# Amicus Curiae Brief — Payne v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 808 ## Text No. 90-5721. F Suprema Court, U.S. D In Tue Supreme Court of the United sthtes ‘9°! Ocroser Term, 1990 OFFICE OF THE CLERK PERVIS TYRONE PAYNE, Petitioner, v STATE OF TENNESSEE, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF TENNESSEE BRIEF OF AMICUS CURIAE, STATE OF CALIFORNIA, Joined by the States of Alabama, Arizona, Colorado, Connecticut, Florida, Indiana, Kentucky, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota and Washington, in support of the State of Tennessee, Respondent. Danig E. LUNGREN, Attorney General of the State of California GEORGE WILLIAMSON, Chief Assistant Attorney General - Criminal Division Har.ey D. MAYFIELD, Senior Assistant Attorney General FREDERICK R. MILLAR, JR. Supervising Deputy Attorney General Louis R. HANoIAN Deputy Attorney General 110 West A Street, Suite 700, San Diego, California 92101 Telephone: (619) 237-7281 Counsel for Amicus Curiae State of California i QUESTION PRESENTED I. Should Booth v. Maryland, 482 US. 496 (1987), and South Carolina v. Gathers, 490 US. 805 (1989), be overruled? as eT >: -ii- TOPICAL INDEX QUESTION PRESENTED i INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 3 ARGUMENT 5 BOOTH V. MARYLAND AND SOUTH CAROLINA V. GATHERS SHOULD BE OVERRULED BECAUSE THE IMPACT OF A CAPITAL CRIME ON THE VICTIM, THE VICTIM’S SURVIVORS AND SOCIETY IS PROPERLY CONSIDERED IN DETERMINING WHETHER DEATH IS THE APPROPRIATE PUNISHMENT 5 A. The Punishment Should Fit The Crime 6 B. The People Have A Right To A Balanced Penalty Proceeding 10 ————— SC hr Cc cere err CC —_ -iii- TOPICAL INDEX (cont’d) Pages C. Evolving Societal Standards Allow Victim Impact 14 D. The Confusion Caused By Booth and Gathers Justifies Overruling Those Decisions 16 E. The Concerns Underlying The Booth Decision Did Not Warrant The Establishment Of The Rule Nor Do They Support Its Retention 17 1. Victim Characteristics 17 2. Defendant’s Intent 19 3. Defendant’s Inability to Rebut Victim- Impact Evidence 21 4. The Mini-Trial 21 CONCLUSION 23 -jv- TABLE OF AUTHORITIES CASES Page Booth v. Maryland (1987) 482 U.S. 496 5, 7-9, 12-17, 20, 21, 23 Coker v. (1977) 433 U.S. 584 10 Eddings v. Oklahoma (1982) 455 U.S. 104 11 Enmund v. Florida (1982) 458 U.S. 782 8, 10 Fay v. New York (1947) 332 U.S. 261 11 Furman v. (1972) 408 U.S. 238 8, 23 Gardner v. Florida (1977) 430 U.S. 349 21 Gregg v. Georgia (1976) 428 US. 153 6, 7, 14, 23 Jackson v. Denno (1968) 378 US. 368 11 Lockett v. Ohio (1978) 438 U.S. 586 11, 22 -V- TABLE OF AUTHORITIES - Continued McGautha v. California (1971) 402 U.S. 183 Mills v. Maryland (1988) 486 U.S. 367 Murray v. Giarratano (1989) 492 US. __—- [106 L.Ed.2d 1] People v. Clark (1990) 50 Cal.3d 583 People v. Harris (1984) 36 Cal3d 36 People v. (1988) 45 Cal.3d 548 Roberts v. Louisiana (1977) 431 U.S. 633 Sawyer v. Smith (1990) 497 US. __—‘ [111 L.Ed.2d 193] Skipper v. South Carolina (1986) 476 US. 1 Smith v. Murray (1986) 477 U.S. 527 Snyder v. Massachusetts (1934) 291 U.S. 97 Page 21 11 11 -Vvii- TABLE OF AUTHORITIES - Continued Zant v. (1983) 462 U.S. 862 CONSTITUTIONAL PROVISIONS California Constitution Article I, § 28 Article I, § 28, subd. (a) Eighth Amendment Fourteenth Amendment Proposition 8 STATUTES California Evidence Code § 350 § 351 § 352 California Penal Code § 190.2, subd. (a , § 190.2, subd. (a)(9 § 190.2, subd. (a)(11 § 190.2, subd. (a i) § 190.2, subd. (a § 190.3, subd. (a § 1191.1 Federal Rules of Evidence rule 403 Page 8, 18 INTEREST OF AMICI CURIAE Society in general and legislative bodies in particular have a significant interest in defining the bases upon which criminal defendants will be punished. All states attempt to make the punishment fit the crime and the offender. In California, as in other jurisdictions with capital punishment, the circumstances of the crime are a proper subject of evidence and argument in the penalty phase. They help define the extent of harm caused by the defendant. However, the harm caused by a capital murder extends beyond the historical circumstances of the offense. Society is injured and the survivors of the victim are harmed as well. Amici have an interest in i that the Constitution is not interpreted to preclude the full extent of the harm caused by a murderer to be considered by a penalty phase jury. The Court’s decisions in Booth v. Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490 US. 805 (1989), limit use of victim-impact evidence in a capital trial. The Court has severely restricted the jury’s consideration of aspects of the crime that deserve consideration in determining whether death is the appropriate punishment, by prohibiting the prosecution from establishing all relevant evidence for determining penalty. The result has tipped the scales of fairness against the State. The contrast can be seen in the decisions of the California Supreme Court which have consistently followed the broad definition given defense mitigating evidence in cases such as Lockett v. Ohio, 438 U.S 586, 604 (1978) (plurality), going so far as to rule it was pp et ely te alg om ty me yee | -2- Additionally, amici have an interest in the establishment of clear and workable constitutional rules. The rule in Booth has engendered considerable confusion cosets of tae anus Wak na tes tie eoees bo this case as Booth error, decisions like Carrera would be vulnerable to attack in federal habeas corpus. Expansive interpretations of Booth have been advocated by counsel for capital defendants. In People v. Karis, 46 Cal.3d 612, 640, 641 (1988), the defendant argued Booth precluded testimony in tion by a victim of a prior offense committed by defendant on the Gendt ae a a a the victim’s family was inflammatory Court rejected this contention on the ground the impact of a capital defendant’s crimes on the victims of those crimes is relevant to the penalty determination. (Id., at p. 641.) Yet, similar testimony was found improper in People v. Boyde myn Ay bag 249 Califia, fn. 5. (aff'd on Gitereat spoents Bev California, US. Co wy 316)); oa ae Peake ‘v. Clark, 50 612, 629 (1 ) (admission of evidence of victim-impact held to be erroneous, but harmless, even supra, 490 U.S. =. 813 3 (O'Connor Connor, J., dissenting); State v. = iain 553 N 1070 (Ohio 1990) (Moyer : g 5 1 gE ifferently demonstrates the uncertainty of the law in this area.").) SUMMARY OF ARGUMENT A fundamental precept of justice is that the punishment fit the crime. (Weems v. United States, 217 US. 349, 367 (1910).) In this country, that principle has been expanded to allow the punishmént to fit the crime and the offender. (Williams v. New York, 337 US. 241, 247 (1949).) The ’s decisions in Booth and Gathers is never fully defined. Absent full definition of the harm caused by defendant’s actions, his or her "blameworthiness” cannot be assessed. 4 criminal justice Booth has relegated the victim of a capital crime to a faceless, undifferentiated mass contrary to evolving standards of decency. (See, Trop v. Dulles, 356 U.S. 86, 101 (1958).) Since is contrary to contemporary standards, too should serve as a basis to abandon its The considerable confusion created by Booth serves as another basis for overruling the decision. (Vasquez v. Hillery, 474 US. 254, 266 (1986).) In footnote 10 of the opinion, the Court stated there could be situations where victim impact evidence was admissible because it related directly to the circumstances of the offense. (Booth v. Maryland, supra, 482 US. at p. 507, fn. 10.) Yet, in Gathers the Court held it was error for the prosecutor to argue personal characteristics of the victim which were ly admitted in evidence. (Gathers, supra, 490 U.S. at pp. 811-812.) Moreover, as noted in Justice O’Connor’s dissent in Gathers, states have had great difficulty understanding and applying the Booth rule. (Gathers, supra, 490 US. at p. 813 (O’Connor, J. dissenting).) The of the Booth decision do not justify retention of the rule. Contrary to the assumption in Booth, the harm to society may be greater depending upon the characteristics of the victim. The murder of a police officer, parent or child harms society more than the murder of a drug dealing child molester. Although a murderer may not intend to kill to harm society or the victim’s survivors, his or her intent is not the only consideration in deciding the appropriateness of the death penalty. (See, Tison v. Arizona, 481 US. 137, 150-151 (1987) (“reckless indifference" to human life sufficient mental state to impose the death pe )-) While the decision whether to victim impact evidence prove a tactical problem for a defendant, such difficulty does not constitute sufficient reason to create or retain the exclusionary rule of Booth -5- so long as the defendant is allowed an opportunity to rebut the evidence. (See McGautha v. California, 402 US. 183, 213 (1971).) Finally, the concern that victim impact information will create distracting “mini-trials" is based on a false assumption, that is, that victim impact evidence is irrelevant. If the legislative body determines such evidence is relevant to the penalty determination, its consideration is not the least bit di Consequently, amici submit Booth and Gathers should be reexamined and overruled, as an incorrect statement of Eighth Amendment requirements. BOOTH VY. MARYLAND AND SOUTH CAROLINA V. GATHERS SHOULD BE OVERRULED BECAUSE THE IMPACT OF A CAPITAL CRIME ON THE VICTIM, THE VICTIM’S SURVIVORS AND SOCIETY IS PROPERLY CONSIDERED IN’ DETERMINING WHETHER DEATH IS THE APPROPRIATE PUNISHMENT In Booth v. Maryland, 482 US. 496 (1987), the Court held it was a violation of the Eighth Amendment for a jury to consider a statutorily required victim impact statement at the sentencing a ca trial. In South Carolina v. Gathers, 490 U.S. 805 (1989), the Court applied Booth to hold it was reversible error for the prosecutor to comment about the victim’s characteristics in his argument to the jury. (Booth, supra at p. 507, fn. 10; Gathers, supra at p. 811.) Amici respectfully the Court to reconsider and overrule Booth and . The holdings in those cases are contrary to the cornerstones of criminal sentencing jurisprudence in general and capital sentencing in particular. Booth and Gathers distort the ii deprive the legislative body of the right to define what evidence a jury should consider in determining the appropriate punishment for a person convicted of a capital offense. stated, “it is a precept of justice that punishment for crime my td nay and j to offense.” (Yeems v. United States, 217 U.S. 349, 367 (1910).) The notion the punishment should fit the offender as well as the crime is of modern vintage. (Williams v. New York, 337 US. 241, 247 (1949).) Until Booth, severity of the crime remained a legitimate basis upon which to analyze the excessiveness of a particular sentence. (Gregg v. Georgia, 428 U.S. 153, 173 (1976) (Opinion of Stewart, Powell, and Stevens, JJ.).) re is nothing inherently contradictory in fitting punishment to the crime and the 1In Act II of Gilbert and Sullivan’s The Mikado, Cicero’s axiom is restated: "My object all sublime *] shall achieve in time— "To make the punishment fit the crime." ~7a an Society permits the ultimate punishment because Se ee nee So ae ae < the offense. Capital punishment is an expression of society’s moral outrage at offensive conduct. ¢ v. ia, , 428 US. at p. 183 (opinion of tewart, Powell, and Stevens, JJ).) Palbaeneat which fits the crime is inherent in an ordered society. "The instinct for retribution is part of the nature of man, and channeling that imstinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to 2Booth recognized this proposition in footnote 12. (Booth, supra at p. 509, fn. 12.) Although it expressed no opinion on the use of victim impact information in contexts other than capital cases, the Court recognized the widespread use of victim information in such cases. Thus, the sentencing process in virtually all jurisdictions allows the sentencing authority to impose a punishment which fits both the crime (with full knowledge of the extent of harm caused by the defendant) and the offender. The Court attempted to distinguish such a sentencing model from capital cases on the rationale that “death is different." Recognizing the statement as a truism, there is no legitimate reason to treat death cases differently from other criminal cases by creating a separate constitutional jurisprudence for such cases. While the Court may have good reason to examine death penalty cases closely to see that constitutional rights have not been violated, there is nothing in the Constitution which requires or allows different constitutional rules for capital cases. (See Sawyer v. Smith, 497 U.S. ___ [111 L.B4.24 193, 211-212] (1990) (same retroactivity rules apply to capital and non-capital habeas); Murray v. Giarratano, 492 US. __. [106 LEd2d 1, 10-11] (1989) (plurality) (no requirement for states to appoint counsel in state collateral review of capital cases); Smith v. Murray, 477 U.S. 527, 538 (1986) (same procedural default rules apply in capital cases as in non-capital cases).) &- believe that organized society is unwilling or unable to impose upon criminal] offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy-of self-help, vigilante justice, and lynch law." (Furman v. Georgia, 408 U.S. 238, 308 (1972) (Stewart, J., concurring).) The majority in Booth took a novel approach to the penalty equation. In analyzing the jury's nalty phase task the Court referred to the determination whether a capital defendant should face the death penalty based on the character of the individual and the circumstances of the crime. (Booth v. Maryland, supra, 482 US. at p sea ayes, yew 462 U.S. 862, 879 (1983).) It Sunenie sesumind @ Court had never said the defendant’s sonnel, characteristics and the immediate circumstances of the crime were the only permissible sentencing considerations. However, other factors must be scrutinized to ensure the evidence has some bearing on defendant’s “personal responsibility and moral guilt.” (Booth, supra at p. 502; Enmund v. Florida, 458 U.S. 782, 801 (1982).) The majority viewed evidence concerning the victim and the impact of his/her death on iving family members and society in general to be irrelevant in assessing the "blameworthiness of a particular defendant" and held, subject to narrowly defined exceptions, that the prosecution may not introduce such evidence before a SS (Booth, supra at pp. 504, 507, fn. 10.) Court spotlighted the defendant to the exclusion of the circumstances and consequences of the crime. This view of the process is distorted and must be brought back into focus. The majority’s conclusion seems to be more a subjective conclusion about probative value than one supported by Eighth or Fourteenth Amendment of ine for not shared a similar loss." G , Supra . 515 (White, J., dissenting); see too, id. at p. 519 Scalia, J., dissenting); Gathers, supra, 490 U.S. at p. 814 O’ , J., dissenting); ot v. Maryland, 486 US. np damage actions fulfills the policy of fitting the punishment to the j The i allowed to fully define the crime so the jury may assess the relative “blameworthiness” of the defendant. In a pea} ape in State v. Huertas, 553 N.E.2d 1058 (Ohio 1990), a case wherein certiorari was origi granted by the Court and subsequently dismissed January 22, 1991, (Ohio v. Huertas, 498 US. [112 LEd.2d 837]), Justice Resnick of the Ohio State Supreme Court 7In his dissent in Gathers, Justice Scalia discussed the underlying basis of the Booth decision and concluded: “Booth has not even an arguable basis in the the harm caused by criminal acts in asscesing responsibility. The Court’s opinion in Booth, like today’s opinion, did not even try to assert the contrary. We provide far greater reassurance of the rule of law by eliminating than by retaining such « decision." (Gathers, supra, 490 US. at p. 825 (Scalia, J., dissenting).) —s -10- stated: "(T]he conscience of the community cannot properly be expressed if the sentencing authority lacks knowledge of the effect the defendant's crime had on the community and especially the family, friends and associates of the victim." States v. Huertas, supra, 553 N.E.2d at p. 1072 esnick, J., dissenting).) This Court should not preclude the sentencing authority from considering the whole of the loss.‘ The Constitution does not require the limited approach of Booth. B. The People Have A Right To A Balanced Penalty Proceeding Another cornerstone of criminal jurisprudence is the view that both sides are entitled to due process of “In fact, analysis of the loss is mandatory in capital cases. Capital punishment may not be inflicted for certain crimes because those crimes do not possess the necessary degree of injury to the person and the public. (Coker v. Georgia, 433 U.S. 584, 598 (1977) (opinion of White, J.) (rape of adult woman); Ennund v. Florida, supra, 458 U.S. 782, 797 (armed robbery).) However, notwithstanding the defendant’s mental! state, the death penalty may be constitutionally imposed on the actual killer based on the fortuity that a crime victim dies. (Tison v. Arizona, 481 U.S. 137, 148 (1987) (robbery-murder).) Victim impact does make a difference. Furthermore, if the consequences of a crime to the immediate victim are relevant to punishment, the Constitution must not prohibit a State or Congress from attaching significance to the impact of a murder on surviving family members or socicty. Young Nicholas Christopher was as much a victim as his dead mother and sister. The impact of this crime on Nicholas should not be deemed irrelevant in the constitutional sense. a Lt law. Justice Cardozo stated for the Court: "But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." (Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).) This Court has repeatedly upheld the People’s right to due process. In Fay v. New York, 332 US. 261 Sn res nee es ee en ee a friendly jury, the Court Pp- loopholes for the guilty to go free, en a ae ee eee oe U.S. 368 (1968).) In United States v. Nixon, 418 US. 683 (1974), a unanimous Court found the very integrity of the judicial system depended upon full access to evidence by either side. (United States v. Nixon, supra at p. 709.) The lesson is clear: hearings wherein only one side is entitled to — evidence and argument are antithetical to simple The Court has consistently required a pate phase jury be allowed to consider a wide information concerning the background of the donee, The sentencer may not be precluded from considering, as a mitigating factor, any aspect of the offense or a defendant’s character or record that the defendant proffers as a basis for a sentence less than death. (Lockett v. Ohio, 438 U.S. 586, 604 (1978) Peay Ek see also Skipper v. South Carolina, 476 US. 1 (1 v. Oklahoma, 455 U.S. 104 (1982).) MA for example, the California Supreme held it was error to exclude a defendant’s poetry because it constituted -12- mitigation. (People v. Harris, 36 Cal.3d 36, 67-71 (1984) (plurality).) caring get her life in order. Payne’s friend offered that he was not an abuser of drugs or alcohol and it was inconsistent with his character to have committed these offenses. Payne’s parents both testified to his good character and a clinical psychologist testified Payne was “mentally handicapped.” (State v. Payne, 791 S.W.2d 10, 17 (Tenn. 1990).) In contrast, the State asked a single question about the effect Payne’s crime had on Nicholas Christopher, who was himself a victim of Payne’s brutality. This, petitioner claims, constituted the >The following question serves as the basis for petitioner's claim: *Q. Ms. Zvolanek [Nicholas’s grandmother], how has the murder of Nicholas’s mother and sister affected him? "A. He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandma, do you miss my Lacic. (coatinued...) -13- violation of Booth. The Tennessee S me Court below characterized the inequity of and Gathers by stating: "It is an afront (sic) to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims." (State v. Payne, supra, 791 S.W.2d at p. 19.) Another example clearly illustrates the unfairness of the current rule. A defendant may introduce testimony from a member of the victim’s family, who for religious or other reasons, urges the jury to spare defendant’s life. Trial courts feel compelled under Lockett and Skipper to allow such testimony. However, should the prosecution wish to rebut such testimony with victim impact evidence from other family members who spare (even without expression of their opinion on the question of punishment), such evidence may be inadmissible under The Court should permit the States and to allow each party an equal opportunity to address the issue Of appropriate punishment. If the penalty is constitutional, as the Court has repeatedly held, it cannot be unconstitutional to permit the pros and cons in the case to be heard. (Booth, supra, 482 US. at particular pp. 520-521 (Scalia, J., dissenting).) a ma‘) : (Trop v. Dulles, 356 US. 101 (1958) — of Warren, CJ.); Gregg v. Georgia, supra, 428 US. at p. 173 (opinion of Stewart, Powell, and Stevens, JJ.).) Whether by legislation or initiative, numerous states and the federal government have provided a mechanism whereby victims of crime and their families have a place in the criminal justice system. (See, Booth, supra at p. 509, fn. 12.) On June 8, 1982, the People of the State of California amended the state constitution by passing Proposition 8, "The Victims’ Bill of Rights." (Cal. Const, art. I, § 28) In article I, section 28, subdivision (a), the California Constitution now reads: "The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern. "The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and 4 This legislative change is a response to a perception by society that the criminal justice system has and those all the while ignoring the rights of th> victim. holding in Booth and its application in Gathers is the ultimate slap in the face to relegating them to objects of is in violation of standards of decency. Consequently, evolving community standards cut strongly in favor of the elimination of Booth and Gathers. : Hy where students and staff have the right to be safe and secure in their persons. "To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people’s lives." California Penal Code section 1191.1 is a consequence of 8. Section 1191.1 gives a crime victim, or certain members of the victim’s family if the victim is a child or deceased, a right to attend and be heard at criminal sentencing proceedings in non-capital cases. (See, People v. Siripongs, 45 Cal 3d 548, 585- 586, (1988) fn. 12.) As recognized by the Court in Booth, the vast majority of States and the federal government have legislation which permits the use of victim impact information in some contexts. (Booth, supra, 482 US. at p. 509, fn. 12.) Without question, society has evolved to the point where victims have rights in the criminal justice system. in Gathers refused to uphold comments by the prosecutor -17- an example of the confusion caused by Booth. Chief Justice Moyer of the Ohio Supreme Court stated, "The fact that the majority and two dissenters in this case all interpret the opinions and footnotes in Booth and Gathers differently demonstrates the uncertainty of the law in this area." (State v. Huertas, supra, 553 N.E.2d at p. 1070 (Moyer, CJ., concurring).) Justice O’Connor’s dissent in Gathers presented additional examples of the confusion begat by Booth. (Gathers, supra at p. 813 (O’Connor, J., dissenting).) Another graphic example is provided by the California Supreme Court, which held it was error (albeit harmless) to admit evidence of the impact of a murder on the victim’s family where the victim was killed because the defendant wanted the victim’s wife to suffer because of her professional status and professional relationship with the defendant. (People v. Clark, 50 Cal.3d 583, 612, 629 (1990).) The inability to accurately define the rule has caused lower courts to give an overly expansive meaning to Booth which makes rational application of the rule perplexing, if not impossible. A rule of constitutional law which breeds confusion or peculiar results should be overruled. (Vasquez v. Hillery, 474 U.S. 254, 266 (1986).) Booth created such a rule. 1. Victim Characteristics The Booth Court was troubled by the implication that defendants whose victims were “assets” to their community are more deserving of punishment than those whose victims are perceived to be less worthy. (Booth, supra, 482 US. at p. 506, fn. 8.) To the extent the Court was concerned a -18- sentencing body would be encouraged to rely on unconscionable factors such as race, religion or political affiliation of the victim in the sentencing decision, such concern is unwarranted. Without question the State may not rely on such factors in determining whether the death penalty is appropriate for the same reasons the State may not urge the death penalty because of the race, religion or political affiliation of the defendant. (Zant v. Stephens, supra, 462 U.S. at p. 885; Gathers, supra, 490 US. at pp. 821-822 (O’Connor, J., dissenting).) to the majority’s analysis in Booth, there is reason to conclude some murders are more harmful to another, more concrete level, the harm and di society may be greater depending upon who is For example, the harm to society by the the President of the Uni Q, sags “Tee Qagsg i - even though both murders were premeditated and carried out under identical circumstances. Additionally, under California law the status of the victim is an element of many special circumstances ’This situation differs from a statute which allows imposition of the death penalty where the defendant commits an intentional killing because of the victim's race, color, religion, national origin or other similar factor. (See, Cal Pen. Code, § 190.2, subd. (a)(16).) Another concern of the Booth majority pertained to blameworthiness as it relates to the defendant’s inten ee Ue ent 9 a ine a tl Mage Bl Hn ie ree -20- victim do not relate to the defendant’s blameworthiness. (Booth, supra, 482 US. at pp. 504-505.) However, as argued ip some detail above, there is nothing that offends sensibilities by holding a murderer accountable not only for his/her state of mind, but for the full extent of harm caused. (See, Booth, supra at p. 516 (White, J., For example, though they share identical intents, one who drives while under the influence and kills Saige ant Gctutuss puakiunest Gaylene whe chugly by my ee et Given trier compelling reason why a should not be allowed to consider such harm to occur, he may his lack of intent as a circumstance in mitigation. However, intent to harm is not a predicate for aggravation. FEL if ih tate aE santas ils ULAR HLT ee eae al 2 pe ep eee ate ~~ Bit be a i i ' ut confusing the issues, or misleading the jury. (Cal Evid. Code, § 352; see, Fed. Rules of Bvid., rule 403.) tne Petit ‘ rf ih a4 le alli i! nal ip r fH it le TUTE . yates | whe ‘ HH aie i AH Sls yl Hil Th 1 a AeA isl itil: rite i { PELE ui ‘ Hh i Le iF -24- “It is not without interest, also, to note that, although the several concurring opinions acknowledge the heinous and atrocious character of the offenses committed by the petitioners, none of those opinions makes reference to the misery the petitioners’ crimes occasioned to the victims, ts for the respective petitioners, particularly the oral arguments, were similarly and curiously devoid of any reference to the victims. There is risk, of course, in a comment such as this, for it opens one to the charge of emphasizing the retributive. (Citation.) Nevertheless, these cases are here because offenses to innocent victims were perpetrated. This fact, and the terror that occasioned it, and the fear that stalks the streets of many of our cities today perhaps d M (Emphasis added.) -25- DATED: April 2, 1991. LRH:lv Respectfully submitted, DANIEL E. LUNGREN, Attorney General of the State of California GEORGE WILLIAMSON, Chief Assistant Attorney General - Criminal Division HARLEY D. MAYFIELD, Senior Assistant Attorney General FREDERICK R. MILLAR, JR. 9 7 a Wei A LOUIS R. HANOIAN Deputy Attorney General Counsel for Amicus Curiae State of California SD91XU0003 APPENDIX List of the Amici Curiae State of Alabama James H. Evans, Attorney General 250 Administration Building 64 North Union Street Montgomery, Alabama 36130 State of Arizona Grant Woods, Attorney General 1275 West Was Phoenix, Arizona 85007 State of Colorado Gale A. Norton, Attorney General 1525 Sherman Street Third Floor Denver, Colorado 80203 State of Connecticut John J. Kelly, Chief State’s Attorney 340 Quinnipiac Street Wallingford, Connecticut 06492 State of Florida Robert A. Butterworth, Attorney General State Capitol Tallahassee, Florida 32399-1050 State of Indiana E. Person, Attorney General 219 State House Indianapolis, Indiana 46204 Commonwealth of Kentucky Frederic J. Cowan, Attorney General State Capitol Frankfort, Kentucky 40601 State of Maryland J. —_ Curran, Jr., Attorney General 200 Paul Place Baltimore, Maryland 21202-2021 State of Mississippi Mike Moore, Attorney General Carroll Gartin Justice Building Post Office Box 220 Jackson, Mississippi 39205-0220 State of Missouri William L. Webster, Attorney General Supreme Court Building Box 899 Jefferson City, Missouri 65102 State of Montana Marc Racicot, Attorney General 215 North Sanders Helena, Montana 59620-1401 State of Nebraska Don Stenberg, Attorney General 2115 State Capitol Building Lincoln, Nebraska 68509-8920 State of Nevada re Sue Del Papa, Attorney General pitol Complex Carson City, Nevada 89710 Columbia, South Carolina 29211 Test ‘taty 1 op 2% aut 210729 01 feiousey Aowiowy Andog NVIONVH ‘a SINQT I ‘predoid Apny o8ejsod oy} yum ‘emOgTeD ‘oSs1q ues 38 [TEU soVeIg PoUE) oy} UI poysodep pue porees usy) sem odofaaue pres (juapuodsey 103 Aoui0ny) SSPO-EPZLE Pessouuel ‘ayAyseN Aemyleg uosusqoy somes OCy [eisuen Asdioyy 2M JO 2WO Jossouua] jO 3181S [eisuayH Asuioyy jUEISIssy edpung “‘W Amey (s9u0nneg 10} Asu077) COISE sessouuay ‘sydmoy onuaAy NOD GON (ET NOSNHOf ¥ WaLLYOd ‘HOUN ‘bsq “‘wempey] syo01g ‘f “SMOTJO} SB Possomppe odojoaus ue ul sures Sutoejd Aq yuopuodsas 103 JesuNOD pue 1s9uUOnNHed 103 jesuNOD UO ‘IoyeUI Popnus-caoge oy} Ul seLIND Prury se ‘Uo\SuTyseM PUB BOF YINog ‘BUTOIeD YNog ‘erueafAsuusg ‘U0S2IO ‘ONO ‘eUTOIeD qUON ‘Aosiof MON “epeAcdN ‘BYSeIQoN “eUEUOW ‘tmosst ‘iddississtyy ‘puepArey; ‘Ayonjusy ‘euerpuy “epuo[.y Gn2HI9UUOD ‘opes0jOD ‘euoziy ‘eureqeTy jO saye3s ou} Aq poutof ‘emuoseD JO 281g 94) JO jog poyoEnE oy) jo Adoo ony & poalos oq 03 posned oy ‘661 ‘p [udy Uo sey “TOI 7% ‘BMIO;TeD ‘o3a1q| UeS ‘NOL FINS I20NS Y 189M OI St ssouppe ssoutsnq sty 1G] SOIBIS ‘SOIEIC Poul) mp JO umM0, sulsidng oy} JO Jeg 9y) JO Joquiom & ‘NYIONVH “UY SINOT ‘opuodssy AASSHNNGLL JO ALV.LS ‘rau0nhed “ANAVd ANOWAL SIAUHd IZLS-06 “ON TIVW Ad SOIAdds JO ALVOIMILaaD --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A10. 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