham, 450 U.S. at 29-30,
those rights that have “vested” are a fortiori protected.

21

repose after a statute of limitations period has lapsed, or
depriving a defendant of an absolute defense to punish-
ment, or stripping the defendant of a right of appeal,
will have a far greater, more tangible impact than
changes which alter the rules of evidence after the offense
but before the trial. For the same reason, fundamental
changes in the law enacted after the defendant’s trial
(but before a retrial) should be far more difficult to jus-
tify, since their effect on the defendant’s rights is clearly
measurable and beyond dispute.

C. The Revised Texas Statute Caused Substantial
Demonstrable Prejudice to Youngblood, Because It
Retroactively Deprived Him of His Right to Liberty
and the Presumption of Innocence.

The court below held that retroactive application of
Article 37.10(b) deprived Youngblood of a substantial
right, and thus violated the ex post facto clause. As the
court correctly noted, this right was anchored in Texas
law: “(I]t was the law of Texas that a verdict of the
type rendered in this case was void ab initio and its im-
position entitled the accused to a new trial. ... Prior
Texas law made it impossible to deprive defendants such
as Youngblood of their liberty without affording them a
new trial.” Youngblood v. Lynaugh, 882 F.2d 956, 960
(5th Cir.), cert. granted, 110 S. Ct. 560 (1989). More-
over, the retroactive change in the law did not merely
provide the appellate court with “an additional remedy
to correct an unauthorized verdict,” as the United States
now contends.” Rather, the change stripped the defend-
ant of his absolute, preexisting statutory right to an
order vacating the jury’s judgment of conviction and pro-
hibiting imposition of any punishment. That right was
plainly substantial not only because it carried with it the
possibility of a lesser punishment (or none at all) in the
event of a retrial; but even more significantly, it gave the

52 Brief of the United States at 15.

22

defendant his liberty.** The retroactive elimination of
that right should be impermissible under any circum-
stances. It was particularly egregious in this instance,
where it occurred long after the defendant had been
tried to a final (albeit erroneous) judgment under the
earlier law.

Contrary to petitioner’s contentions, the statutory
rights taken from Youngblood three years after trial and
sentencing were not a “quirk” or “fortuity with no basis
in law or logic.” As set forth above, it was the con-
sistent and unwavering judgment of the Texas legisla-
ture and judiciary for well over a century that the de-
fendant had an absolute right to an error-free jury ver-
dict on both guilt and punishment. That right was zeal-
ously enforced, with courts repeatedly invalidating the
entire product of jury deliberations whenever the jury
erred by assessing an unauthorized punishment. Al-
though petitioner appears to question the wisdom of that
policy, there is no doubt that it represented the con-
sidered judgment of the Texas legislature for over 125
years.

Petitioner and the United States are equally wrong
about the significance of these rights under federal law.

53 It is difficult to overstate the benefits to the defendant of the
statutory scheme in place at the time of Youngblood’s trial. Both
petitioner and even the Court of Appeals subtly minimize the signifi-
cance of these benefits by suggesting that they consist of the “ ‘right’
to an entire new trial.” Petitioner’s Brief at 12; Youngblood v.
Lymaugh, 882 F.2d at 960. In fact, it is the state, not the defend-
ant, which receives that right. The defendant receives the far more
precious right to have the entire verdict of guilt rendered void at
its inception. That determination necessarily entails the right to
receive the presumption of innocence, to the expunging of any
evidence of a conviction, and to absolute freedom from the imposi-
tion of punishment unless and until the state opts to exercise its
right of retrial and then succeeds in securing a valid verdict.

54 Petition for Writ of Certiorari at 13.

23

Taken together, their arguments rest on three funda-
mental errors.

First, they attack the validity of Thompson v. Utah,
upon which the court below expressly relied.™ It is true,
as the United States asserts, that the Thompson Court
believed that the Sixth Amendment mandated a jury of
twelve, and that subsequent decisions have rejected that
notion. But that fact in no way undermines the validity
of Thompson. The ex post facto clause would add nothing
to the Constitution if the only changes it proscribed were
ones that abolished other constitutional protections. In
fact, most. of the rights which this Court has found to be
protected by the ex post facto clause are statutory cre-

ations which the legislature is free to abolish—although
not retroactively.*

Petitioner’s attack on Thompson v. Utah is a critical
feature of its argument, because if Thompson survives,
the decision below must stand. If the defendant’s right
to the benefit of a twelve-person jury is “substantial,”
the right to automatic vacatur of a conviction and life
sentence is even more so. It is of crucial importance to
note, however, that the converse is not true. Even if the
Court were to overrule Thompson—a result that no party
has requested—the decision below should still be upheld.

Thompson stands at the far limits of those cases in-
volving procedural changes with a substantive impact.

5° See, e.g., Petitioner’s Brief at 22 (Thompson is of “question-
able precedential value”); Brief of the United States at 10
(Thompson arose out of “unusual circumstances” and “should not
be given broad application to modern ex post facto claims”).

56 See, e.g., Miller v. Florida, 482 U.S. at 424-25 (retroactive ap-
plication of revised sentencing guidelines); Weaver v. Graham,
450 U.S. at 30 & n.13 (retroactive abolition of statutory “gain
time”). Petitioner’s suggestion that the ex post facto clause only
prohibits retroactive alterations of other constitutional rights has
never been endorsed by any court, and was specifically rejected in
Rubino v. Lynaugh, 845 F.2d at 1272.

24

The Court in Thompson correctly perceived that the
larger a criminal jury, the greater the burden on the
prosecution of convincing every juror to convict beyond
a reasonable doubt. Arguably, however, the reduction in
jury size could be regarded as evenhanded, simply re-
quiring each side to convince an equal number of jurors.
Here, by contrast, the prosecution was given a new statu-
tory right that materially enhanced its position without
any corresponding benefit to the defendant. In the face
of a century of precedent to the contrary, the prosecution
was allowed to validate and reform an otherwise invalid
verdict, thereby depriving the defendant of the certainty
of automatic vacatur and liberty.

Second, in an argument not mentioned by petitioner,
the United States contends that Mallett v. North Caro-
lina, 181 U.S. 589 (1901), controls the instant case. In
Mallett, the petitioners had been convicted and sentenced
to imprisonment by a North Carolina trial court; they
appealed to the Superior Court, which reversed the con-
viction. At the time the defendants committed their of-
fenses, the state was precluded from appealing adverse
determinations of the Superior Court; but by the time the
defendants had perfected their appeal to the Superior
Court, that law had been changed to permit the state to
appeal judgments of the Superior Court to the state Su-
preme Court. The state exercised that right and appealed
from the judgment of the Superior Court. The North
Carolina Supreme Court reversed the Superior Court, and
remanded the case to the trial court with directions to
impose sentence. Jd. at 590. This Court held that this
change in the appellate process—established before the
defendants had perfected their initial appeal from the
verdict—was consistent with the ex post facto clause.

In seeking to analogize Mallett to the case at bar, the
United States suggests that in both instances, the prior
law gave the defendant “a windfall when certain types
of error occurred.” Brief of the United States at 17.
This argument has the facts exactly backwards. To be

25

sure, the defendants in Mallett were seeking a “wind-
fall”; the trial court in Mallett had rendered a valid ver-
dict, and the defendants wanted an order mandating that
the erroneous decision of the state’s intermediate appel-
late court, reversing that verdict, be frozen in place and
given the force of law. Here the reverse is true. No
one asserts or could assert that Yfunebiot' original
conviction was valid; it is uncontested that, under prior
law, such jury error mandated a new trial. Here it is
the state, not Youngblood, that seeks to obtain a wind-
fall by invoking a new law which allows it to do what
had earlier been expressly prohibited—enforce a convic-
tion that was otherwise void. Put differently, in Mallett
the defendant asserted that he was entitled to cbtain the
benefit of an erroneous judgment; in Youngblood, it is
the state which seeks to obtain the benefit (i.e., a con-
viction and sentence) from a judgment that was void as
a matter of law when rendered.**

57 Mallett is, in any event, distinguishable on other grounds.
Allowing the prosecution a right of appeal from an erroneous judg-
ment does no more than put both sides on an even plateau. In addi-
tion, the timing of the change in law seems to have played a crucial
role in the Court’s reasoning in Mallett. The Court was careful
to note that the change in procedure occurred after the defendants
had been convicted in the trial court, but before they had perfected
their appeal. Mallett, 181 U.S. at 597. In invoking the benefits and
opportunities of the appellate process, defendants may fairly be
required to accept all the rules integral to the process in place at
the time, including the rule allowing the prosecution the right to
appeal to the state’s highest court an erroneous determination in
favor of the defendant by the intermediate court.

58 Although petitioner and the United States both cite Dobbert
v. Florida, that case is plainly distinguishable as well. The defend-
ant in Dobbert committed his offense at a time when Florida had
in place a capital sentencing statute which was manifestly uncon-
stitutional and disadvantageous to defendants. By the time of
Dobbert’s trial, Florida had replaced its capital statute with one
that provided the defendant a full panoply of procedural protections.
Although Dobbert was sentenced to death under that statute, he
claimed that the result might have been different had his case been
judged under the old, draconian law. That argument stood the law

26

Finally, the United States asserts that policy concerns
should lead to a finding against the defendant. The Gov-
ernment conjectures that the prior law, affording the
defendant a new trial upon an unauthorized jury verdict,
gave the defendant a “dangerous disincentive to correct
trial error... .” Brief of the United States at 14 n.6. It
is of course the legislature; not the judiciary, which is
entrusted with responsibility for weighing such policies.
But even if it were otherwise, this metaphysical “danger”’
is slight when compared to the potential for abuse that
exists when the state is allowed retroactively to abolish
the rights of defendants upon the occurrence or discovery
of trial error. Under the ex post facto regime proposed
by the petitioner, the state would have an unqualified
incentive to delay correcting trial error (or even to con-
ceal such error) pending adoption of such legislation.*’

on its head: No defendant can properly claim a substantial right to
be sentenced under an unconstitutional statute. See Dobbert, 432
U.S. at 295. Moreover, since Dobbert had never been tried under the
old statute, his prediction about how the jury would have voted if
that law had been in place was rank L onyee Id. at 294.

By contrast, the statute in place at the time of Youngblood’s
offense, trial and conviction was unquestionably constitutional and
was designed to provide defendants with broad, “procedural” pro-
tections. Moreover, there is no need to speculate about the result if
Youngblood’s case were judged under that statute: his verdict of
guilt and sentence of life imprisonment would be absolutely void.
absolutely void.

59 That danger is by no means conjectural. Indeed, in Evans v.
Thompson, the state delayed conceding trial error for over two
years—confessing error only after the legislature had passed
emergency legislation permitting capital resentencing. 881 F.2d
at 119. See also State v. Norton, 675 P.2d 577, 591 (Utah 1983),
cer denied, 466 U.S. 942 (1984) (Stewart, J., concurring and dis-
senting) (state files seven successive motions for continuance to file
appellate brief, prolonging appeal for over one year, and thus
bringing case within new statute permitting, for first time, capital
resentencing).

27

Il. EVEN IF THE STANDARD URGED BY PETI-
TIONER AND THE UNITED STATES WERE
ADOPTED, THE DECISION BELOW WOULD STILL
BE CORRECT.

Petitioner and the United States urge the Court to
turn the clock back 175 years and adopt, as the definition
of all “substantial rights” protected by the ex post facto
clause, selected portions from the dicta of one Justice in
Calder v. Bull. In doing so, however, they acknowledge
that even under their proposed test the state violates the
ex post facto clause when it seeks retroactively to elimi-
nate any defense previously available to the defendant."
That is precisely what occurred here.

There cannot be any doubt that the ex post facto clause
rigidly proscribes any effort to impair an available de-
fense. This Court reiterated that principle in Dobbert
v. Florida stating that “any statute which . . . deprives
one charged with crime of any defense available accord-
ing to law at the time when the act was committed, is
prohibited as ex post facto.” Dobbert, 432 U.S. at 292
(citations omitted).

The seminal decision on this point is Kring v. Missouri,
107 U.S.-221 (1883). In Kring, the defendant, charged
with capital murder, pleaded guilty to second degree
murder. He appealed from his sentence, arguing that it
exceeded the terms set in the plea agreement. At the
time of Kring’s offense, the Missouri Constitution pro-
vided that a guilty plea to a lesser-included offense oper-
ated as an acquittal of the greater offense; by the time of
Kring’s plea, however, this state constitutional provision
had been repealed. Following the appeal, in which
Kring’s sentence and conviction for second degree murder
were vacated, Missouri retried Kring for the greater
offense—first degree murder. Kring was convicted of
that offense and sentenced to death.

6 See Petitioner’s Brief at 7; Brief of the United States at 7.

28

On appeal to this Court, Kring claimed that he was
entitled to the benefit of Missouri’s repealed law barring
prosecution for the greater offense, because that provision
had been in force at the time of the offense. Kring
claimed that the state had violated the ex post facto
clause when it denied him the benefit of the prior law and
subjected him again to the death penalty. The state
countered that the change in Missouri law was “simply

. a matter of procedure.” 107 U.S. at 224. This
Court, however, rejected that argument, observing that
“it is obvious that a law which is one of procedure may
be obnoxious as an ex post facto law... .” Id. at 232.
The Court noted that retroactive application of Missouri’s
law to Kring, which meant “the difference between life
and death,” id. at 224, violated the clause because it de-
prived him of an absolute defense to being re-exposed to
the death penalty. See id. at 229, 234."

Although there are few decisions construing this aspect
of the ex post facto clause, all of them support respond-
ent’s position. As already noted, courts have uniformly
prohibited retroactive extensions of statutes of limita-
tions once the original period specified has lapsed. See dis-
cussion at page 17 & n.44, above. To do otherwise would
deny the defendant a defense otherwise available to the
imposition of punishment. An analogous situation arose
in State v. Keith, 63 N.C. 140 (1869), where an act of

®1 The United States does not question the validity of Kring and
agrees that it stands for the proposition that the er post facto
clause prohibits the “retrospective removal of defenses.” Brief of
the United States at 11 n.5. Petitioner’s attempt to find a “decisive
distinction” between Kring and this case is based on a misreading
of Kving’s facts. Contrary to petitioner’s assertion (Brief at 22),
‘the Missouri constitutional provision invoked by Kring had been
repealed four years before Kring’s plea. 107 U.S. at 222-24; id. at
236 (Matthews, J., dissenting). Moreover, although petitioner as-
serts that Kring’s validity is “questionable” (Brief at 21), this
Court has recently cited its ex post facto principle with approval.
See Weaver v. Graham, 450 U.S. at 29.

62 Cited with approval in Kring, 107 U.S. at 231.

29

amnesty was passed after the defendant had committed
his crime. Before the defendant was prosecuted, how-
ever, the amnesty act was repealed, and prosecution was
instituted. The Supreme Court of North Carolina found
application of the ordinance repealing the amnesty act to
be “substantially an ex post facto law,” since it “took
away from the prisoner his vested right to immunity.”
State v. Keith, 63 N.C. at 153-54.

Retroactive application of Article 37.10(b) deprived
Youngblood of an absolute defense to imposition of pun-
ishment arising out of a void, and entirely invalid ver-
dict. Indeed, prior to passage of the statute at issue, any
attempt to impose punishment based upon the invalid
verdict, or to modify the defective judgment, was simi-
larly void as a matter of law. Ex parte Spaulding, 687
S.W.2d at 743.“ Where, as here, the defendant becomes,
in essence, “dispunishable” under application of prior
law, retroactive deprivation of such a defense to punish-

63 Petitioner suggests that since Youngblood was apprised of the
criminal sanctions to which he exposed himself by his actions, such
“fair warning” precludes any ex post facto challenges to the statute
in question. See Petitioner’s Brief at 13-14. Although this Court
has recognized that a principal purpose of the ex post facto clause
is to provide the defendant with “fair notice.” fair notice is not
the touchstone of all ex post facto jurisprudence. For instance, in
the statute of limitations cases discussed at page 17 & n.44, above.
the accused were “‘on notice” of the criminal sanctions to which they
exposed themselves by virtue of their actions. Nonetheless, without
exception, the courts have disallowed prosecutions undertaken pur-
suant to extended statutes enacted after the original limitations
period had lapsed—even though the defendant had “fair warning”
from the outset of the penalty associated with the crime. Similarly.
this Court found an er post facto violation in Kring, even though
the offense he committed always carried the possibility of a death
sentence. Indeed, in an earlier proceeding, before he pled guilty to
second degree murder, Kring had actually been sentenced to hang
for the offense. See Kring v. Missouri, 107 U.S. at 221-22: id. at
236 (Matthews, J., dissenting).

*4 See Moore v. State, 43 N.J.L. at 221.

30

ment clearly satisfies the standards articulated in Calder
v. Bull and proposed by petitioner.”
CONCLUSION

The judgment of the Court of Appeals should be
affirmed.

A

Respectfully submitted,

ARTHUR F. MATHEWS *

THOMAS F.. CONNELL

MARK D. CAHN
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000

Counsel for Amicus Curiae

February 26, 1990 * Counsel of Record

®} Such a defense to imposition of punishment is, of course, even
more persuasive where application of the original statute would not
simply have vacated the verdict, as in this case, but would also have
dictated the final result. Such is the case in Evans v. Thompson,
where the original statute would have prohibited Virginia from
resentencing Evans to death, and required imposition of an auto-
matic sentence of life imprisonment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0690%3A7. Public record. Not legal advice.