Reply Brief — Selvage v. Collins

2

No. 87-6700

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1989

JOHN HENRY SELVAGE,

Petitioner,

Vv.

JAMES A. LYNAUGH,

Director, Texas Department of Corrections

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

REPLY BRIEF FOR PETITIONER

Davip CUNNINGHAM Jutius L. CHAMBERS

1927 Norfolk *RICHARD H. Burr, III

Houston, TX 77098 GEORGE H. KENDALL

(713) 520-7701 STEVEN W. HAWKINS

99 Hudson Street, 16th Floor

New York, NY 10013

(212) 219-1900

Counsel for Petitioner ~—

*Counsel of Record

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

TABLE OF AUTHORITIES . . +. «+ « -« i

ARGUMENT IN REPLY TO RESPONDENT'S BRIEF

I.

It.

Tit.

THERE IS NO LEGITIMATE DISPUTE

THAT THE ADEQUACY AND

INDEPENDENCE OF TEXAS'

PROCEDURAL DEFAULT RULE, THROUGH

ITS CHAMBERS EXCEPTION, IS

PROPERLY BEFORE THE COURT AND

THAT THE APPLICATION OF THE

RULE EXCUSES MR. SELVAGE'S

DEFAULT... . . . — 1

A. The Chambers rule governs this

gase . . 7. . 7 a. * 7 2

B. There is no independent basis for

the ruling below... . . 7

BY IGNORING THE DIFFERENCE

BETWEEN “PERCEIVED FUTILITY"

AND LEGAL FORECLOSURE, THE STATF

AND ITS AMICUS CURIAE SEEK TO

HAVE THIS COURT PROPOUND A RULE

THAT WOULD PROVE SEVERELY

DETRIMENTAL TO BOTH STATE

COURTS AND CRIMINAL

DEFENDANTS. ..- + + «© «© « -« 10

MR SELVAGE HAS DEMONSTRATED THAT

THE PENRY ERROR IN HIS TRIAL

INVOLVES A FUNDAMENTAL

MISCARRIAGE OF JUSTICE. . . 18

A. Penry Error Is A Denial Of Basic

— fe ee eee ee ee ee |

The Standards Proposed By The

State For The "Innocence"

Determination Are Contrary To

The Standard Dictated By

Murray v. Carrier . . . - -23

Had The Jury Been Able To

Consider All The Relevant

Mitigating Evidence, It Probably

Would Not Have Imposed

Death . . 7 o . > . 7 o 28

CASES Pages

Ake v. Oklahoma, 470 U.S. 68 (1985) . .7

California v. Ramos, 463 U.S. 992

TERE. 6 6 6 6 © ¢ 6 © « 19, 27

Ex parte Chambers, 688 S.W.2d 483

(Tex. Cr. App. 1984) ...... . passim

Doyle v. Ohio, 426 U.S. 610 (1976) .. 9

Eddings v. Oklahoma, 455 U.S. 104

ETE 'E < ~ «6 gg 6 ge eee 27,30

, 456 U.S. 107

(1982) . ; eee 11, 17

Enmund v. Florida, 458 U.S. 782

(1982) ‘ ” a‘ . oe 24

Ford v. Wainwright, 477 U.S. 399

(1986) . , : A eee. > 24

Frank v. Mangum, 237 U.S. 309

(1915) . , a : os . « »—« 2

Franklin v. Lynaugh, 101 L. Ed. 2d

155 (1988) ; 2 . ao. . | S

, 483 U.S. 756

(1987) * . _ . > > > >. _ 9

Granviel_v. Estelle, No. CA-4-78-115

ame wets oa. 26, 2979) . . - .« 12

Harris v. Reed, 103 L. Ed. 2d 308

(1989). , —_- ; : 6

Jones v. Barnes, 463 U.S. 745

(1983) . : . ‘ ; ; 15, 17

Jurek v. Texas, 428 U.S. 262

(1976) > > > . >. >. * *. 12, 14

leckatt vy. Obie, 438 U.S. 536

(1978) . , 12, 14, 26

Lowenfield v. Phelps, 98 L. Ed. 2d

568 (1988). >. > . 7. * >. >. . _ . - >. . 19

Mills v. Maryland, 100 L. Ed. 2d 384

(1988) . . , — , —— 20

MUXEAY Ys _Carzier, 477 U.S. 478

(1986) ; ‘ 20, 25, 26

Penry v. Lynaugh, 106 L. Ed. 2d

256 (1989) ‘ ; ; . ; Passim

Penry v. Lynaugh, 832 F.2d 915

(Sth Cir.1987) . . . : 3

, 592 S.W.2d 933

(Tex. Cr. App. 1980)....... 21, 23

duenex_x._ShumaD. 483 U.S. 66

(1987) . : : 19

Teague v. Lane, 103 L. Ed. 2d

a= s « »« « «ee 6, 13

Thompson v. Oklahoma, 101 L. Ed. 2d

702 (1988). a.» » « «-*% 24

Tison v. Arizona, 481 U.S. 137

sano E's <¢ « w ee * 24

in Re Winship, 397 U.S. 358

Dt es < 6a ¢ «es 6.4 €ece ® « 11

ii

Woodson v. North Carolina,

rf = = SF 19

Zant vy. Stephens, 462 U.S. 862

(1983) . . . . . . . . . . . 19, 20, 27

Baldus, Woodworth, Pulaski & Kyle,

Identifving Comparatively Excessive

; A Quantitative

, 33 Stan. L. Rev. 1

ei Gis « 64s s 6 « 6 © « 30

Baldus, Pulaski & Woodworth, Comparative

Review of Death Sentences: An Empirical

Study of the Georgia Experience,

Crim. L. & Criminology 661 (1983) ... 31

Baldus, Woodworth & Pulaski, Monitoring

and Evaluating Contemporary Death

Sentencing Systems: Lessons from

Georgia, 18 U.C. Davis L. Rev. 1375

(1985) >. * >. * > .* > — > . > _ el 31

iii

ARGUMENT IN REPLY TO RESPONDENT'S BRIEF

I. THERE IS NO LEGITIMATE

DISPUTE THAT THE

ADEQUACY AND

INDEPENDENCE OF TEXAS'

PROCEDURAL DEFAULT

— , THROUGH ITS

ERS EXCEPTION, IS

PROPERLY BEFORE THE

COURT AND THAT THE

APPLICATION OF THE

RULE EXCUSES MR.

SELVAGE'S DEFAULT

The State of Texas agrees with Mr.

Selvage that the Texas courts follow a

well-established exception to the state's

contemporaneous objection rule -- that

"“'where a defect of constitutional

magnitude has not been established at the

time of trial, the failure of counsel to

object does not constitute waiver.'"

Respondent's Brief at 28, quoting Ex parte

Chambers, 688 S.W.2d 483, 486 (Tex. Cr.

App. 1984). The State nevertheless

maintains that the finding of waiver in

Mr. Selvage's case by the state courts,

and deferred to by the lower federal

courts -- all more than a year before the

announcement of Penry v. kLynaugh, 106

L.Ed.2d 256 (1989) -- continues to control

the threshold question of whether an

adequate and independent state law ground

bars review of Mr. Selvage's Penry clain.

Simply stated, Texas' argument must fail

because the straightforward exception to

the contemporaneous objection rule plainly

applies to this case, no independent state

law ground otherwise supports the decision

below, and the application of this rule

has been timely presented by Mr. Selvage.

A. The Chambers rule governs this

case

When Mr. Selvage presented his claim

that the instructions at his penalty trial

prevented the jury from giving mitigating

effect to the evidence that he was

addicted to heroin and that he was not the

killer, he argued that he had been

deprived of his Eighth Amendment right to

an individualized sentencing

2

determination. In support of this clain,

Mr. Selivage acknowledged that the prior

decisions considering similar claims were

adverse, but he urged the courts to

reconsider these decisions for two

reasons: a panel of the United States

Court of Appeals for the Fifth Circuit had

recently suggested such a denial could

offend the Eighth Amendment in certain

cases,+ and this Court was examining the

question in Franklin v. Lynaugh, 101

L.Ed.2d 155 (1988). He was unable to cite

state court authority to support his claim

because the state courts had repeatedly

and without exception held that

supplemental instructions were not

required under the Texas capital statute,

regardless of the character of mitigating

evidence offered by a capital defendant.

1 Penry v. Lynaugh, 832 F.2d 915 (5th

Cir. 1987).

. See Brief for Petitioner at 61-66.

3

Accordingly, Mr. Selvage was unable

to argue that any court had firmly and

unequivocally accepted his position

because none had. The state courts,

finding on this state of the law no

sufficient reason to excuse the failure to

present this claim at trial, held that the

claim had been waived due to the absence

of objection at trial.

Critically, if this Court's

subsequent decision in Penry had then been

available, the state courts could not and

would not have avoided the merits of the

clain. The Texas courts have

consistently applied the well-established

exception to the contemporaneous objection

rule set forth in Ex parte Chambers in

situations just like Mr. Selvage's--

where this Court has issued a retroactive

decision that requires Texas to alter its

trial process. The application of this

exception has mandated the belated

consideration of previously waived claims

raised in the wake of numerous decisions

from this Court.?

The failure to now embrace the right

recognized in Penry within the fold of the

Chambers exception would constitute a

naked example of capricious enforcement of

that ruie. Respondent has presented no

legitimate reason why the right recognized

in Penry would not trigger the Chambers

exception. Manifestly, Penry did identify

"a defect of constitutional magnitude”

that had not been recognized previously by

Texas law.

Even though the Chambers rule is a

state law rule, it may be applied by this

Court in the first instance. This Court

has not hesitated to apply state

procedural default rules in the first

3 See Brief of Petitioner at 37-44.

5

instance to decide that claims need not be

exhausted in the state courts because they

would be procedurally barred. See Teague

v. Lane, 103 L.Ed.2d 334, 346-48 (1989);

Harris v. Reed, 103 L.Ed.2d 308, 320-22

(1989) (O4CGennor, J., joined by “shnquist,

Cc.J., and Scalia, J., concurring). The

premise for these decisions is the federal

courts' obligation under the exhaustion

rule to determine whether a state remedy

would be available if an unexhausted claim

were remanded to the state courts. Where

the claim would be procedurally barred

under state law, the Court has recognized

that it is inefficient to remand the case

to state court.

The same logic applies here, for it

is as clear that Texas law would no longer

bar Mr. Selvage's Penry claim as it was in

Teague that [Illinois law would bar

Teague's clain. Judicial economy would

Ce a ae

accordingly be served and no legitimate

state interest would be disserved by this

Court's application of the Chambers rule

to reach the merits of Mr. Selvage's Penry

clain.

B. There is no independent basis for

the ruling below

The State also fails to rebut our

argument that the proper default analysis

is dependent upon, and not independent of,

federal law, and makes several arguments

we have not made.* The Court has plainly

held that “when the resolution of the

state procedural rule depends on a federal

constitutional ruling, the state law prong

of the court's holding is not independent

of federal law. .. ." Ake v. Oklahoma,

4 See Respondent's Brief at 29-35.

For example, Respondent claims that Mr.

Selvage “argues that, because the state

court necessarily considered his Eighth

Amendment claim, the state procedural rule

is not an ‘independent' state ground .

- -" Id. at 29 (emphasis supplied).

7

470 U.S. 68, 75 (1985).

With the Court's decision in Penry,

the question here is whether the analysis

under Chambers is dependent upon, or

sufficiently entangled with, the federal

constitutional ruling. The analysis

requires an examination of whether Penry

identified a defect with the Texas capital

sentencing scheme which the Texas courts

had not recognized previously. Surely it

did. Prior to Penry, regardless of the

character of one's mitigating case, the

state courts had concluded that no

instructions in addition to the statutory

questions would be proper.»

For these reasons, and the others set

forth in our opening brief, the judgment

below does not rest upon an adequate and

5 See Brief of Petitioner at 61-67.

a a

independent state law ground. ®

6 The State argues also that the

question of whether there is a valid state

law ground is not "fairly included" within

the question presented. See Respondent's

Brief at 20-23. This argument is

meritless. The two-pronged question

presented -- does the record show "cause"

for the lack of a timely objection, and if

not, does it show that a miscarriage of

justice will nevertheless result--

presumes that Mr. Selvage failed to comply

with a valid procedural rule. In Greer v.

Miller, 483 U.S. 756 (1987), the Court

granted certiorari to determine what

harmless error standard governed a

violation of Doyle v. Ohio, 426 U.S. 610

(1976) in habeas proceedings. The Court

ultimately decided the case by concluding

that the record failed to show a Doyle

violation, concluding

([bjefore reaching the

question whether the

harmless-error

standard applies, we

must be satisfied that

an error of

constitutional

dimensicn occurred.

This fundamental

question is fairly

included in the

question presented for

review.

483 U.S. at 761 n.3. The question of

whether an adequate and independent state

ground exists is as fundamental to this

case as was the question of whether there

9

II. BY IGNORING THE

DIFFERENCE BETWEEN

"PERCEIVED FUTILITY"

AND LEGAL FORECLOSURE,

THE STATE AND ITS

AMICUS CURIAE SEEK TO

HAVE THIS COURT

PROPOUND A RULE THAT

WOULD PROVE SEVERELY

DETRIMENTAL TO BOTH

STATE COURTS AND

CRIMINAL DEFENDANTS.

The State and its Amicus Curiae fail

to appreciate the significant differences

between the concepts of “perceived

futility" and legal foreclosure as they

relate to the doctrine of procedural

default. At the time of Mr. Selvage's

was a Doyle violation in Greer.

Even if the Court were inclined, as

the State urges, not to reach the question

of the validity of the state law ruling in

Mr. Selvage's case because it was not

raised previously, the Court plainly

should make an exception for that part of

the validity of the state ground argument

which rests on the Chambers rule. That

argument was not available until Penry was

decided, and by that time, Mr. Selvage's

certiorari petition had been pending for

fifteen months. Thereafter, Mr. Selvage

timely interposed his Chambers argument.

10

trial, the situation facing his attorney

was not one of “perceived futilitv," as

that term was used in Engle v. Isaac, 456

U.S. 107 (1982). In Engle, the Ohio

courts had never bean given an

opportunity to reconsider the settled

state practice of placing the burden of

proof of self-defense on the defendant,

even though a new constitutional theory

calling this practice into question had

emerged in In Re Winship, 397 U.S. 358

(1970). Thus, this Court held that the

“perceived futility" of presenting the

Winship claim to the Ohio Courts -- that

is, the prediction that they would not

accept the claim on the merits -- was not

a sufficient cause to justify a failure to

present the claim. Rather, the interests

of comity dictated that the state courts

should have the first opportunity to

determine whether developments in federal

11

constitutional law affected their state

practice.

By contrast, before Mr. Selvage was

tried the Texas courts had repeatedly and

decisively rejected federal constitutional

claims of a right to supplemental jury

instructions such as this Court later

required in Penry. Their rejection was

based on Jurek v. Texas, 428 U.S. 262

(1976), and on Lockett v. Ohio, 438 U.S.

536 (1978); and no new constitutional

theory had evolved -- or been hinted at--

which the Texas courts had not considered

and thoroughly laid to rest. In four

separate challenges to the Texas special=

issue procedure, the Court of Appeals had

held that Jurek and Lockett had sanctioned

the constitutionality of the Texas

practice. Moreover, the only federal case

that had discussed a challenge to Texas’

practice also relied upon Jurek and

12

Leckett in rejecting that challenge. See

Granviel_v. Estelle, No. CA-4-78-115 (N.D.

Tex. Jan. 26, 1979). Selvage's lawyer did

not bypass state procedure because he

predicted that it would be futile. He

simply respected the authoritative

rulings of the state courts and forbore to

press upon them a claim which those

rulings rendered legally frivolous.’

7 There is no conflict between

finding that a pre-Penry claim was

foreclosed at the time of Mr. Selvage's

trial and finding that, under

Lane, 103 L.Ed.2d 334 (1989), the

supervening Penry decision is not a new

rule of law. The kind of foreclosure that

confronted Mr. Selvage's attorney was not

based upon any explicit holding of this

Court. It was based upon what the Court's

previous holdings apparently meant in the

light of their reasonable interpretation

by all the lower courts that had

construed then. When this Court

subsequently held that the lower courts

were wrong, its decision so holding was

not a new rule of law for purposes of

Teague. However, in view of the lower

courts’ unanimity regarding the apparent

meaning of the Court's earlier cases,

defense counsel could not fairly be

expected to have anticipated the

possibility of such a holding.

13

In this setting, the Court's

recognition that the legal foreclosure of

Mr. Selvage's pre-Penry claim at the time

of his trial constitutes “cause” for not

raising it would not vitiate the doctrine

of procedural default, as the State and

its Amicus extravagantly assert. It would

fully observe the principle of comity

because the Texas courts were given

abundant opportunity to consider, and they

consistently rejected, challenges to the

Texas practice such as later prevailed in

Penry.- It hardly matters, from the

standpoint of comity or practicality,

whether those challenges were rejected

four or forty times prior to Selvage's

trial. The result -- that the Texas

courts were firmly committed to the view

that Jurek and Lockett sanctioned the

Texas practice -- was unmistakably the

14

Thus, the real effect of the State's

and its Amicus' arguments on this point is

to require that the state courts be

persistently dunned with federal claims

that they have thoroughly rejected. This

would not further comity, but frustrate

it. A state court's capacity to

participate in the development of federal

constitutional law as a partner in the

federal system would be impeded if it were

forced to hear continually the same

federal arguments-that it had conclusively

rejected. Rather than state courts being

eventually persuaded by a continuing

stream of claims, as the State argues, the

~ourts would more likely stop paying any

serious attention to the claims, since

"(le)}gal contentions, like the currency,

tend to depreciate with over-issue."

Jones v. Barnes, 463 U.S. 745, 752

15

(1983) (quoting Justice Jackson). As a

result, when that perfectly pitched case,

whose facts "could clarify the gist of the

claim," did come across the plate, the

state courts would be too numbed to hit

upon the latent constitutional violation

embedded within the challenged state

practice.

And there would be no way for the

state courts to convince defense counsel

to stop raising such claims, since

procedural default would be the price paid

for stopping. Cautious counsel would not

opt for such a gamble, but would burden

state trial and appellate proceedings with

every federal claim imaginable that could

be premised upon a Supreme Court decision

that the state courts had distinguished--

or, indeed, as here, had relied upon--

in denying relief in past cases. Nor

would the state courts be the only losers

16

ss ey

if such a practice were required. Defense

counsel could no longer exercise

professional selectivity in choosing their

Claims, but would be compelled to file

"brief(s) that[(,] by rais{ing) every

colorable issue{,] run{] the risk of

burying good arguments ... in a verbal

mound made up of strong and weak

Jones_v. Barnes, 463 U.S.

contentions."

at 753.

It is entirely consistent with Engle

to recognize that in situations where a

state's courts have repeatedly read prior

decisions of this Court as sanctioning a

particular state practice and where there

is no source of support for a contrary

view in other jurisdictions, a responsible

lawyer can quit challenging the practice.

Under these circumstances, the legal

foreclosure of a claim must be regarded as

a legitimate ground of "cause" for failing

17

to raise the clain. Any other holding

would be a serious disservice both to the

efficiency and integrity of state court

proceedings and to criminal defendants

with potentially meritorious claims.

III. MR. SELVAGE HAS

DEMONSTRATED THAT THE

PENRY ERROR IN HIS

TRIAL INVOLVES A

FUNDAMENTAL

MISCARRIAGE OF JUSTICE

A. Penry Error Is A Denial Of Basic

Trial Process |

The State does not take serious issue

with Mr. Selvage's submission that one who

is deprived of a component of a basic

trial process, can, on that account alone,

demonstrate a fundamental miscarriage of

justice. Rather, the State argues that

Penry error does not arise to the denial

of a basic component of a capital trial.

The State can advance this argument only

by mischaracterizing the sente..-ing

process at Mr. Selvage trial.

18

The right protected by Penry is the

right to an individualized determination

of sentence. Under settled Eighth

Amendment principles, "[(o]nce the jury

finds that the defendant falls within the

legislatively defined category of persons

eligible for the death penalty" -- which

in Texas occurs upon conviction of capital

murder, see Lowenfield v. Phelps, 98

L.Ed.2d 568, 582 (1988); Zant v. Stephens,

462 US. 862, 875-76 n.13 (1983) -- '"the

jury's choice between life and death must

be individualized." California v. Ramos,

463 U.S. 992, 1008 (1983). The Court has

emphasized time and again that this

individualized determination is "a

constitutionally indispensable part of the

process of inflicting the penalty of

death." Woodson _v. North Carolina, 428

U.S. 280, 304 (1976). See also Sumner v.

Shuman, 483 U.S. 66, 73-76 (1987). “What

19

is important... is an individualized

determination on the basis of the

character of the individual and the

circumstances of the crime." Zant v.

Stephens, 462 U.S. at 879 (emphasis in

original). When Mr. Selvage's jury could

not, under the instructions given,

consider and give effect to the evidence

that he was drawn into crime by his

addiction to heroin and that he was not

the killer, he was denied an

individualized determination of his

sentence. See Mills v. Maryland, 100

L.Ed.2d 384, 394 (1988), and cases cited.

Thus, he was denied something far more

fundamental than access to defensive

evidence, see Respondent's Brief at 57,

referring to Murray v. Carrier, 477 U.S.

478 (1986): he was denied consideration of

the only real issue presented at the

sentencing stage of his trial.

20

The State tries to mask this denial

by treating it as the failure to give

supplemental sentencing instructions

allowing the jury to consider Mr.

Selvage's mitigating evidence. It says

that Mr. Selvage was to blame for not

requesting such an instruction, which, it

asserts, was available under state law.

See Respondent's Brief, at 57. Since Mr.

Selvage had access to a procedure through

which he could have claimed his right to

individualized sentencing, he cannot

complain that the State deprived him of

the basic trial process which must be

afforded to a capital defendant.

This reasoning, which is strikingly

reminiscent of the long-repudiated logic

of Frank v. Mangum, 237 U.S. 309 (1915),

falls with its premise. For it is sheer

fantasy to suggest that if Mr. Selvage had

only asked for a supplemental instruction

21

overriding the limitations of Texas’

special-issue formulations, he would have

gotten such an instruction or relief from

its denial on appeal. Until Penry was

announced, the Texas Court of Criminal

Appeals had always held that capital

defendants were not entitled to such

supplemental instructions because they

were deemed unnecessary to assure the

constitutionally requisite consideration

of mitigating evidence. See Petitioner's

Brief at 60-65. Thus, even if, as the

State says, the Court of Criminal Appeals

never ruled that “a trial court's giving

of such an instruction [would] be

erroneous," Respondent's Brief at 56, no

capital defendant could argue to a trial

judge that he or she was entitled to the

instruction. While the State implies that

such instructions were to be had for the

asking, it cites no cases in which any

22

Texas judge actually gave one.

Texas law is absolutely clear that if

Mr. Selvage had requested supplemental

instructions, he would not have been

entitled to them. See, e.g., Quinones v.

State, 592 S.W.2d 933 (Tex. Cr. App.

1980). It was Texas law, not Mr.

Selvage's own doing, that deprived him of

a basic component of the constitutionally

required capital trial process.

B. The Standards Proposed By The

The State, joined by its Amicus

Curiae, argues that a capital defendant

can establish that he or she is "innocent"

of the death penalty, and is thus a victim

of a fundamental miscarriage of justice,

only if decth wee on impermissible

penalty as a matter of federal or state

law. Accordingly, a defendant would be

23

innocent of the death penalty if he or

she: was a non-triggerperson who neither

intended to kill nor acted with reckless

disregard for human life while

participating significantly in a felony

murder, see Enmund v. Florida, 458 U.S.

782, 797 (1982); Tison _v. Arizona, 481

U.S. 137, 157-58 (19287); is incompetent at

the time of execution, Ford v.

Wainwright, 477 U.S. 399 (1986); was under

16 at the time of the crime in a state

without a legislatively-established

minimum age for capital sentencing,

Thompson _v. Oklahoma, 101 L.Ed.2ad 702

(1988); has severe or profound mental

retardation, Penry v. Lynaugh, 106 L.Ed.2d

256 (1989); or, in Texas, could not be

found beyond a reasonable doubt to have

committed the murder deliberately (under

special issue one) or to present a threat

of future dangerousness (under special

24

issue two). In the alternative, the State

argues that if the Court rejects the

preclusion-of-death-as-a-matter-of-law

test, a petitioner

would have to

demonstrate the

existence at the time

of trial of mitigating

evidence so

compelling that no

rational factfinder,

properly instructed

and viewing all of the

reliable evidence in

existence at the time

of the trial, could

have concluded that a

death sentence was

appropriate.

Respondent's Brief at 52.

Neither of these tests has any

support in the prior decisions of the

Court. And Murray v. Carrier would have

to be overruled in part to accept either

of then.

For a habeas petitioner to establish

a fundamental miscarriage of justice at

the guilt phase, Carrier requires the

25

—

petitioner to show only that a

"constitutional violation probably has

resulted in the conviction of one who is

actully innocent...." 477 U.S. at 496

(emphasis supplied). This test does not

require the petitioner to show that,

absent the constitutional error, the jury

could not legally have convicted him or

that no rational juror could have found

guilt established beyond a reasonable

doubt. The Carrier standard is one of

probability, not preclusive certainty.

Thus, when Carrier's concept of

innocence is utilized in connection with a

capital sentencing proceeding, it cannot

be limited to cases in which, in the

absence of constitutional error, the death

penalty could not legally have been

imposed or "no rational factfinder ...

could have concluded that a death sentence

was appropriate," Respondent's Brief at

26

52. Indeed, in connection with Leckett or

Penry error, there can be no such cases.

The determination that a capital defendant

is death-eligible is necessarily a

determination that the death sentence is

within the range of sentences that a

rational sentencer could impose. See Zant

Von Stephens, 462 U.S. at 877

(determination of death-eligibility

“reasonably justif{ies] the imposition of

@ more severe sentence on the defendant

compared to others found guilty of

murder"); California v. Ramos, 463 U.S.

at 1008 ("[(o)jnce the jury finds that the

defendant falls within the legislatively

defined category of persons eligible for

the death penalty, ... the jury then is

free ... to determine whether death is the

appropriate punishment"). After finding a

defendant death-eligible, the sentencer

must consider all relevant mitigating

27

evidence, Eddings v. Oklahoma, 455 U.S.

104 (1982), but it is never required to

give any particular weight to the

mitigating evidence. [d. at 114-15, 117.

Simply put, following a finding of death-

eligibility, there can be no state of the

evidence which precludes death --- ji.¢@.,

in which no rational sentencer could

choose the death sentence.

The State argues from the perspective

of its proposed preclusion standard that

Mr. Selvage has not shown that he is

innocent of the death penalty. However,

when the evidence is gauged by the Carrier

standard -- whether the constitutional

error probably produced a death sentence

that would not have been imposed without

it -- Mr. Selvage has adequately

established his innocence of the death

28

penalty.

In answer to special issue number

one, the jury found that sr. Selvage

deliberately participated in the crime

which led to the death of Deputy Garza.

There was evidence that mr. Selvage

participated in the planning of the

robbery and that he actively participated

in the robbery. However, there was no

eviden.e that the murder which occurred

during the robbery was planned or

specifically contemplated. Moreover,

there was no evidence that Mr. Selvage

committed the murder. To the extent

there was any doubt about this, the

evidence pointed heavily toward Wilbur

Kelly as the killer. To be sure, Mr.

Selvage carried a gun, threatened the

robbery victims with it, and fired his gun

in the course of the gun battle that

erupted after Wilbur Kelly shot Deputy

29

Garza. However, he did not kill or injure

anyone. Thus, although he engaged

actively in the crime, his personal moral

culpability was for robbery and

aggravated assault, not for an actual,

deliberate murder. Had the jrvry been

permitted to consider the degree of his

involvement in the murder as mitigating,

it would probably have seen his

culpability as calling for life rather

than death. %

8 There is substantial corroboration

for this conclusion in the reported data

concerning prosecutorial decisions to seek

the death penalty and sentencing juries'

decisions to impose it. , In = er

re-Furman jury sentencing decisions, for

ponte —y Ry-¥ Woodworth, Pulaski, and

Kyle reported that the average death

sentencing rate for single-victim cases in

which the defendant killed the victim was

.50 (82 death sentences imposed in 165

cases). Baldus, Woodworth, Pulaski &

Kyle,

of Death: A__Quansitative

, 33 Stan. Le Rev. 1, 44-46

(1980). In contrast, the death-sentencing

rate for cases in which the defendant was

not a killer was only .08 (4 death

sentences imposed in 52 cases). Id. In

30

two post-Furman studies of death

sentencing rates in Georgia by Baldus and

his colleagues, which examined the

combined effects of prosecutorial and jury

decision-making, the results were quite

similar. In cases where the defendant

killed the victim in the course of

committing a serious offense, the death

sentencing rate was .46 (68 death

sentences imposed in 147 cases) compared

to .15 (19 death sentences imposed in 61

cases) where the defendant was not the

killer but was a participant in the

contemporaneous offense. Baldus, Pulaski

& Woodworth, Comparative Review of Death

» 78 eo Gee. be &

Criminology 661, 686-87 (1983). Finally,

in a different analysis of the Georgia

data, Baldus and his colleagues examined

cases in which the murders were classified

as “vile” and in which the victim was a

stranger to the defendant(s). In these

cases in which the killing was deliberate,

the death sentencing rate was .81 (59

death sentences imposed in 73 cases) for

cases in which the certainty of the

deliberateness of the killing was "medium"

and .88 (7 death sentences imposed in 8

cases) where the certainty was "high." By

contrast, where the certainty of

deliberateness of the killing was "low"--

a category which included accomplices who

did not kill -- the death sentencing rate

was only .29 (6 death sentences imposed in

21 cases). Baldus, Woodworth & Pulaski,

Georgia, 18 U.C. Davis L. Rev. 1375, 1395

31

In answer to special issue number

two, the jury found that Mr. Selvage

presented the possibility of future

dangerousness. Mr. Selvage had been

convicted of two previous crimes and had

attempteu to escape from a New Orleans

jail. Just four days before the Ventura's

robbery, he had participated in another

robbery with Wilbur Kelly, during the

course of which Kelly had also killed

someone. Further, Selvage was an addict,

driven by his addiction toward crime and

so afflicted by drugs and an underlying

mental illness that he could not pull

himself out of the criminal activity into

which he had fallen. There was plainly a

possibility of “uture dangerousness.

However, the aggravating weight of

future dangerousness was offset by two

mitigating factors. First, Mr. Selvage's

(1985).

32

ability to make considered, reality-based

judgments during the course of the crimes

was very seriously impaired by mental

illness and drug consumption. As a result

of his disabilities, he was extremely

paranoid: he often misperceived simple

gestures as threats and reacted self-

protectively and violently. His future

dangerousness was thus not driven so much

by meanness of spirit as by physical and

mental impairment.? Second, Mr. Selvage's

disabilities were and are potentially

responsive to therapeutic intervention.

Thus, the conditions which concededly made

him a future danger could be alleviated or

at least diminished. For these reasons,

9 The State takes issue with some of

the evidence proffered by Mr. Selvage

concerning the severity of his mental

illness at or near the time of the crime.

If the resolution of this dispute becomes

material to the Court's ruling, the

dispute should be resolved by a remand for

appropriate factfinding proceedings in

the district court.

33

Mr. Selvage's jury, if permitted to do so,

probably would have tempered its finding

of possible future dangerousness,

recognized the less culpability he bore

for his criminal behavior, and struck the

balance in favor of a life sentence.

Respectfully submitted,

JULIUS L. CHAMBERS

*RICHARD H. BURR, III

GEORGE H. KENDALL

STEVEN W. HAWKINS

99 Hudson Street, 16th Fl.

New York, New York 10013

(212) 219-1900

DAVID CUNNINGHAM

1927 Norfolk

Houston, Texas 77098

(713) 520-7701

: lL for petiti

*Counsel of Record

24