# Reply Brief — Selvage v. Collins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1481%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 108

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1481%3A09. Public record. Not legal advice.