Amicus Curiae Brief — Booth v. Maryland
Supreme Court brief1987
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No. 86-5020
In THE
Supreme Court of the United
Octroner Term, 1986
LT
Joun Boorn,
Petitioner,
Vv.
State or MARYLAND,
Respondent.
ON WRIT OF CERTIORARI TO THE COURT
OF APPEALS OF MARYLAND
————=-— | $|[_[—[—[—[—[—[SB]9h9]2—RnBnDBa@amaa@aa]l=S@™TlYaAa“—¥—"X—"—a
BRIEF OF AMICUS CURIAE NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC,
IN SUPPORT OF PETITIONER
—=——[—[—[—_—_ — — —— —— ———EESSaa"@NNEananS======>
Juuivs L. CHampers
James M. Nasri, LI
Joun Cuaries Bocer
Vivian Beroer*
99 Hudson Street
New York, New York 10013
(212) 219-1900
Axtnoxy G. AMSTERDAM
New York University
School of Law
40 Washington Square South
New York, New York 10012
(212) 598-2638
Attorneys for the NAACP Legal
Defense and Educational
Fund, Inc.
*Counsel of Record
a j
QUESTIONS PRESENTED
1. Does the admission at a penalty
trial of so-called victim impact evidence
-- which is by nature inflammatory,
irrelevant to any legitimate capital
sentencing purpose, and conducive to death
sentences imposed on the basis of race,
social class, and other impermissible
factors -- violate the Eighth and
Fourteenth Amendments?
2. Did the introduction at
petitioner's sentencing of a "Victim Impact
Statement,” as mandated under Maryland law,
violate this petitioner's rights under the
Eighth and Fourteenth Amendments?
TABLE OF CONTENTS
Questions Presented .......6ss8e6
Table of Authorities ........6666.
The Use of "Victim
Impact” Evidence at the
Penalty Phase of a
Capital Trial, As Man-
dated Under Maryland
Law, Injects Irrational,
Arbitrary and Imper-
missible Considerations
into the Life-or-Death
Decision, and Is
Unconstitutional ........
*
1. Much of the Matter
Reguired by Maryland
Law to Be Included
in Victim Impact
Statements Bears No
Conceivable Rela-
tionship to the
Legitimate Ends of
Capital Sentencing ..
2. By Defiecting the
Jury From Its Proper
Task of Objectively
Considering the Par-
ticularized Circunm-
stances of the
Individual Offender
ii
and Crime, Introduc-
tion of Victim Impact
Statements at the
Penalty Phase En-
courages Arbitrary
Sentences of Death .. 22
3. Admission of Victim
Impact Evidence Would
Necessitate Admission
of Expansive Proof
of a Similar Type,
Offered On Behalf of
Defendants .......... 31
4. Victim Impact State-
ments Invite the Jury
to Impose Sentences
of Death for Consti-
tutionally Impermis-
sible Reasons ....... 36
II. The Admission at Peti-
tioner's Penalty Trial
of a Long, Irrelevant,
Inflammatory Victim
Impact Statement Vio-
lated Petitioner's
Rights Under the Eighth
and Fourteenth Amendments 40
ee ee ee ce eeees 46
iii
TABLE OF AUTHORITIES
Cases Page
Adams v. Texas, 448 U.S. 38
(329GO) cccccedsececcors —eahwe oe ee 2
Barefoot v. Estelle, 463 U.S. 880
£GGGS) cecenanesesseesescedudgees 2
Booth v. State, 306 Md. 172,
507 A.2da 1098 (1986) ..... 13 n.7,34,37,38
n.18,41 n.20,45
Brooks v. Kemp, 762 F.2d 1383
(11th Cir. 1985) (en banc),
vacated, U.S.
92 L.Ed. 2d 732 (1986) peceeeces 38,39
Caldwell v. Mississippi, U.S.
___, 86 L.Ed. 2d 231 (1985) ..... 5
California v. Ramos, 463 U.S. 992
(G68). coecnseenteees cooe® NeB-3G,16,17.,.89
Chambers v. Mississippi,
410 U.S. 284 (1973) 2... ee eeeees 32
Coker v. Georgia, 433 U.S. 584
(2977) ~ccccses cececcccoeceeecces 22
Coppola v. Commonwealth,
220 Va. 243, 257 S.E. 2d 797
(1979), cert. denied, 444 U.S.
1103 (1980) ...... Ses eceesece 35 n.17
Eddings v. Oklahoma,
455 U.S. 104 (1962) ...ccccevees 21
Enmund v. Florida,
458 U.S. 782 (1982) .......-. 2,1£,16,21,22
“Estelle v. Smith,
451 U.S. 465464 (1981) wccccccccccs 2
iv
be ete
tlie ttl A tt a Seal I te i
Evans v. State, 422 So. 2d 737
(Miss. 1982), cert. denied, 461
Fe | aerrerrvarTrriirre 20
Fisher v. State, 482 So. 2d 203
ih. wn deeee seed éeeeseeeoes 29
Furman v. Georgia, 408 U.S. 238
). ., ere SS weer TT eee eee 2,4,21,24,36
Fuselier v. State, 468 So. 2d 45
(Miss. | Perry TrrTuertrrrrier 26 n.13
Gardner v. Florida,
430 U.S. 349 (1977) ....22 n.12,23,27,30,
33 n.16
Godfrey v. Georgia,
446 U.S. 420 (1960) cc cscccces 22,23
Grant v. State, 703 P.2d 943
(Okla. Crim. App. 1985) ........ 29,30
Green v. Georgia, 442 U.S. 95
CASTOR) ccccedccdcecececccevccses 32
Gregg v. Georgia,
428 U.S. 153 (1976) ..2,4,15,17.n.8,23,24
Henderson v. State, 234 Ga. 827,
S38 O.Be BS GES CSSTOD cccccecces 28,29
Ice v. Commonwealth, 667 S.W. 2d
671 (Ky.), cert. denied,
2s ee ee ee 26
Lockett v. Ohio,
438 U.S. 586 (1978) ..... 16,27-28 n.14,30
Lodowski v. State, 302 Md. 691,
490 A.2d 1228 (1985), vacated,
_ 9.8. ,. 68 &.86.386 Tii
TROP ceeeces § n.1,9&.n.4,13-14.& n.7,18,
19,24,25,42 n.21
Moore v. Zant, 722 F.2d 640
(11th Cir. 1983), reh'g
en banc granted, 738 F.2d 1126
(1ith Cir. 1984) .11,14,19&.n.9,20& n.10,
35 n.17,36,38 n.19,39
Muckle v. State, 233 Ga. 337,
211 S.E.2d 361 (1974) .......-. 11 a.§S
People v. Bartall, 98 Ill. 2d 294,
456 N.E. 2d 59 (1983) ....-524es 29
People v. Brown, 40 Cal. 3d 512,
709 P. 2d 440, 220 Cal. Rptr.
637 (1985), cert. granted,
U.S. __, 90 L.Ed. 2d 717
(1986) wc cece cece eee eeeveces ..27-28& n.14
People v. Easley, 34 Cal. 3d 858,
(19BS) ccccccccccccesesscesesece 27 n.14
People v. Free, 94 Ill. 2d 378,
447 N.E.2d 218, cert. denied,
464 U.S. 865 (1983) .11 n.5,18,25-26 n.13
People v. Holman, 103 I11.2d 133,
469 N.W.2d 119 (1984), cert.
denied, 469 U.S. 1220 (1985) .18,19,26,39
People v. Lanphear, 36 Cal.3d 163,
680 P.2d 1081, 203 Cal. Rptr.
122 (1984) wc cccccesccccnvvveres 27 n.14
People v. Levitt, 156 Cal. App.
3d 500, 203 Cal. Rptr. 276
(1984) ...11 n.5,17,18,20 n.10,28,30 n.15
People v. Love, 53 Cal.2d 843, 350
P.2d 705, 3 Cal.Rptr. 665
(1960) .ccccccccsecsccvscece 21 n.11,23,24
People v. Ramirez, 98 I11.2d 439,
457 N.E. 2d 31 (1983) ...-eeeees 25 n.13
vi
.
Skipper v. South Carolina,
U.S. , 90 L.Ed. 2d 1
SSUES) coscces 27 n.14,32-33& n.16,35 n.17
State v. Gaskins, 284 S.C. 105,
326 $.B. 24 132 (1966) ..cccccse 35 n.17
State v. Reeves, 216 Neb. 206,
344 N.W. 2d 433 (1984) ....-.... 10 n.4
State v. Rushing, 464 So.2d 268
(La. 1985), cert. denied,
_.. U.S. , O E.B8. 86 709
CBOSS) ccvcececscsesesbccvececs 44-45 n.22
State v. Sprake, 637 S.W.2d 724
(Mo. Ct. App. 1982) .......eee0- 29
State v. Williams, 217 Neb. 539,
352 N.W.2d 538 (1984) .......4.. 9-10 & n.4
Tobler v. State, 688 P.2d 350
(Okla. Crim. App. 1984) ........ 14,26
Turner v. Murray, U.S. ,
90 L.Ed. 2d 27 (1986) ...... 5§,6.n.2,30,39
Vela v. Estelle, 708 F.2d. 954
(5th Cir. 1983), cert. denied,
464 U.S. 1053 (1984) .....2eeees 26,27
Welty v. State, 402 So.2d 1159,
EPSOM. BOGE) cocceccvesessercscess 29
Wiley v. State, 484 So.2d 339
CHESOD. 19BG) cccccccccsccccceces 26
Witherspoon v. Illinois,
391 U.S. 510 (1966) ..ccccccecves 2
Woodson v. North Carolina,
~*~ ee 8). | 4,6 n.2,15
vii
Zant v. Stephens, 462 U.S. 862
(1983) ..... coccvesseoecesoacdett 88 eee
Statutes
Fed. R. Crim. P. 32(C) ..ceeeeeees 6 n.2
Fed. R. Evid. 404(a@) ...-eceeeeees 19 n.9
L.S.A. Code Crim Pro.,
art. 875 (A), {B) (Supp. 1986) . 9n.4
Md. Code, art. 27, section 413(c)
(iv)(Cum. Supp. 1984).....+-+66-. 42& n.21
Md. Code, art. 41,
section 124 (Cum. Supp. 1984) ..7-8& n.3,
9 n.4,10,11,18
Md. Rule 4-343(dG) ...ceeeeeeeccces 34
Neb. Rev. Stat. section 29-2261
(1985) *eeneeee# ese @# *eeesescoeseee#efe#Ffnfjre#e# * -e 9n.4
0.C.G.S. sections 17-10-1.1,
17-10-1.2 (Supp. 1986) .......-. 9n.4
Okla. Stat. Ann. tit. 22,
section 982 (1986) ......+465. sees 9n.4
Public Law No. 97-291,
96 Stat. 1248 (1982) .....-eeees 6 n.2
S.C. Code Ann. section 16-3-1550(A)
(1988) cc cccccccccesescvscessess 9n.4
Other Authorities
Henderson, The Wrongs of Victim's
Rights, 37 Stan. L. Rev. 937
(1985) ...ceeceees pecesoucne -6 n.2,10 n.¢
No. 86-5020
- — — ~-—
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986
-_——_— ---- a ---— —-
JOHN BOOTH,
Petitioner,
ow,
STATE OF MARYLAND,
Respondent.
ON WRIT OF CERTIORARI TO THE |
COURT OF APPEALS OF MARYLAND
BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
IN SUPPORT OF PETITIONER
STATEMENT OF INTEREST OF AMICUS CURIAE
The NAACP Legal Defense and Educational
Fund, Inc., is a non-profit corporation
established to assist black citizens in
securing their constitutional rights. In
1967, it undertook to represent indigent
death-sentenced prisoners for whom adequate
representation could not otherwise be
found. It has frequently represented such
prisoners before this Court. E.g., Furman
v. Georgia, 498 U.S. 238 (1972); Estelle v.
Smith, 451 U.S. 454 (1981); Enmund v.
Florida, 458 U.S. 782 (1982). The Fund has
also appeared before this Court as amicus
curiae in capital cases. E.g., Witherspoon
v. Illinois, 391 U.S. 510 (1968); Gregg v.
Georgia, 428 U.S. 153 (1976); Adams v.
Texas, 448 U.S. 38 (1980); Barefoot v.
Estelle, 463 U.S. 880 (1983).
The Legal Defense Fund currently
represents a substantial number of indigent
condemned prisoners in states in the Fourth
Circuit and elsewhere, whose cases are at
various stages following affirmance of
conviction and sentence by the state
appellate courts. The Fund is also often
called on, and tries to the extent of its
capacities, to provide consultative
assistance to attorneys representing other
capital defendants across the nation.
The issues presented by this case are of
utmost concern to death-sentenced prisoners
throughout the country, including many
represented by the Fund. Both petitioner
and respondent have consented to the filing
of this amicus curiae brief.
SUMMARY OF ARGUMENT
I. The admission of victim impact
evidence at penalty trials violates the
Eighth and Fourteenth Amendment rights of
defendants on trial for their lives ona
number of grounds. For one thing, its use
advances no legitimate goal of capital
sentencing. Further, because it is so
inflammatory, it deflects the jurors from
rational consideration of the life-or-death
decision. Toleration of this evidence
would, moreover, compel admission of wide-
ranging proof of a similar nature offered
by defendants, and thereby threaten the
entire structure of death-sentencing
jurisprudence the Court has erected.
Finally, victim impact evidence encourages
jurors to base determinations of death on
invidious, impermissible factors such as
race and social class.
II. In this case, the "Victim Impact
Statement" admitted at the penalty trial
was so ine leunetery and irrelevant as
clearly to violate petitioner's rights
under the Eighth and Fourteenth Amendments.
ARGUMENT
I.
THE USE OF “VICTIM IMPACT" EVIDENCE AT
THE PENALTY PHASE OF A CAPITAL TRIAL,
AS MANDATED UNDER MARYLAND LAW, INJECTS
IRRATIONAL, ARBITRARY AND IMPERMISSIBLE
CONSIDERATIONS INTO THE LIFE-OR-DEATH
DECISION, AND IS UNCONSTITUTIONAL.
Both in ushering out the old era
of capital punishment, Furman v. Georgia,
408 U.S. 238 (1972), and in inaugurating
the new, see, e.g., Gregg v. Georgia, 426
U.S. 153 (1976); Woodson v. North Carolina,
428 U.S. 280 (1976), the Court announced a
strong commitment to eradicating arbitrary
and invidious influences on death-penalty
determinations. That commitment persists
unabated. As recently as last Term's
decision in Turner v. Murray, U.S... 90
L.Ed.2d 27 (1986), the Court reaffirmed its
obligation to strike down death sentences
imposed under circumstances that "'created
an unacceptable risk'” of arbitrariness,
caprice or mistake. Id. at 36, quoting
Caldwell v. Mississippi, _. U.S. _ , 86
L.Ed.2d 231, 248-49 (1985)(O'Connor, J.,
concurring in part and concurring in the
judgment).
So-called victim impact evidence,
which in capital penalty proceedings mainly
deals with effects of the crime on the
victim's family!, offends this principle
Lal
,eodoweks_v.__State. 302 Md. 691, 760-
61, 490 A.2d 1228, 1263 (1985) (Cole, J.,
concurring),
vacated on other grounds, _
U.S. _, 89 L.Ed. 2d 711 (19866). More
detailed discussions of such evidence
appear at pp. 40-45, infra.
5
for four interrelated reasons .2 First, such
evidence intrudes into the penalty decision
considerations that have no rational
bearing on any legitimate aim of capital
sentencing. Second, this proof is highly
emotional and inflammatory, subverting the
reasoned and objective inquiry which this
Court has required to guide and regularize
the choice between death and lesser
punishments. Third, victim impact evidence
cannot conceivably be received without
opening the door to proof of a similar
ee
-————_
2The Court need not now determine the
appropriate role, if any, of the victim or
the victim's family at various stages of
ordinary trials. See generally Henderson,
The Wrongs of Victim's Rights, 37 Stan.
L.Rev. 937 (1985); see, e.g., Pub. L. No.
97-291, 96 Stat. 1248 (19862)(amending Fed.
R. Crim. P. 32(c)(2)). For, as the Court
has often recognized: nals -»» (T)he
qualitative difference of death from all
other punishments requires 4
correspondingly greater degree of scrutiny
of the capital sentencing determination.'”"
Turner, _U.S. at _., 90 L.Ed.2d at 36,
quoting 463 U.S. 992,
998-99 (1983).
Carolina, 428 U.S. at 303-05 (opinion of
Stewart, Powell and Stevens, JJ.).
nature in rebuttal or in mitigation,
further upsetting the delicate balance that
the Court has painstakingly achieved in
this area. Fourth, the evidence invites
the jury to impose death sentences on the
basis of race, class, and other clearly
impermissible grounds.
1. Much of the Matter Required by
Maryland Law to Be Included in Victim
Impact Statements Bears No Conceivable
Relationship to the Legitimate Ends of
Capital Sentencing.
Article 41, section 124 of the Maryland
Code, set out in pertinent part in the
margin,® provides for a Victim Impact
3section 124(c)(3), (4) and (da) read
as follows (emphasis added):
CSd ccs \
(3) A victim impact statement
shall:
(1) Identify the victim of the
offense;
(ii) Itemize any economic loss
suffered by the victim as a
result of the offense;
(iii) Identify any physical
injury suffered by the victim as
@ result of the offense along
7
Statement ("VIS") to be encompassed in the
presentence investigation. Originally
enacted in 1982, the law did not apply at
first to felonies that resulted in death.
with its seriousness and
permanence;
(iv) Describe any change in the
victim's personal welfare or
familial relationships as a
result of the offense;
(v) Identify any request for
psychological services initiated
by the victim or the victim's
as a result of the
offense; and
(vi) Contain any other information
related to the impact of the offense
upon the victim or the victim's family
that the court requires.
(4) If the victim is deceased,
under a mental, physical, or legal
disability, or otherwise unable to
provide the information required
under this section, the
proceeding is
Article 27, §413.
See Lodowski v. State, 302 Md. at 736-37 &
n.4, 490 A.2d at 1251-52; id., 302 Md. at
760-63 & n.4, 490 A.2d at 1263-65 &n.4
(Cole, Joe concurring) (discussing
legislative history). The next year, the
statute was amended, in haste and
apparently without much thought, to require
preparation . and consideration by the
sentencing body of a VIS in any case where
the death penalty is requested (but not in
other murder prosecutions). 4
4about 30 states have recently passed
statutes authorizing victim input, in the
form of statements or otherwise, in
sentencing proceedings. Lodowski v. State,
302 Md. at 754-55 & n.3, 490 A.2d at 1260
n.3 (Cole, J. concurring) (iisting
statutes). Most of these jurisdictions
have also enacted capital punishment
provisions. A number of states with both
victim impact and death-penalty legislation
expressly exclude capital sentencing from
the ambit of the former statutes. See,
e.g., L.S.A. Code Crim. Pro., art.
875(A),(B)(1984)(La.); 0.C.G.S. sections
17-10-1.1, 17-10-1.2 (Supp. 1986) (Ga.);
Okla. Stat. Ann. tit. 22, section
982(1986);: $.C. Code Ann. section 16-3-
1550(A) (1985); but see Md. Code, art. 41,
section 124 (Cum Supp. 1984); Neb. Rev.
Stat. section 29-2261 (1985); State vy.
Williams, 217 Neb. 539, 541-42, 352 N.W.2d
9
Section 124 now calls for a VIS
describing specific harms to the victim:
economic, physical and emotional. The
statute also expressly mandates inclusion
in the statement of certain information
regarding the family. For instance, the
VIS must "[dleecribe any change in the
victim's personal welfare or familial
elationships" and "[{i]dentify any request
—_ =
for psychological services initiated by the
victim or the victim's family that the
court requires." Md. Code, art. 41, section
124(c)(3)(iv), (v). (vi)(emphasis added).
Where the victim is deceased, a separate
subheading explicitly provides for the
needed data to be gotten "from the
personal representative, guardian, or
committee, or such family members as may be
538, 540-41 (1984) (presentence report
admissible at penalty trial); State v-~-
Reeves, 216 Neb. 206, 221, 344 N.W.2a
433, 444 (1984)(per curiam)(same). See
generally Henderson, supra note 2, at 986-
87.
10
necessary." Id. (c)(4)(emphasis added).
See generally supra note 3. If one
considers how, practically speaking, such a
statute applies ina capital murder case,
it is readily apparent why admission of a
VIS or similar impact evidence at
sentencing is “fraught with constitutional
danger." See Moore v. Zant, 722 F.2d 640,
646 (11th Cir. 1983),reh'g en banc granted,
738 F.2d 1126 (11th Cir. 1984).
Every murder trial includes, as part of
the prosecution's case, the fact that a
particular victim has died and the extent
— a eS
SBecause. victim impact legislation is
of recent origin, see supra note 4, the
statutes themselves have generated few
reported cases Even in the absence of
statutes, however, proof of this type has
at times been offered in capital and non-
capital trials, and courts have passed upon
its propriety. See, e.g., People v. Free,
94 111.2d 378, 447 N.E. 2d 218, cert.
denied, 464 U.S. 865 (1983); Muckle v.
State, 233 Ga. 337, 211 S.E.2d 361 (1974);
People v. Levitt, 156 Cal.App.3d 500, 203
Cal.Rptr. 276. (1984). Examples of
experience with similar evidence elsewhere
illuminate the problems of the Maryland
law, and are accordingly included here.
11
of his or her injuries. The killing is an
element of the crime charged, and proof of
injuries is typically relevant to intent
and other issues of mens rea as well as to
the means employed. ® Further, special
facts about the victim which aggravate the
crime when known to the killer -- such as
the victim's status as a policeman on duty
or vulnerable child or elderly person--
will naturally emerge during trial; they
will be highlighted in the penalty phase
where a state has chosen to make them
statutory aggravating circumstances. If a
VIS is to have any significance, it would
rest on the contents of the statement over
and above all of this information. The
matter, not bearing on the crime or the
defendant's mental state in relation to it,
is, of course, what this case is about.
SeE.g., certain kinds of wounds,
consistent with the close-range firing of a
gun, would tend not only to prove the
instrumentality of death but also,
ordinarily, intent to kill.
*-
12
Typically, those parts of the VIS that
go beyond the evidence at trial portray
grief-stricken relatives expressing their
extreme sorrow, sense of loss, and anger
over their bereavement -- often in highly
emotional terms. Sometimes, these
survivors call, explicitly or implicitly
(as here), for the death of the
perpetrator, or announce their impatience
with procedures and delays in the courts.
They relate somatic and psychological
symptoms of distress attributed by them to
the murder, such as physical ailments,
effects on pregnancy, lack of appetite,
sleeplessness, nightmares, fears and
depression. Frequently, too, the adult
survivors describe these conditions in
their children.?
7Samples of all the varieties of proof
detailed in this paragraph and the next
appear both in Booth, 306 Md. 172, 234-39,
507 A.2d 1098, 1130-33 (1986), and in
Maryland's leading case on victim impact
evidence, Lodowski v. State, 302 Md. at
764-72, 780-84, 490 A.2d at 1265-70, 1273-
13
Insofar as the VIS recounts matter
pertaining to the actual victim, that too,
ordinarily, has no bearing on the
circumstances of the crime or the
defendant. Frequently, (as here), family
members were not present at the time of the
killing and have no relationship with the
killer. Hence, they tend to dwell upon
general good character traits and
achievements of the deceased, see, e.g.,
Moore v. Zant, supra (victim's education
and work habits), and recollections of
“happier days." See, e.g., Lodowski, 302
Mad. at 770 n.8, 490 A.2d at 1268 n.8 (Cole,
J., concurring)(topic heading in victim's
mother's VIS was entitled "'Our Past Happy
Days'"); Tobler v. State, 688 P.2d 350
(Okla. Crim. App. 1984)(surprise Mother's
Day family reunion involving the victim).
76 (Cole, J. concurring). See also infra at
40-45; Petitioner's Brief at (Statement
of the Case).
14
Such proof at a penalty trial fails to
contribute “measurably” -- or at all -- to
the recognized aims of capital sentencing,
which, as the Court has often stated, are
mainly retribution and general deterrence.
See, e.g., Enmund v. Florida, 458 U.S. 782,
798 (1982); Gregg v. Georgia, 428 U.S. at
183 (opinion of Stewart, Fowell and
Stevens, JJ.); see also id. at 233
(Marshall, J., dissenting). These aims
explain why capital punishment decisions
since Gregg constantly recur to the theme
of “personal responsibility and moral
guilt,” Enmund v. Florida, 458 U.S. at 801,
and hence to the constitutional requirement
that the life-or-death decision focus on
“relevant facets) of the character and
record of the individual offender" and "the
circumstances of the particular offense."
Id. at 798; Woodson v. North Carolina, 428
U.S. at 304 (opinion of Stewart, Powell and
Stevens, JJ.). See, e.g., California v.
15
Ramos, 463 U.S. at 1006; Zant v. Stephens,
462 U.S. 662, 879 (1983); Lockett v. Ohio,
438 U.S. 586, 604 (1978) (plurality
opinion); Gregg. 428 U.S. at 189 (opinion
of Stewart, Powell and Stevens, JJ.). For
Enmund v. Florida, supra, in barring the
infliction of death upon a vicarious felony
murderer who did not intend any killing to
occur, made clear that both the retributive
and the deterrent efficacy of capital
punishment depend critically on the degree
of a defendant's culpability and, above
all, his intent -- considerations built
into the death-selection standard revolving
about the crime and the criminal. See id.,
458 U.S. at 799-801. Executing a defendant
on the basis of results over which he had
no control and which he did not contemplate
neither “educates” future offenders nor
16
|
:
constitutes “just deserts” for the actions
of this particular offender. ®
Unintended physical, emotional and
psychological after-effects on relatives do
not increase the moral blameworthiness of
the killer beyond the onus he already bears
for committing the murder, and are
“constitutionally irrelevant." See
California v. Ramos, 463 U.S. at 1001-02
(footnote omitted); Zant v. Stephens, 462
U.S. at 6865. Since “the fact that a
victim's family is irredeemably bereaved
can be attributable to no act of will of
the defendant other than" the killing,
meting out death on account of “fortuitous
circumstances” like “the composition of the
Seven if specific deterrence or
incapacitation of the killer (preventing
his commission of further crimes) were
thought to justify capital punishment, cf.
Gregg. 428 U.S. at 183 n.28 (opinion of
Stewart, Powell and Stevens, JJ.) (taking
no position on the question), achievement
of these aims, too, would involve
assessment of factors relating to the crime
or the criminal.
17
Cal. App.3d at 516-17, 203 Cal. Rptr. at
287-88, or survivors' need for
“psychological services," Lodowski, 302 Md.
at 764 n.6, 490 A.2d at 1265 n.6, 1267
(Cole, J., concurring); see Md. Code, art.
41, section 124(c)(3)(v), does not further
deterrence or retribution. Indeed :
It would be difficult to find
anything less relevant to the
circumstances of this offense or
the character of this defendant
than testimony concerning the
reactions of family members of his
unfortunate victims. Their
reaction was not to the nature of
his crime but to the fact that the
crimes happened.
People v. Free, 94 Ill. 2a at 436, 447
N.E.2a at 246 (Simon, J., concurring in
part and dissenting in part). Similarly,
proof of the victim's sterling character
ordinarily has no legitimate place ata
capital trial and serves only to inflame
the jury. See, e.g., People v. Holman, 103
Ill.2d 133, 166-67, 469 N.E. 24 119, 134-
18
om’ eo ous eh<«® ~ se — =
35 (1984), cert. denied, 469 U.S. 1220
(1985) .9
In Lodowski, on which the Maryland
Court of Appeals relied in Booth, the
majority cursorily equated victim impact
evidence with the "circumstances
surrounding the crime" and therefore deemed
it admissible. 302 Md. at 741-42, 490 A.2d
at 1254. This argument is wholly
unpersuasive. Lodowski, 302 Md. at 774, 490
A.2d at 1270 (Cole, J., concurring). Cf.
Moore v. Zant, 722 F.2d at 653 n.3
(Kravitch, J., concurring in part and
ee
9 In certain limited situations, facts
concerning the victim's character may be
relevant to guilt or innocence, or to the
degree of the defendant's personal
culpability, and hence admissible at
capital trials as at others. See generally
Fed. R. Evid. 404(a)(2)(permissible for
state to show peaceable nature of victim to
rebut evidence offered by defendant to
prove victim was first aggressor). Compare
Moore v. Zant, 722 F.2d at 645 (victim's
character bore on existence of an
aggravating circumstance) with id. at 651
(Kravitch, J., concurring and dissenting)
(contra). . .
19
dissenting in part)("pure sophistry” to
subsume victim's “positive attributes”
under “‘circumstances of the crime'") ./°
On the one hand, to the extent that after-
effects are idiosyncratic, like the
blighting influence on a granddaughter's
wedding of the murder involved in this case
(JA ___), such an expansive conception of
“crime” suggests no principled outer limits
germane to culpability. cf. Evans v.
State, 422 So.2d 737, 743-44 (Miss.
1982)(error in admitting proof of victim's
wife's pregnancy, unknown to defendant, at
capital sentencing was cured by
instruction). On the other hand, as to
predictable effects -- the likelihood, for
10py contrast, aggravating
circumstances such as killing a victim who
is known to be an on-duty police officer or
especially vulnerable, see supra at i2,
genuinely relate to the nature of the
offense. See Moore v. Zant, 722 F.2d at
652 n.2 (Kravitch, J., concurring in part
and dissenting in part); _ Levitt,
156 Cal. App. 3d at 516-17, 203 Cal. Rptr.
at 287-868.
20
instance, that someone will mourn the
victim's loss -- their very generality
defeats the goal of individualization in
sentencing. See, e@.g., Zant v. Stephens,
462 U.S. at 879; Eddings v. Oklahoma, 455
U.S. 104, 110-12 (1982). In any event,
Engund made clear that the death penalty
cannot be grounded on broad notions of
responsibility for all foreseeable results
of one's acts:!! death imposed on such a
11, pre-Furman state court decision,
» $3 Cal.2d 643, 350 P.2d
705, 3 Cal. Rptr. 665 (1960)(Traynor,
CJ.), is very*instructive in this regard.
There, the court vacated a capital sentence
because the state had presented proof of
the victim's extreme pain, in the absence
of any showing that the killer had intended
to make her suffer when he shot her fatally
at point-blank range. Operating under a
system where (unlike now) the jury
possessed “complete discretion" to assess
sentence, and conceding that “retribution
may be a proper (sentencing)
consideration,” the court nonetheless
expressed strong doubt “that the penalty
should be adjusted to the evil done without
reference to the intent of the evildoer.”
53 Cal.2d at 856-57 & n.3, 350 P.2d at 712-
13 &@n.3, 3 Cal. Rptr. at 672-73 & n.3.
21
basisi2 amounts to “'nothing more than the
purposeless and needless imposition of pain
and suffering'” and thus to
“unconstitutional punishment.” See Enmund,
456 U.S. at 798, quoting Coker v. Georgia,
433 U.S. 584, 592 (1977).
2. By Deflecting the Jury From Its
Proper Task of Objectively Considering
the Particularized Circumstances of the
Individual Offender and Crime, Intro-
Guction of Victim Impact Statements at
the Penalty Phase Encourages Arbitrary
Sentences of Death. _
If a state wishes to authorize capital
punisnment, it “must channei the
sentencer's discretion by ‘clear and
objective standards’ that provide ‘specific
and detailed guidance,’ and that ‘make
rationally reviewable the process for
imposing a sentence of death.'” Godfrey v.
12ct. Gardner v. Florida, 430 U.S.
349, 359 (1977): “If, as the State argues,
it is important to use such information in
the sentencing process, we must assume that
in some cases it will be decisive in the
[sentencer's) choice between a life
sentence and a death sentence.”
Georgia, 446 U.S. 420, 428 (1980)
(plurality opinion) (citations omitted).
Although the jury should have as much
relevant data as possible to inform its
choice, Gregg, 428 U.S. at 204 (opinion of
Stewart, Powell and Stevens, JJ.); see Zant
v. Stephens, 462 U.S. at 878, "(i]t would
be erroneous to suggest that the Court has
imposed no substantive limitations on the
particular factors that a capital
sentencing jury may consider in determining
whether death is appropriate.” California
v. Ramos, 463 U.S. at 1000. Critically,
evidence that introduces arbitrary
variables into the life-or-death decision
affronts the central constitutional tenet
that a capital sentence must be "'based on
reason'" -- in appearance and reality--
“rather than caprice or emotion." Zant v.
Stephens, 462 U.S. at 885, quoting Gardner
v. Florida, 430 U.S. at 358. See also
People v. Love, 53 Cal. 2d at 856, 350 P.2d
23
at 713, 3 Cal. Rptr. at 673 (pre-Furman
case).
Because Victim Impact Statements and
Similar forms of evidence virtually invite
jurors to sentence on the basis of
"'passion, prejudice or ... other arbitrary
factor(s]'," no civilized system should
sanction their use at the penalty phase of
capital trials. Cf. Gregg, 428 U.S. at 166-
67, 198 (opinion of Stewart, Powell and
Stevens, JJ.)(upholding Georgia's capital
statutes in part because appellate review
minimized the influence of -these factors).
Judge Cole, the dissenter on this point in
Booth, captured the essence of the dangers
posed to rational sentencing by such
innately inflammatory evidence in his
concurrence in Lodowski:
In my view, the only
purpose in allowing members of
the victim's family in a
capital sentencing proceeding
to vent their passions and
express their grief, as in
this case, is to exacerbate
the aggravating circumstances
24
established by the
prosecution. These
demonstrations are arbitrary
and capricious and create a
frenzied environment for the
defendant. How can he
challenge any . testimony that
expresses bereavement,
religious harm, or infant
sorrow?
Id., 302 Md. at 786, 490 A.2a at 1276-77.13
13Q0pinions in several capital cases
from other jurisdictions articulate
compatible views. See, e.g., People v.
Ramirez, 98 I111.2d 439, 453, 457 N.E.2d 31,
37 (1983)(citation omitted):
"(E)vidence that a murder
victim has left a spouse
or children is
inadmissible since it
does not enlighten the
trier of fact as to the
guilt or innocence of the
defendant or the
punishment he should
receive, but only serves
to prejudice and inflame
/ the jury."
See also People v. Free, 94 I11.2d at 436,
447 N.E.2d at 246 (Simon, J., concurring in
part and dissenting in part):
An emotional rendition of
the grief of a victim's
family, while understand-
able, can only distract
the jury from its weigh-
ing of the aggravating
and mitigating factors
25
Several states have apperentily
recognized these risks, and responded to
them sensitively, by exempting capital
penalty trials from the requirements of
victim input laws. See supra note 4. In
the absence of governing statutes too,
courts have disapproved the use in capital
proceedings of testimony designed mainly to
eveate sympathy for the victim or his or
her family, and simultaneously to generate
hatred toward the defendant. See, e.g.,
People v. Holman, 103 I11.2d at 166-67, 469
N.E.2d at 134-35; Ice v. Commonwealth, 667
S.W.2d 671, 675-76 (Ky.), cert. denied, 469
U.S. 861 (1984); Wiley v. State, 464 So.2d
339, 348 (Miss. 1986); Tobler v. State, 688
————
peculiar to the defendant
and his crime. Such tes-
timony is always inflam-
matory.
Cf. Fuselier v. State, 468 So.2d 45 (Miss.
1985)(reversal of conviction and death
sentence because victim's daughter was
permitted to sit near the prosecutor and
openly displayed emotion).
26
P.2d at 353-54; cf. Vela v. Estelle, 708
F.2d 954, 964-65 (5th Cir. 1983)(because of
counsel's ineffectiveness, jury had been
encouraged “to set punishment based on the
goodness of the murder victim"), cert.
denied, 464 U.S. 1053 (1984).
Such rulings, whether or not expressly
premised on the Eighth Amendment,
effectuate its mandate to avert the risk of
death sentences based on “caprice or
emotion." See Gardner v. Florida, 430 U.S.
at 358.14 They are bolstered by an
l4this mandate in no way conflicts
with the defendant's position in People v.
Brown, 40 Cal.3d 512, 709 P.2d 440, 220
Cal. Rptr. 637 (1985), cert. granted, __
U.S. __, 90 L.Ed.2d 717 (1986), challenging
a penalty-phase instruction that the jury
should not be swayed by sympathy. The
California Supreme Court had previously
held that a jury may not rely upon
factually untethered sympathy -- i.e.,
sympathy not based on the evidence. People
v. Lanphear, 36 Cal.3d 163, 168 n. 1, 680
P.2d 1081, 1084 n. 1, 203 Cal. Rptr. 122,
125 n.1 (1984); see People v. Easley, 34
Cal. 3d 858, 876 671 P.2d 813, 824, 196
Cal. Rptr. 309, 320 (1983). In Brown, the
defendant produced substantial mitigating
evidence relating to his character and
background, as he was clearly entitled to
27
additional line of precedent that holds
inadmissible victim-character or
generalized victim-sympathy proof -- as
irrelevant or overly inflammatory -- even
without regard to the special
considerations obtaining in capital
sentencing proceedings. See, e.g., People
v. Levitt, 156 Cal. App.3d at 517, 203 Cal.
Rptr. at 288 (family's bereavement
irrelevant to sentence of a defendant .
convicted of manslaughter); Henderson v.
tate, 234 Ga. 827, 828, 218 S.E.2d 612,
614 (1975) (generally, murder victim's
do (see, e.g.,. Skipper _v. South Carolina,
U.S. __, 90 L.Ed.2a 1 (1986); Lockett v.
Ohio, supra); the sole issue dividing the
parties is whether the no-sympathy
instruction foreclosed the jurors '
consideration of this evidence, whose
relevance no one disputes. See Brief for
Respondent in People v. Brown, supra, at 9-
10, 24.
Here, by contrast, the issue is
precisely the relevance of evidence
entirely unrelated to the character or
background of a defendant or to his crime,
but instead dealing only with collateral
facts about a victim or surviving relatives.
28
character is irrelevant and inadmissible in
a murder trial); Fisher v. State, 482 So.2d
203, 225 (Miss. 1985) (en banc) (same);
Welty v. State, 402 So.2d 1159, 1162 (Fla.
1981) (preference for non-family member
testimony, whenever feasible, to identify
the deceased); cf. State v. Sprake, 637
S.W.2d 724, 727 (Mo. Ct. App. 1982) (in
second-degree murder case, error to call
widow solely to expose her to jury, to
engender sympathy for the family and
prejudice against the defendant); People
v. Bartall, 98 [I11.2d 294, 322-23, 456
N.E.2d 59, 72-73 (1983) (prosecutor's
summation on victim's rights held improper
but harmless, in part because there had
been "no presentation of irrelevant
evidence about the grieving family"); Grant
v. State, 703 P.2d 943, 945-47 (Okla. Crim.
App. 1985) (prosecutor's statement that
manslaughter victim was survived by eleven-
8]
29
year old daughter held to be error although
harmless) .15
Simply stated, courts have sought to
avoid the dangers of exposing juries to
emotion-laden evidence of dubious or non-
existent relevance, both in capital and
ordinary trials. Whether or not the
Constitution requires this caution in non-
capital cases, see supra note 2, it is
“essential in capital cases," Lockett v.
Ohio, 438 U.S. at 605, where the Eighth and
Fourteenth Amendments demand the highest
Gegree of protection against subjectivity
and prejudice. E.g., Gardner v. Florida,
Supra; Turner v. Murray, supra.
15o¢ course, under certain
circumstances, evidence of the victim's
character, good or bad, may bear
sufficiently on issues pertinent to the
trial to be admissible. See supra note 9.
However, it is hard to envision any
setting. in a criminal case, in which such
matters as survivors’ sorrow or physical] or
psychological symptoms are relevant. Cf.
Peopie v. Levitt, 156 Cal. App. 3d at 157,
203 Cal. Rptr. at 288 (evidence of this
sort “is relevant to damages in a civil
action").
30
3. Admission of Victim Impact Evidence
Would Necessitate Admission of
Expansive Proof of a Similar Type,
Offered On Behalf of Defendants.
A holding by the Court tolerating
victim impact evidence would necessarily
expand the scope of future penalty trials
beyond all reason. For if the Court gives
its imprimatur to a wholly new definition
of relevance in capital sentencing -- a
definition loosed from the traditional
moorings of the defendant's character,
background and crime -- it must also deem
relevant in mitigation proof whose reach
will be bounded only by the inventiveness
of counsel.
Take as an instance the subject of the
victim's character. What principle of
logic or fairness could deem it relevant
that the deceased was a good person and at
the same time irrelevant that he or she was
bad? Were the state permitted to prove
that a victim was educated and hard-
working. a defendant should be permitted to
31
show that a victim was a sixth-grade
dropout, who never worked a day in his
life. Similarly, if it “matters” in the
context of capital sentencing that one
victim left a family who loved her, it also
“matters” that another was hated by
surviving relatives -- or, indeed, left no
family at all. A defendant cannot
constitutionally be foreclosed from
offering evidence pertinent to the issues
in a criminal trial, see, e.g., Chambers v.
Mississippi, 410 U.S. 2864 (1973), and the
same rule applies at the penalty phase of a
capital case. See, e.g., Green v. Georgia,
442 U.S. 95 (1979)(per curiam) .}®
i6Where the prosecution has presented
evidence enhancing the victim, there can
simply be no way to avoid the conclusion
that the defendant has a Fourteenth
Amendment right to “'deny or explain'” it,
by proving, e.g., that the victim was
unworthy or unmourned. sen. 0.9.. Sinner
v. South Carolina, U.S. at inn.
L.Ed.2d at 7, nm. 1; v.8. et, oe
L.Ed.2d at 9-11 (Powell and Rehnquist, JJ.,
and Burger, CJ.,. concurring in the
judgment) (capital defendant denied due
process when he was barred from adducing
32
But if the spectacle of the Qetentent
“trashing” the victim through proof and
argument seems inappropriate, consider the
further prospect of competing “victims” at
penalty trials. Suppose, for example, that
the Court sanctions introduction of a VIS
containing (as here) graphic descriptions
by family members of how the murder has
destroyed their lives and thrown them into
emotional turmoil. This very case,
reveals the type of “contest of weeping
families” that would predictably follow. In
exercising his right under Maryland law to
make an unsworn statement to the jury,
Booth sought to portray his family as
victims:
—_— -_-—
evidence of his good behavior in custody to
counter argument by prosecution that he
would be a dangerous prisoner), quoting
, 430 uU.s. at 362; see
(due process violation where
defendant was sentenced to death in part on
the basis of confidential information,
“which he had no opportunity to deny or ex-
plain").
33
Now this case, it
has had a terrible effect
on me and my family and
particularly my wife. My
wif has attempted
suicide. My grandfather
had a stroke. He's past
{sic} away. He's
deceased now as a result
of me facing a death
penalty in this case.
. P . .
The effect of this thing
on my grandmother has
been hard. She is under
doctor's care. She has
heart problems and I
think that if I am
sentenced to death, that
woman would actually die.
I know it.
(JA ; gee also JA _). The prosecution
did not object to these comments--
possibly because state law permits
“allocution” by defendants on matters not
confined to the record. See Booth, 306 Md.
at 197-99, 507 A.2d at 1111 (discussing Md.
Rule 4-343 (d)). It would seem, however,
that once VIS evidence of the sort admitted
against Booth is permitted, the defendant
must have the constitutional right to
34
present sworn statements or testimony by
parents, grandparents, children and
siblings to describe in detail their own
physical and psychological “victimization,”
which could be expected to result from
their loved one's execution.!? If the
deceased's weeping smother has a role to
play at sentencing, by the same token so
must the defendant's: either such feelings
properly enter the capita] calculus or they
do not. Yet to sanction such proof would
—_—-— _ —
iTyothing in the Eighth Amendment
compels admission of such collateral
evidence, untethered to proof about the
defendant's own better qualities. See,
e.g., Coppola vy. Commonweaith, 220 Va. 243,
257 S.£.2d 797 (1979)(no error in excluding
evidence of adverse effects on defendant's
children of his prosecution for capital
murder since it was irrelevant to
mitigation), cert. denied, 444 U.S. 1103
(1980); see generally Skipper v. South
Carolina, U.S. at , 90 L.£d.2d at 6, &
n.2. See also Moore v. Zant, 722 F.2d at
653 n.4 (defendant should not be permitted
"to argue the victia's worthiessness in
mitigation"); State v. Gaskins, 264 S.C.
105, 128, 326 S.£.2d 132, 145 (19865)(no
error in excluding confession of victia, a
murderer under sentence of death, since
victia's status "did not entitle
(defendant) to kill him").
35
be tantamount to toppling the entire
edifice of rational capital sentencing
jurisprudence which the Court has taken
such pains to erect.
4. Victim Impact Statements Invite the
Jury to Impose Sentences of Death for
Const itutionally Impermissible Reasons.
Worse. if possible. than death
sentences that are entirely arbitrary in
the sense that a strike of lightning is
freakish, see Furman, 4068 U.S. at 309-10
(Stewart, Jes concurring). are those
imposed on invidious grounds: where the
lightning rod is race, religion, class or
wealth, or some other constitutionally
forbidden criterion. See Zant v. Stephens,
462 U.S. at 665; Furman, 406 U.S. at 249-51
(Douglas, J., concurring): id. at 310
(Stewart, J.. comeurring): id. at 363-66
(Marshall. J., comcurring); Moore v. Zant,
722 F.24 at 665-46. Im addressing the
necessarily capricious quality of victim
36
a
impact evidence, Judge Cole once again gave
eloquent voice to the basic problems:
What can be a more
arbitrary factor in the
decision to sentence a
defendant to death than
the words of the victim's
family, which vary
greatly from case to
case, depending upon the
ability of the family
member to express his
grief, or even worse
depending upon whether
the victim has family at
all? In more practical
terms, a killer of a
person with an educated
family would be put to
death, whereas in a crime
of similar circumstances,
the killer of a person
with an uneducated family
or one without a family
would be spared.
Booth, 306 Md. at 233, 507 A.2d at 1129
(Cole, Jer concurring in part and
dissenting in part). It is no great leap
from the judge's perception of the
arbitrariness of the listed factors to an
understanding that these -- and others--
have a highly discriminatory potential.
37
This is so for a number of reasons.
First, such characteristics as the
articulateness of family members will often
be the products of class or wealth, thereby
serving as surrogates for impermissible
status considerations that no one would
claim should influence capital
sentencing.18 Purther, not only the mode of
expression but also its substance typically
encourages the jurors to consider the
social value of the victim and “compare the
relative worth of the victim and the
defendant to society."19 See Brooks v.
Kemp, 762 F.2d 1383, 1439 (11th Cir. 1985)
181t is instructive in this regard to
compare the power of expression of the VIS
in Booth, see infra at 40-45, with
petitioner's admitted sense of inadequacy
in allocution: “I've never been a real good
speaker in front of people or anything like
that. I'm not gifted with words or nothing
like that." (JA ___).
19cf. Moore v. Zant, 722 F.2d at 653
n.4@ (Kravitch, J., concurring in part and
dissenting in part)(invoking “spectre” of
statute listing as aggravating factor that
“victim of the murder was a valuable member
of society and of her family").
38
(en banc) (Clark, J., concurring in part
and dissenting in part), vacated on other
grounds, _.._—s««~vU.S. __.. 92 L.Ed.2d 732
(1986); Moore v. Zant, 722 F.2d at 652-53
(Kravitch, J., concurring in part and
dissenting in part). Social worth, as the
jurors view it, will also tend to vary with
factors like education, class and wealth,
whether of the victim or the survivors--
and, regrettably, often with race or
religion as well. See, e.g., People v.
Holman, 103 Ill. 2d at 167-68, 469 N.E.2d
at 135 (death sentence vacated where
prosecutor alluded to “religous moral
fiber" of victim's mother as well as
accomplishments of victim); see generally
Turner v. Murray, supra (especially great
risk of racial discrimination in capital
sentencing). By its very nature, this type
of evidence invites the jury to “choose up
sides," to empathize with the (usually more
attractive) victim or the victim's family,
39
in particular where these are white,
middle-class, and otherwise similar to most
of the jurors.
II.
THE ADMISSION AT PETITIONER'S
PENALTY TRIAL OF A LONG,
IRRELEVANT, INFLAMMATORY VICTIM
IMPACT STATEMENT VIOLATED
PETITIONER'S RIGHTS UNDER THE
EIGHTH AND FOURTEENTH AMENDMENTS . _
Agent Michelle Swann of the Division of
Parole and Probation prepared a four-page,
single-spaced VIS in this case, reporting
the reactions of the victims’ son,
daughter, son-in-law, and one
granddaughter. The statement is fully set
out in the Joint Appendix (JA __) and is
excerpted in Petitioner's Brief. See id. at
(Statement of the Case). For present
purposes, a small sampling of the data
contained within this document -- which the
prosecutor in his closing urged the jurors
to “'read out loud'” in the jury room--
provides a graphic illustration of why this
40
| aceiiiti
kind of proof is anathema to rational
capital sentencing. 2°
First, the VIS was replete with
emotional and incendiary comments. For
example: “'The victims' son feels that his
parents were not killed but were butchered
like animalis'."” (JA ___). The victims’
daughter “'saw the bloody carpet, knowing
that her parents had been there, and she
felt like getting down on the rug and
holding her mother'.” (JA "'(Sj)he
oa
could never forgive anyone for killing them
that way'” and "“'states that animals
wouldn't do this'.” (JA __).
Interspersed among such remarks were
statements amounting to calls for a death
-_——
20pooth, 306 Md. at 240, 507 A.2d at
1133 (Cole, J., concurring in part and
dissenting in part)(emphasis in original).
In light of the prosecutor's exhortation
and the fact that the VIS (and the rest of
the presentence investigation report)
comprised the entire state's case at
sentencing, 306 Md. at 194, 507 A.2d at
1109, the use of this grossly inflammatory
statement could not have amounted to
harmless error.
41
sentence,21 expressions of sentiments of
revenge, and implicitly adverse judgments
about the course of the prosecution. The
daughter, for instance, “‘attended the
defendant's trial and that of the co-
defendant because she felt someone should
be there to represent her parents’.” (JA
an "“'She doesn't feel that the people
who did this would ever be rehabilitated
and she doesn't want them to be able to do
this again or put another family through
this'.” (JA __). The son “‘doesn't think
anyone should be able to do something like
this and get away with it’.” (JA __).
Further,
"the victims’ family members
note that the trials of the
suspects charged with these
offenses have been delayed for
over a year and the
postponements have been very
2lintroduction of sentencing
recommendations in a capital penalty trial
is forbidden by Maryland law. Md. Code,
art. 27, section 413(c)(iv). See Lodowski,
302 Md. at 775, 490 A.2d at 1271 (Cole, J.,
concurring).
42
~-—~— —
hard on the family
emotionally.... The family
wants the whole thing to be
over with and they would like
to__see swift and just
punishment."
(JA ___) (emphasis added).
In addition to quoting more comments of
a similar nature, the VIS recounted the
various physical and psychological problems
experienced by the interviewees as well as
by other members of the family. The
statement noted, for instance, that a
granddaughter with whom the agent had not
spoken had had her wedding, honeymoon and
associated memories ruined by the tragic
events of the time (JA __); different
grandchildren (also not interviewed by the
agent) were poignantly reported as having
first learned of their grandparents’ death
via television. (JA __).
The VIS also described the victims in
extremely laudatory terms as “'amazing'”
people, who enjoyed 4 "'very close
relationship’,” “‘had made many devout
43
friends'" (JA ___), and whose funeral was
"'the largest in the history'” of the
funeral home. (JA _.). Finally, it
contained editorial] comments by Agent
Swann?2 and global] statements by the
22see, e.g.: “'Perhaps [the grand-
daughter) described the impact of the
tragedy most eloquently when she stated
that it was a completely devastating and
life altering experience’." (JA __). The
agent's “peroration,” with which the VIS
ended, was as follows:
"It became increasingly
apparent to the writer as
she talked to the family
members that the murder
of Mr. and Mrs. Bronstein
is still such a shocking.
painful and devastating
memory to them that it
permeates every aspect of
their daily lives. It is
(JA _)(emphasis added). Cf. State v.
Rushing. 464 So.2d 268, 275 (La. 1985),
cert. denied. _— U.S. __. 90 L.Ed.2d 703
(1986) (error to admit testimony that
killing was one of most vicious policeman
had ever seen since this was tantamount to
44
survivors that their lives would never be
the same again.
. . .
No one could remain untouched by the
genuine suffering conveyed in the
statement. But that is, in fact, our
point. This type of emotional, inflammatory
evidence “has no place in a statutory
weighing process which owes its very
existence to the constitutional mandate
that the death penalty must not be
administered in an arbitrary or capricious
manner.” Booth, 306 Md. at 241, 507 A.2d at
1133 (Cole, J., concurring in part and
dissenting in part). Survivors (and
understandably sympathetic parole and
probation agents) cannot be permitted to
function as supplemental) prosecutors,
raising a hue and cry for vengeance.
Because petitioner's sentence of death very
opinion that alleged aggravating factor
existed).
45
likely was -- and surely appeared to be--
based on caprice and emotion, not reason,
this Court must overturn it.
CONCLUSION
The Court should reverse the judgment
of the Court of Appeals of Maryland.
Respectfully submitted,
JULIUS L. CHAMBERS
JAMES M. NABRIT, III
JOHN CHARLES BOGER
VIVIAN BERGER*
99 Hudson Street
16th Floor
/ New York, New York 10013
(212) 219-1900
ANTHONY G. AMSTERDAM
New York University Law
School
40 Washington Square South
New York, New York 10012
(212) 598-2636
Legal Defense and
Educational Pund, Ine.
By: .
Vivian Berger
*Counsel] of Record
Dated: December 3, 1986
46
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.