Amicus Curiae Brief — Collins v. Youngblood

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 4

for the Fifth Circuit 5.

BRIEF OF WILBERT LEE EVANS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Sie WS _

ss

ARTHUR F.. MATHEWS *

THOMAS F.. CONNELL

MARK D. CAHN

WILMER, CUTLER & PICKERING

2445 M Street, N.W. "4

Washington, D.C. 20087-1420 a

(202) 663-6000 es .

Counsel for Amicus Curiae yi

February 26, 1990 * Counsel of Record

- ~~ a ow = — =

eb *

? lye “Ses ’

: ar Ne ; ae cw. tet

ara ——— oe ; ' eS ae y

* ie ets Stra ; rsh, SJ & , »

rv

>

£)

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

ED CUED crecccresercscocssserecssersensasecenssesers

po

CC EEE

SUMMARY OF ARGUMENT ..............

EEE 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...

B. 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

C. 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

(iii)

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 .........W. 27

EERE RRR err epee eee eae aan a nN 30

v

TABLE OF AUTHORITIES

CASES Page

Beazell v. Ohio, 269 U.S. 163 (1925) —.....00... 13, 19

Bogany v. State, 661 S.W.2d 957 (Tex. Crim. App.

ET 6,7

Buster v. State, 42 Tex. 315 (1875) ~.........0000000.. 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, 432 S.W.2d 955 (Tex. Crim. App.

I chisetinniteitaneitcaie Rh iacaacrtee cites 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.

Sa, I cichintetetetiicindiaiiainiaaiguahciesincinianschialdadituatiainimaastini 17, 18

Ex parte Spaulding, 687 S.W.2d 741 (Tex. Crim.

Te ey ED ccceerittiicitncennsinetiiinninsedinntaiids 7, 8,29

Falter v. United States, 23 F.2d 420 (2d Cir.),

cert. denied, 277 U.S. 590 (1928) ........................ 18

Gut v. State, 76 U.S. 35 (1870) —...0000000 16

Hopt v. Utah, 110 U.S. 574 (1884) —.....0 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

A sl 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. 2038 (1881) ..........0.0000... 17, 29

Ocker v. State, 477 S.W.2d 288 (Tex. Crim. App.

SED saatinaicnesestsnnteiathiieaticlielacetdiitbaneintiaiiaiaieaessbidbiuiamaiiaitidaias 7

vi

TABLE OF AUTHORITIES—Continued

Page

Patterson v. Commonwealth, 222 Va. 653, 283

S.E.2d 212 (1981) 2

Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir.

1988) nee a a ee 17, 23

Shackelford v. State, 27 7 S. WwW 2d 695 (Tex. Crim.

ES i 5

Smith v. State, 479 S.W.2d 680 (Tex. Cc rim. App.

rrr eer er roe rE 7,8

Sobick v. Superior Court, 28 Cal. ‘App. 3d 846,

106 Cal. Rptr. 516 (1972) . 17

State v. Edwards, 701 P.2d 508 (Wash. 1985) (en

banc) .......... aalasieabehasnincanietdiedhis 18

State v. Keith, 63 NC. “140 (1869) : 28, 29

State v. Norton, 675 P.2d 577 (Utah 1983), cert.

denied, 466 U.S. 942 (1984) _...........0.-.0 ee... 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), orrid. 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

eGR RES SES Pre 55: -N et See 18

United States v. Fraidin, 63 F. ‘Supp. 271 (D. Md.

1945) . ES TEN SS OR TE re 18

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

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

i tachnreei ieee cater tha iaaeet iatlaitaianariie 13

United States v. Kowal, 596 F. Supp. 375 (D.

I 18

Weaver v. Graham, 450 U.S. 24 (1981)... passim

Wilkes v. State, 237 S.W.2d 991 (Tex. Crim. App.

RE GDC Nee a 5

Wooldridge v. State, 13 Tex. Crim. 443 (1883) .. _ 4,7

Youngblood v. Lynaugh, 882 F.2d 956 (5th Cir.),

cert. granted, 110 S. Ct. 560 (1989) _....0. 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)

ll EEL re

Tex. Code Crim. Proc. Ann. art. 37. 07(3) (c)

(Vernon 1981 & Supp. 1990) i”

Tex. Code Crim. Proc. Ann. art. 37. 10(b) (Vernon

Supp. 1990) —..... A EEE ER LA ee eee es AO

Tex. Code Crim. Proc. Ann. art. 44.24(b) (Vernon

1979) aaa

Tex. Code Crim. Proc. Ann. art. 44. 29(a) (Vernon

BN iid eeeerniensdninahianahindeiedimnnenl

a f " € 85) % & Sew

Va. Code § 19.2-264.4(E) (1983) ........................... ae

Pa

aaa ®

IN THE

Supreme Court of the United States

OcTroBER TERM, 1989

No, %9-742

—— ee

JAMES A. COLLINS, Director,

Texas Department of Corrections,

7 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 to 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. pending, No. 89-516 (filed Sept. 27, 1989).?

A full year after Evans’ conviction and death sentence

had become final, Virginia 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 legislatior authorizing for the first time capital resen-

tencing; (3) whether Evans was denied the effective assistance of

counsel during the « ourse 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 fact state law mandated that it would.

* 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.

® 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, e.g., Ellison v. State, 432 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.” /d.

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).

16To 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.”

1% 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

2° 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

Ear! 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.

2 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 facto 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.

2° Thompson v. Missouri, 171 U.S. at 386 (citations omitted ) ;

Thompson v. Utah, 170 U.S. at 351-52 (citations omitted ).

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

*1 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.” /d. 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 procedy;e 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, 422 U.S. 282, 293 (1977).

*4 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. Florida, 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

‘1 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. Jd. 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.

*3 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).

48In 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 either side—

an ex post facto law is one-sided, not evenhanded. Sec-

ond, ex post facto laws usually have a direct, substantial

impact on the defendant, which can be demonstrated

without resort to speculation. 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.

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.

® 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’’).

7 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 Yfunbiot' original

conviction was valid; it is uncontestel 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.c., a con-

viction and sentence) from a judgment that was void as

a matter of law when rendered.™

5? 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 so. 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 iwo

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),

cert. 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 ea 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.

® 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

. . & 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

*! The United States does not question the validity of Kring and

agrees that it stands for the proposition that the ex 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 Kring’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

226 ‘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-

*3 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.