Reply Brief — Gilmore v. Taylor

~ ke Je OTE “our, U.S

D, FIr.EnD

FES 12 1993

No. 91-1738

i Oe |

IN THE

Supreme Court of the United States

OcTOBER TERM, 1992

JERRY D. GILMORE,

Petitioner,

Vv.

KEVIN TAYLOR,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

ROLAND W. BURRIS

Attorney General of Illinois

ROSALYN B. KAPLAN

Solicitor General of Illinois

TERENCE M. MADSEN

MARK E. WILSON

MARCIA L. FRIEDL

Assistant Attorneys General

STEVEN J. ZICK

Assistant Attorney General

Counsel of Record

100 West Randolph Street

12th Floor

Chi , Illinois 60601

(312) 814-2139

Counsel for Petitioner

Printed by Authority of the State of Illinois (P.O. 35735—60—2-12-93)

rr

~~ ,

ee

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................

EE RANSSESbGh veactccncccssvevcecess

THE “RIGHT TO PRESENT A DEFENSE” IS

TOO GENERAL A PROPOSITION TO DICTATE

A RESULT UNDER TEAGUE ...............

A.

Cases Adjudicating Issues of Federal or

State Law Cannot Dictate Results Under

the Due Process Clause ................

Cases Applying a Right to Present a De-

fense to the Elements of Crimes Never

Even Address the Much More Difficult

Question of Whether the Right Would Also

Extend to Affirmative Defenses ........

The Only Cases That Taylor Cites Finding

a Constitutional Right to Present a Defense

in the Context of a Pure Affirmative De-

fense Are Distinguishable Because Taylor

Never Offered a Correct Instruction and

Because Only Minimal Evidence Supported

Voluntary Manslaughter ................

Il.

PATTERSON COULD NOT HAVE ANNOUNCED

A PURELY PROCEDURAL HOLDING WITHOUT

RENDERING THE WHOLE WINSHIP LINE OF

CASES ARBITRARY AND IRRECONCILABLE .

11

ii

III.

IF TAYLOR HAD A STATUTORY ENTITLE-

MENT TO PRESENT A DEFENSE, HE WAIVED

THAT RIGHT BY NOT OBJECTING AT TRIAL

TO THE INSTRUCTIONS ..........00eeeeee

IV.

THE RULE ANNOUNCED IN THE CASE BE-

LOW DOES NOT QUALIFY FOR RETROACTIVE

APPLICATION UNDER THE SECOND TEAGUE

EXCEPTION ....cccccccccccscvcssssessseses

CONCLUGBION ....ccccccccvcsssesseseueennae

16

TABLE OF AUTHORITIES

CASES: PaGE(s)

Allen v. State, 97 Nev. 394, 632 P.2d 1153 (1981) . 5

Beck v. Washington, 369 U.S. 541 (1962)...... 14

Butler v. McKellar, 494 U.S. 407 (1990) ....... 2

Cabana v. Bullock, 474 U.S. 376 (1986) ....... 19

Caldwell v. Mississippi, 472 U.S. 320 (1985) ..... 2,3

Chambers v. Mississippi, 410 U.S. 291 (1973) .... 6, 20

Clemons v. Mississippi, 494 U.S. 738 (1990) ..... 19

Cleveland Board of Education v. Loudermill, 470

eee ccccceeseececeesececes 11-12

Cool v. United States, 409 U.S. 100 (1972) (per

EE EEE

6

Crane v. Kentucky, 476 U.S. 683 (1986) ....... 6

Dugger v. Adams, 489 U.S. 401 (1989) ........ 5

Eddings v. Oklahoma, 455 U.S. 104 (1982).... 7

Engle v. Isaac, 456 U.S. 107 (1982) ........... 13-15

Estelle v. McGuire, 112 S. Ct. 475 (1991) ...... 14

Estelle v. Williams, 425 U.S. 501 (1976) ....... 10

Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990) . 15

Flowers v. Illinois Dep't of Corrections, 962 F.2d

703 (7th Cir.), petition for cert. filed, 61 U.S.

L.W. 3150 (U.S. Aug. 5, 1992) (No. 92-253)... 13-16

Francis v. Franklin, 471 U.S. 1301 (1985) ..... 13

Frey v. Leapley, 931 F.2d 1253 (8th Cir. 1991) .. 4

iv

Gideon v. Wainwright, 372 U.S. 335 (1963) .... 20

Graham v. Collins, 61 U.S.L.W. 4127 (U.S. Jan.

ik GED ncanccdncdccuchduddnenesatadeduns 1

Green v. Georgia, 442 U.S. 95 (1979) (per curiam) . 7

Gryger v. Burke, 334 U.S. 728 (1948) ......... 14-15

Henderson v. Kibbe, 431 U.S. 145 (1977) ...... 10

Hicks v. Oklahoma, 447 U.S. 343 (1980) ..... 14, 16-17

Hickory v. United States, 160 U.S. 408 (1896)... 4,6

Higgins v. Wainwright, 424 F.2d 177 (5th Cir.) (per

curiam), 400 U.S. 905 (1970) ............... 10-11

Hill v. United States, 368 U.S. 424 (1962) ..... 10

Hopt v. Utah, 110 U.S. 574 (1884) ............ 4,6

Jackson v. Virginia, 443 U.S. 307 (1979) .... 3-4, 13-14

Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092

GED encecocéscdcancndeseseucuseeseensens 14

Mackey v. United States, 401 U.S. 667 (1971) .... 1, 20

Martin v. Ohio, 480 U.S. 228 (1987) ........... 13

McKoy v. North Carolina, 494 U.S. 433 (1990)... 7, 11

McMillan v. Pennsylvania, 477 U.S. 79 (1986) ... 13

Mullaney v. Wilbur, 421 U.S. 684 (1975) ...... 12-13

Naugher v. State, 685 P.2d 37 (Wyo. 1984).... 7

In re Oliver, 333 U.S. 257 (1948) ............. 5-6

Patterson v. New York, 432 U.S. 197 (1977) ... 11-13, 17

People v. Arnold, 139 Ill. App. 3d 429, 487 N.E.

2d 997 (Ist Dist. 1985) .................05- 10

People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674

TD cantecusskéeseusseonsannenbessanuen 16, 18

v

People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141

GREED ccccccvccccccccouscecccceccessoese 15, 17-18

People v. Williams, 205 Ill. App. 3d 751, 563 N.E.

2d 762 (1st Dist. 1989), appeal denied, 141 Iil.

2d 558, 580 N.E.2d 132 (1991)............. 10

Pulley v. Harris, 465 U.S. 37 (1984).......... 14

Quercia v. United States, 289 U.S. 466 (1933)... 4,6

Rock v. Arkansas, 483 U.S. 43 (1987)......... 6

Rose v. Hodges, 423 U.S. 19 (1975) (per curiam). 14

Ross v. Oklahoma, 487 U.S. 81 (1988)......... 18-19

Saffle v. Parks, 494 U.S. 484 (1990) ........... 1

Sandstrom v. Montana, 442 U.S. 510 (1979)... 7, 13

Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822

SED ehawecesudeeseccedsunssdeséecessece: 2,5

Spaziano v. Florida, 468 U.S. 447 (1984)...... 19

Spurr v. United States, 174 U.S. 728 (1899)... 4,6

State v. Miller, 186 Conn. 654, 443 A.2d 906 (1982) . 7

State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985). =—_7-8

State v. Suggs, 209 Conn. 733, 553 A.2d 1110 (1989) . 7

Strauss v. United States, 376 F.2d 416 (5th Cir.

SD scudadnccussekcoseusdiestiedesenetees 4-5

Stringer v. Black, 112 S. Ct. 1130 (1992) ...... 2

Taylor v. Kentucky, 436 U.S. 478 (1978) ....... 10

Teague v. Lane, 489 U.S. 288 (1989) .......... 1, 20

Thwing v. South Dakota, 470 F.2d 351 (8th Cir.

1972) (per curiam), cert. denied, 411 U.S. 937

ED ecusvcnecedetecdeess coubeciusecctoss 10

vi

United States ex rel. Bacon v. DeRobertis, 728 F.2d

874 (7th Cir.) (per curiam), cert. denied, 469

ee ee CE Scceecascaccesnccessencecss:

United States v. Bailey, 444 U.S. 394 (1980) .....

United States v. Blair, 456 F.2d 514 (3d Cir. 1972) .

United States v. Escobar de Bright, 742 F.2d 1196

a rn 6

United States v. Hicks, 748 F.2d 854 (4th Cir.

ee ee ee ee 6

United States v. Martin Linen Supply Co., 430

CD se ee ebanes 7

United States ex rel. Means v. Solem, 646 F.2d 322

Ee ee i)

United States v. Middleton, 690 F.2d 820 (11th Cir.

1982), cert. denied, 460 U.S. 1051 (1983) .... 4-5

United States ex rel. Peery v. Sielaff, 615 F.2d 402

(7th Cir. 1979) (per curiam), cert. denied, 446

ee GE CP ecerecdssctcccceccssescece: a)

Wainwright v. Sykes, 433 U.S. 72 (1977)...... 17

Washington v. Texas, 388 U.S. 14 (1967) ...... 6, 8, 20

Webb v. Texas, 409 U.S. 95 (1972) (per curiam) .. 6

In re Winship, 397 U.S. 358 (1970) ......... 11, 13, 17

Woods v. Solem, 891 F.2d 196 (8th Cir. 1989), cert.

denied, 495 U.S. 920 (1990) ................ i)

Wright v. West, 112 S. Ct. 2482 (1992)........ 2, 3-4

Zemina v. Solem, 438 F. Supp. 455 (D. S.D. 1977),

aff'd, 573 F.2d 1027 (8th Cir. 1978)(per curiam). 6-7

vii

STATUTES:

Ill. Rev. Stat. ch. 38, 4 115-4(a) (1985) ............

Ill. Rev. Stat. ch. 38, 4 116-1 (1985) ..............

Ill. Rev. Stat. ch. 110A, 4 451(b) (1985) ...........

Ill. Rev. Stat. ch. 110A, 4 451(c) (1985) ...........

MISCELLANY:

Ronald J. Allen, The Restoration of In re Winship:

A Comment on Burdens of Persuasion in

Criminal Cases After Patterson v. New York,

76 Mich. L. Rev. 30 (1977) ............44..

Robert N. Clinton, The Right to Present a Defense:

An Emergent Constitutional Guarantee in

Criminal Trials, 9 Ind. L. Rev. 711 (1976) ...

John C. Jeffries, Jr. & Paul B. Stephan III, De-

fenses, Presumptions, and Burdens of Proof in

the Criminal Law, 88 Yale L.J. 1325 (1979) ..

Michael Wells, Behind the Parity Debate: The De-

cline of the Legal Process Tradition in the Law

of Federal Courts, 71 B.U. L. Rev. 609 (1991) .

12

12

2

No. 91-1738

In THE

Supreme Court of the United States

OcTOBER TERM, 1992

JERRY D. GILMORE,

Petitioner,

Vv.

KEVIN TAYLOR,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

willie

ARGUMENT

THE “RIGHT TO PRESENT A DEFENSE” IS TOO GEN-

ERAL A PROPOSITION TO DICTATE A RESULT UNDER

TEAGUE.

Taylor asks this Court to extend the Due Process Clause

to jury instructions on every affirmative defense defined

by state law. Conspicuously absent from Taylor’s brief is

any citation to even a single case from this Court (or from

virtually any other court) applying the Due Process Clause

to an affirmative defense that does not implicate an ele-

ment of the charged crime. It comes as no surprise, then,

that Taylor chose to characterize the rule he invokes at

such a high level of abstraction; without any specific case

supporting his position, Taylor must rely on general prin-

ciples extracted from earlier cases in an effort to extend

precedent. As this Court has repeatedly held, however,

courts may extend precedent on direct review but not on

collateral review. “‘ ‘Habeas corpus always has been a col-

lateral remedy, providing an avenue for upsetting judg-

ments. It is not designed as a substitute for direct re-

view.’”’ Teague v. Lane, 489 U.S. 288, 306 (1989) (plural-

ity opinion) (quoting Mackey v. United States, 401 U.S.

667, 682-83 (1971) (Harlan, J., concurring in part and dis-

senting in part)).

Rather than extend precedent, courts must, on collateral

review, apply rules compelled by precedent existing when

the prisoner’s conviction became final. Graham v. Collins,

61 U.S.L.W. 4127, 4129 (U.S. Jan. 26, 1993) (quoting Saffle

v. Parks, 494 U.S. 484, 488 (1990)). Even if a habeas peti-

tioner relies on an old rule, applying the rule “in a novel

setting, thereby extending the precedent,” violates Teague.

- os

Stringer v. Black, 112 S. Ct. 1180, 1135 (1992). Accord-

ingly, “(t]he crux of the analysis when Teague is invoked

. . . 1s identification of the rule on which the claim for

habeas relief depends.”’ Wright v. West, 112 S. Ct. 2482,

2501 (1992) (Souter, J., concurring). Characterizing prece-

dent by its underlying principles, as Taylor does, rather

than by the holdings of the relevant cases, provides the

mechanism for extending precedent rather than applying

existing rules.! Taylor, however, does just what Teague

prohibits: he insists that this conviction violated due proc-

ess based on analogy from, rather than holdings of, earlier

cases. Such arguments must fail under Teague.

This Court rejected an argument like Taylor’s based on

general principles in Sawyer v. Smith, 497 U.S. 227, 1108S. Ct.

2822 (1990). In Sawyer, the state prosecutor had allegedly vio-

lated Robert Sawyer’s Eighth Amendment rights by empha-

sizing to the jury, during closing argument, that the jury’s

decision to impose the death penalty would be reviewed by

the courts. 110 S. Ct. at 2825-26. Caldwell v. Mississippi, 472

U.S. 320 (1985), announced such an Eighth Amendment

rule, but this Court decided Caldwell more than a year

after Sawyer’s conviction became final. 110 S. Ct. at 2826.

Under Teague, therefore, the Court had to inquire first

whether Caldwell announced a new rule because, if so,

the Court could not apply Caldwell to Sawyer’s case.

This Court held that Caldwell indeed announced a new

rule because it was not dictated by existing precedent.

1 “Teague and Butler [v. McKellar, 494 U.S. 407 (1990), hold that

federal courts may not consider a habeas petition if the petitioner

relies on inferences based on the reasoning in the opinion rather

than on holdings within the four corners of Supreme Court prece-

dents.” Michael Wells, Behind the Parity Debate: The Decline o

the Legal Process Tradition in the Law of Federal Courts, 71 B.U.

L. Rev. 609, 641 (1991).

a

110 S. Ct. at 2827-31. Sawyer argued to the Court that

Caldwell “‘was ‘rooted’ in the Eighth Amendment com-

mand of reliable sentencing” and that the application of

this Court’s precedent that recognized this Eighth Amend-

ment interest to “misleading prosecutorial comment ‘by

analogy’ would lead to the predictable Caldwell result.”

Id. at 2828. The Court quickly rejected this argument,

however, because it found the Eighth Amendment com-

mand of reliable sentencing too general to dictate any spe-

cific result. Jd. As the Court explained, the new-rule in-

quiry “would be meaningless if applied at this level of

generality.”’ Jd.

The right to present a defense suffers from the same

problem of generality. Sawyer’s reliability-in-sentencing

argument was consistent with the result he sought, but

it was too general a principle to dictate any specific result

because the Court had never held that all errors that

might affect the reliability of a capital sentencing pro-

cedure violate the Eighth Amendment. Likewise, the right

to present a defense is expansive enough to embrace vir-

tually any argument presented by a criminal defendant;

what state procedural error does not, in some way, affect

a defendant’s right to present a defense?

Taylor insists that the “right to present a defense” is

not too general a characterization under Teague. Brief for

Respondent, p. 34 n.17. He argues that this proposed rule

is “necessarily a general one” and that specific applica-

tions of general rules cannot be “‘new rules” under Teague.

Id. (citing Wright v. West, 112 S. Ct. at 2499 (Kennedy, J.,

concurring). This argument misapplies Justice Kennedy’s

point in Wright. Justice Kennedy explained that Jackson

v. Virginia, 443 U.S. 307 (1979), exemplified a case whose

rule requires a “case-by-case examination of the evidence”’

that would rarely trigger a new rule just because a habeas

- =

court had not yet examined the specific evidence at issue

in a given case. Wright, 112 S. Ct. at 2499 (Kennedy, J.,

concurring). Jackson, “[bly its very terms[, . . .] provides

a general standard which calls for some examination of

the facts. The standard is whether any rational trier of

fact could have found guilt beyond a reasonable doubt

after a review of all the evidence, so of course there will

be variations from case to case.” Jd. Taylor, however,

does not ask the Court to apply an accepted rule to a

specific set of evidentiary facts; he asks the Court to ex-

pand upon and clarify the Jaw in this murky area of due

process.

The diverse precedent upon which Taylor relies certainly

supports the uncontroversial proposition that the proce-

dural component of the Due Process Clause preserves the

right to defend oneself in a criminal trial in relation to

the elements of the charged crime. Taylor cites no case,

however, that describes, with any degree of specificity,

why the general principles underlying this right to pre-

sent a defense necessarily extend to affirmative defenses

that a government might choose to permit a defendant

to plead.

A. Cases Adjudicating Issues of Federal or State Law Can-

not Dictate Results Under the Due Process Clause.

Many of the cases that Taylor cites do not even an-

nounce constitutional holdings; these courts merely ad-

dress federal or state criminal procedure.” In Strauss v.

2 See Spurr v. United States, 174 U.S. 728, 735 (1899); United

States v. Bailey, 444 U.S. 394, 415-16 (1980); Hickory v. United

States, 160 U.S. 408, 423 (1896); Quercia v. United States, 289 U.S.

466, 472 (1933); Hopt v. Utah, 110 U.S. 574, 583 (1884); United

States v. Middleton, 690 F.2d 820, 826 (11th Cir. 1982), cert. denied,

(Footnote continued on following page)

=

United States, 376 F.2d 416 (5th Cir. 1967), for example,

the Fifth Circuit overturned a conviction on procedural,

not constitutional, grounds. Jd. at 418-19. The court never

suggested that the jury instruction error in that case “vio-

lated a defendant’s right to due process of law.” Brief

for Respondent, p. 30. Whether federal criminal procedure

would have required the federal government to retry

Taylor is no more relevant to this habeas corpus proceed-

ing than whether Illinois law would have required a re-

trial. Sawyer, 110 S. Ct. at 2830 (“ ‘the availability of a

claim under state law [or, by implication, federal law] does

not of itself establish that a claim was available under

the United States Constitution’ ”’) (quoting Dugger v.

Adams, 489 U.S. 401, 409 (1989)). Taylor cannot rely on

these criminal procedure cases to support his constitu-

tional claim.

B. Cases Applying a Right to Present a Defense to the

Elements of Crimes Never Even Address that Much

More Difficult Question of Whether the Right Would

Also Extend to Affirmative Defenses.

Other cases upon which Taylor relies address elements

of crimes rather than affirmative defenses and exemplify

cases of gross procedural unfairness that rise to the level

of a due process violation. The instant case pales in com-

parison.

For example, Jn re Oliver, 333 U.S. 257 (1948), invali-

dated a summary criminal trial proceeding akin to the

Court of Star Chamber in which a judge, also sitting as

2 continued

460 U.S. 1051 (1983); United States v. Blair, 456 F.2d 514, 520

n.5 (3d Cir. 1972); Allen v. State, 97 Nev. 394, 397, 632 P.2d 1153,

1155 (1981).

=f

a one-man grand jury, summarily charged, convicted and

sentenced Oliver in a secret proceeding without giving

notice, permitting him to obtain counsel or granting him

the opportunity to cross-examine witnesses who testified

against him. Jd. at 258-60. Given these many, serious pro-

cedural irregularities, Oliver had no fair chance to defend

himself in relation to the elements of the charged crime.

The Court indeed stated that Oliver “had a right to his

day in court” (id. at 273), but this general comment hardly

constitutes the Court’s holding and it surely could not dic-

tate the result that Taylor seeks. Oliver merely holds that

summary criminal convictions, without notice, hearing and

counsel, violate due process. Jd. at 275-76. Other than

allowing Taylor to pluck some choice language out of con-

text, Oliver is completely inapposite to this case.

Oliver, like many other cases that Taylor cites,? simply

begs the question of whether the Due Process Clause ap-

3 an } te a = U.S. 14, 17-23 (1967) —— law

wrongly prevented defendant from calling witness to testify regard-

ing the commission of the offense); Chambers v. Mississippi, 410 U.S.

284, 291 (1973) (same); Rock v. Arkansas, 483 U.S. 44, 57 (1987) (state

procedural rule prevented the defendant “from describing any of

the events that occurred on the day of the shooting’); Crane v.

Kentucky, 476 U.S. 683, 687-92 (1986) (evidence relating to credibil-

ity of confession excluded); Webb v. Texas, 409 U.S. 95, 98 (1972)

(per curiam) (trial judge interfered with defendant’s witness who

would testify about the commission of the crime); Spurr, 174 U.S.

at 735 (elemental issues of intent and knowl taken from the

jury); Quercia, 289 U.S. at 472 (improper judicial comment on evi-

dence relating to element of charged offense); Hopt, 110 U.S. at

583 (same); Hickory, 160 U.S. at 423 (instruction poe

deliberation on element of offense); Cool v. United States, S.

100, 101-04 (1972) (per curiam) (same); United States v. Escobar de

Bright, 742 F.2d 1196, 1201-02 (9th Cir. 1984) (same); United States

v. Hicks, 748 F.2d 854, 857-58 (4th Cir. 1984) (failure to give alibi

instruction violated due process); Zemina v. Solem, 438 F. Supp.

455, 469-70 (D. S.D. 1 (instructions prevented a finding of in-

(Footnote continued on following page)

~ =

plies to an affirmative defense created by state or federal

criminal law. In fact, at least one of the cases he cites

explicitly supports Gilmore’s position. In State v. Miller,

186 Conn. 654, 660, 443 A.2d 906, 909 (1982), the Con-

necticut Supreme Court indeed stated that the defendant

had a constitutional right to an instruction on self-defense,

but only because the lack of self-defense constituted an

element of the charged crime under Connecticut law. See

State v. Preyer, 198 Conn. 190, 198-99, 502 A.2d 858, 862-

63 (1985) (the “‘due process right to establish a defense”

only extends to elements of crimes); State v. Suggs, 209

Conn. 733, 751, 553 A.2d 1110, 1121 (1989) (Preyer holds

that due process only extents to elements and not affirm-

ative defenses). The Connecticut ‘Supreme Court unani-

mously agrees with Gilmore’s position.

Unlike Mr. Oliver, Taylor essentially conceded that he

committed the elements of the charged crime of murder.

Taylor never contested that he killed Scott Siniscalchi and

he never contested that he intended to do so. His jury

heard the government’s evidence on these points, found

3 continued

tent), aff'd, 573 F.2d 1027 (8th Cir. 1978) (per curiam); Naugher

v. State, 685 P.2d 37, 41 (Wyo. 1984) (same). The directed verdict

cases (e.g., United States v. Martin Linen Supply Co., 430 U.S.

564, 572-73 (1977)) and presumption cases (e.g., Sandstrom v. Mon-

tana, 442 U.S. 510, (1979)) similarly address elements rather

than affirmative defenses.

Other cases that Taylor cites are a because they

are capital cases. See Green v. U.S. 95 (1979) (per

curiam) (testimony relevant to the acts causing the victim’s death

excluded as hearsay); Eddings v. Oklahoma, 455 U.S. 104 (1982)

(invalidating instructions relevant to mitigation evidence). The Con-

stitution requires proper jury instructions on all mitigating evi-

dence in capital cases. McKoy v. North Carolina, 494 U.S. 433,

442 (1990). Justice Scalia’s comments in dissent must also be read

in this light. Jd. at 459-60 n.1 (Scalia, J., dissenting).

=

it persuasive beyond a reasonable doubt and convicted him

of murder. Accordingly, Taylor unquestionably asks this

Court to extend the holding of these elements cases to

affirmative defense cases like this one. It is hardly “obvi-

ous,” therefore (Brief for Respondent, p. 12), that Illinois

violated his “right to present a defense” when this Court

has never yet extended the Due Process Clause as Taylor

wishes.* As the Preyer court held:

Despite the defendant’s contention to the contrary,

Washington v. Texas does not establish an unqualified

constitutional right to correct jury instructions on any

defense the defendant may have. The only relevant

issue therein decided was the applicability, in state

court proceedings, of the sixth amendment right of

a criminal defendant to have compulsory process for

obtaining witnesses in his favor.

198 Conn. at 197 n.9, 502 A.2d at 862 n.9 (internal cita-

tion omitted). This statement reflects a patently reason-

able restatement of Washington’s holding. This Court may

extend this holding to include jury instructions on affirm-

ative defenses at some time in the future. It cannot do so

* As late as 1976, Professor Clinton (whom Taylor cites in sup-

port of his theory) was constrained to report that, despite cases

such as Cool and Washington v. Texas, this Court “has had occa-

sion to review many cases which touch on this issue and yet has

rarely suggested that the criminal defendant has a right to pre-

sent his defense or explained the a test to be applied

to such a guarantee.” Robert N. ton, The Right to Present

a ogy) An Emergent Constitutional Guarantee in Criminal

ials, 9 Ind. L. Rev. 711, 714 (1976) (footnotes omitted). See also

id. at 795 (““While the Supreme Court’s prior right to defend cases

provide some suggestions regarding the source of this constitu-

tional right, the cases almost totally fail to provide any rationale

or consistent test to be ied in such cases’’). The “lack of theo-

retical development”’ that Professor Clinton pointed to in this ar-

ticle (id. at 714) is even more telling in the context of affirmative

defenses created solely by state iaw.

«Dn

on collateral review, however, without ignoring Teague’s

well-established rule of retroactivity.

C. The Only Cases That Taylor Cites Finding a Constitu-

tional Right to Present a Defense in the Context of

a Pure Affirmative Defense Are Distinguishable Be-

cause Taylor Never Offered a Correct Instruction and

Because Only Minimal Evidence Supported Voluntary

Manslaughter.

Taylor cites to only one appellate court in the country

(other than the Seventh Circuit) that has found a right

to present a defense in the context of an affirmative de-

fense distinct from the elements of the charged crime. See

United States ex rel. Means v. Solem, 646 F.2d 322 (8th

Cir. 1980). Even in the Eighth Circuit, however, Taylor

would not prevail on habeas corpus, because that court

requires significant evidence supporting the affirmative

defense and requires a contemporaneous request for a cor-

rect instruction. See Frey v. Leapley, 931 F.2d 1253, 1255

(8th Cir. 1991); Woods v. Solem, 891 F.2d 196, 198-99 (8th

Cir. 1989), cert. denied, 495 U.S. 920 (1990).5 Under these

cases, Tavlor’s conviction would not violate due process

because he never objected to the instruction and because

his affirmative defense case was not even close.

5 Indeed, the Seventh Circuit itself had Peeper required “un-

equivocally ’ evidence to support requested instruction

before it y ould find that a state court’s refusal to give the in-

pepe gy dee yoy bp ye FE <y- United

States ex rel. Peery v. Sielaff, 615 F.2d 402, (7th Cir. 1979)

(per curiam), cert. denied, 446 U.S. 940 (1980). The court inexpli-

cably retreated from this high threshold in the decision below and

seized instead a dictum in United States ex rel. Bacon v.

DeRobertis, 728 F.2d 874, 875 (7th Cir.) (per curiam), cert. denied,

469 U.S. 840 (1984), s ing that the Due Process Clause re-

uires an affirmative defense instruction whenever “credible” evi-

nce supports it. Pet. App. 18. The decision below is ntly

the first in the land to announce such a minimal stan for due

process scrutiny.

—10-—

Illinois law required the trial court to instruct Tay!or’s

jury on voluntary manslaughter if only “very slight evi-

dence” supported the charge (People v. Williams, 205 IIl.

App. 3d 751, 765, 563 N.E.2d 762, 770 (1st Dist. 1989),

appeal denied, 141 Ill. 2d 558, 580 N.E.2d 132 (1991); Peo-

ple v. Arnold, 139 Ill. App. 3d 429, 434, 487 N.E.2d 997,

1000 (1st Dist. 1985)), and that was the case here. As the

Illinois Appellate Court held in Taylor’s state appeals,

Taylor had presented no evidence whatsoever that his pas-

sion was sudden and “the provocation was very question-

able.” Pet. App. 38, 42-43. The court explained that the

record “clearly shows” that correct instructions “would

have been very unlikely to have resulted in” a convic-

tion of voluntary manslaughter rather than murder. /d.

at 43 (emphasis added). Given this straightforward applica-

tion of the Illinois law of voluntary manslaughter on two

separate occasions by unanimous Illinois Appellate Court

panels and given the Illinois Supreme Court’s refusal to

review both of these appellate decisions, this Court can-

not declare that Taylor’s conviction amounted to a “‘com-

plete miscarriage of justice [or] an omission inconsistent

with rudimentary demands of fair procedure.” Hill v.

United States, 368 U.S. 424, 428 (1962).®

* Taylor himself never even questioned the murder instruction until

he filed his brief on direct . As this Court e in Hender-

son v. Kibbe, 431 U.S. 1 155 (1977), since defense never

even questioned the challenged instruction i —~ , “the

probability that it substantially affected wy Pe berations

seems remote.”’ Accord Estelle v. Williams, S. 501, 510-13

(1976) (waiver indicates that an alleged error did not violate due

—— ~~ v. Kentucky, 436 U.S. 478, 485 (1978) (Stevens,

tT disse ) (same); Thwing v. South Dakota, 470 F.2d 351, 353

oh Cel ) (per curiam) (failure to object to instructions on

charged offense indicated no fundamental unfairness in habeas

claim based on state court’s failure to instruct on an affirmative

defense and on lesser included offenses), cert. denied, 411 U.S. 937

(1973); Higgins v. Wainwright, 424 F.2d 177, 178 (5th Cir.) (per

(Footnote continued on following page)

= =

PATTERSON COULD NOT HAVE ANNOUNCED A PURE-

LY PROCEDURAL HOLDING WITHOUT RENDERING

THE WHOLE WINSHIP LINE OF CASES ARBITRARY

AND IRRECONCILABLE.

Taylor argues that Patterson v. New York, 432 U.S. 197

(1977), says nothing about substantive liberty interests.

The Due Process Clause applies to affirmative defenses,

he reasons, because Patterson and like cases address only

the question of how much process is due rather than whether

a liberty interest exists. Brief for Respondent, pp. 43-50.

This argument necessarily renders In re Winship, 397 U.S.

358 (1970), and subsequent cases arbitrary and unprincipled.

An argument that destroys the doctrinal stability of twen-

ty-three years of precedent cannot be said to rest on set-

tled principles of law or be dictated by existing precedent.

Patterson superficially reads like a case analyzing how

much process was due. The Court held that the Due Pro-

cess Clause permitted New York to require a criminal

defendant to prove provocation by a preponderance of the

evidence as an affirmative defense. 432 U.S. at 205-16.

As the Court later made explicit, however, Patterson’s

holding was premised on the “greater-includes-the-lesser”’

concept: the “greater” power to create the affirmative

defense includes the “lesser” power of establishing any

burden of proof the legislature might choose. McKoy v.

North Carolina, 494 U.S. at 442; id. at 450 (Blackmun,

J., concurring). Thus, the Court may have drawn sharp

distinctions between substance and procedure in some

areas (see Cleveland Board of Education v. Loudermill,

® continued

curiam) (failure to request a lesser included offense instruction pre-

vented a finding that a state conviction violated due process for

failure to instruct on the lesser included offense), cert. denied, 400

U.S. 905 (1970). See also infra § III, pp. 16-19.

=) 9...

470 U.S. 532, 541 (1985)), but it has never done so with

regard to affirmative defenses in criminal cases. The amount

of process due a criminal defendant, at least with regard

to affirmative defenses, depends on the substantive state

law.

Furthermore, labeling Patterson as a strictly procedural

decision would make it functionally irreconcilable with

Mullaney v. Wilbur, 421 U.S. 684 (1975), and would ren-

der the element-non-element distinction completely arbi-

trary. See Ronald J. Allen, The Restoration of In re Win-

ship: A Comment on Burdens of Persuasion in Criminal

Cases After Patterson v. New York, 76 Mich. L. Rev.

30, 48-50 (1977) (procedural view of Winship means the

amount of process due in any given case depends on the

purely arbitrary question of whether a legislature includes

a factor relating to culpability in the statutory definition

of a crime); John C. Jeffries, Jr., & Paul B. Stephan III,

Defenses, Presumptions, and Burdens of Proof in the

Criminal Law, 88 Yale L.J. 1325, 1344-56 (1979) (same).

Comparing Mullaney with Patterson illustrates the prob-

lem. In Mullaney, the Court held that Maine could not

require a defendant to prove provocation by a preponder-

ance of the evidence as a mitigating factor of murder;

rather, the Court held that the Due Process Clause re-

quired the state to disprove provocation beyond a reason-

able doubt. 421 U.S. at 695-704. In Patterson, by contrast,

the Court found no constitutional infirmity in New York’s

statutory scheme that required a defendant to prove pro-

vocation by a preponderance of the evidence just like

Maine’s did. 432 U.S. at 205-16. The two statutes only

differed in that Maine included the absence of provocation

as an element of murder while New York considere he

existence of provocation as a distinct, non-elemental, af-

firmative defense. Jd. at 212-16. The Court has adhered

to Patterson’s element-non-element distinction in many

subsequent cases and in a variety of contents. See, e.g.,

walilion

Martin v. Ohio, 480 U.S. 228 (1987); McMillan v. Penn-

sylvania, 477 U.S. 79 (1986); Francis v. Franklin, 471

U.S. 1301 (1985); Engle v. Isaac, 456 U.S. 107 (1982);

Sandstrom v. Montana, 442 U.S. 510 (1979); Jackson v.

Virginia, 443 U.S. 307 (1979).

If considered as purely procedural decisions, Mullaney

and Patterson irreconcilably conflict. Both Gordon Patter-

son and Stillman Wilbur claimed that they deserved much

lower sentences; accordingly, they had equivalent claims

to natural liberty. Nonetheless, the Court found Patter-

son deserving of much less process than Wilbur. The dif-

ferent results in the two cases necessarily mean that call-

ing a factor, like provocation, an affirmative defense

rather than calling the absence of the factor an element

of the crime has substantive significance.

Limiting the Due Process Clause to elements of crimes

resolves the otherwise arbitrary distinction between ele-

ments and non-elements. Elements trigger due process

scrutiny because our society wishes to minimize the risk

of convicting innocent people of crimes. Winship, 397 U.S.

at 372 (Harlan, J., concurring). Non-elements (like provoca-

tion in Illinois) do not trigger due process scrutiny because

a state’s greater power to enact an affirmative defense

statute if it so chooses includes the lesser power to ad-

judicate those defenses by its own state procedures. “(I]f

a state could choose to do something—choose, for example,

to make self-defense an affirmative defense to murder—

then the federal inquiry is over; whether the state has in-

deed so chosen is a question of its domestic law.”” Flowers

v. Illinois Dep’t of Corrections, 962 F.2d 703, 711 (7th

Cir.) (Easterbrook, J., concurring), petition for cert. filed,

61 U.S.L.W. 3150 (U.S. Aug. 5, 1992) (No. 92-253) (cita-

tions omitted).

This approach also serves the laudable goal of not turn-

ing virtually every violation of state law into a federal

constitutional violation:

ilies

The Constitution requires the prosecution to prove

its case beyond a reasonable doubt. If the state court

does not frame the instructions accurately under state

law, how can the jury have found every element be-

yond a reasonable doubt? ae that the

state must bring forth evidence from which a sane

fact finder could conclude, beyond a reasonable doubt,

that the accused committed the offense. Jackson v.

Virginia, 443 U.S. 307 (1979). Does it not then follow

that any important error violates the Constitution?

If the trial judge misunderstands state law, how can

the jury have made the necessary findings? All of

these methods [of turning state-law violations into

thine. dis constitutional violations] come to the same

ity between the “real” state law and the

om sopke ed in a particular case violates the Consti-

tution. Yet if these and cognate methods are indeed

appropriate, then the many cases telling federal courts

to distinguish between violations of state and federal

law are nothing but hot air. The distinction is vital

but trivial, governing only when, as in Estelle v.

McGuire, the judge is so careless as to say that the

writ must issue to redress an error of state law.

Id. at 710-11 (some citations omitted).

It simply cannot be, as Taylor essentially argues, that

every criminal statute written by every government cre-

ates a protectible liberty interest under the Due Process

Clause. This Court has distinguished time and again be-

tween errors of state law and violations of the Constitu-

tion. See, e.g., Estelle v. McGuire, 112 S. Ct. 475, 480

(1991); Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092,

3102 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984); Isaac,

456 U.S. at 121 n.21; Rose v. Hodges, 423 U.S. 19, 21

(1975) (per curiam); Beck v. Washington, 369 U.S. 541,

554-55 (1962); Gryger v. Burke, 334 U.S. 728, 731 (1948).

Clearly, then, not all statutes create a “substantial and

legitimate expectation” of a statutory right. Hicks v. Okla-

homa, 447 U.S. 348, 346 (1980). “If the contrary were

=1§—

true, then ‘every erroneous decision by a state court on

state law would come [to this Court] as a federal constitu-

tional question.’”’ Isaac, 156 U.S. at 121 n.21 (quoting

Gryger, 334 U.S. at 731)).7

Taylor argues that he had an entitlement to his volun-

tary manslaughter defense and an entitlement to natural

liberty, so the state-law jury instruction error arbitrarily

denied him due process. Engie v. Isaac and numerous cir-

cuit court cases are different from this case, he suggests,

because the state statutes that were violated in those

cases created no entitlements and did not affect the ha-

beas petitioners’ liberty. Brief for Respondent, pp. 48-49

& n.25. The facts of those cases, however, do not permit

such a facile distinction.

In Isaac, for example, the jury instructions wrongly re-

quired the habeas petitioners to prove self-defense. If Tay-

lor had a substantial and legitimate expectation that he

would be sentenced to a maximum of fifteen years if the

jury believed his partial affirmative defense, then Isaac,

Hughes and Bell certainly had substantial and legitimate

expectations that they would be acquitted if Ohio failed

to disprove, beyond a reasonable doubt, their complete

defenses. Although the Jsaac jury instruction error related

to the burden of proof, the application of that drastically

wrong burden of proof may well have deprived the defen-

dants of their defenses. It defies reason to suggest that,

7 These concerns, at least initially, did not trouble the Seventh

Circuit. In Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), which

first found the pattern instructions unconstitutional, the court in-

tended to “effectuat{e] the holding of Reddick through the vehi-

cle of the Due Process Clause.” /d. at 1136. That rationale “pro-

duced some of an embarrassment, for characterizing the rule

as ‘effectuat{ing] the holding of Reddick,’” a decision on state law,

“ ‘through the vehicle of the Due Process Clause’ shows that we

do not have a constitutional rule at all.”’ Flowers, 962 F.2d at 709

(Easterbrook, J., concurring).

—16—

in a criminal case, radically shifting the burden of proof

can have no effect on the defendant’s expectation of nat-

ural liberty.

In sum, the constitutionality of Taylor’s jury instruc-

tions depends on how much deference the due process

clause affords to state courts to adjudicate their own pro-

cedural errors. The Illinois Supreme Court has held that

these pattern instructions seriously misstated Illinois law,

but not seriously enough to invalidate final convictions.

See generally People v. Flowers, 138 Ill. 2d 218, 561

N.E.2d 674 (1990). The Seventh Circuit should not have

intruded into that application of Illinois law. See Flowers,

962 F.2d at 711 (Easterbrook, J., concurring) (“Judges of

a state’s highest court must now think thrice before they

find a flaw in a pattern jury instruction! From now on,

prudence lies in perpetuating dubious instructions rather

than improving them”). Until this Court articulates a

de‘initive standard for distinguishing state-law errors from

due process violations, jury instruction errors like Taylor’s

cannot violate due process other than by virtue of new

rules under Teague.

IF TAYLOR HAD A STATUTORY ENTITLEMENT TO

PRESENT A DEFENSE, HE WAIVED THAT RIGHT BY

NOT OBJECTING AT TRIAL TO THE INSTRUCTIONS.

For the first time since his murder conviction in 1986,

Taylor argues that he had a statutory entitlement to jury

consideration of voluntary manslaughter and, because the

instructions might have permitted the jury to convict him

without considering his affirmative defense, the conviction

violated due process under Hicks v. Oklahoma.® If the

8 On direct , Taylor ntly only argued that his instruc-

tions violated Illinois law. The Ill Illin =~ Appellate Court found that

(Footnote continued on following page)

=~ =

Court finds an entitlement despite Patterson, Taylor’s

argument still fails because Illinois criminal procedure af-

forded him more than adequate process.®

Section 115-4(a) of the Code of Criminal Procedure of

1963 states that questions of fact shall be decided by the

jury. Ill. Rev. Stat. ch. 38, ¢ 115-4(a) (1985). To the extent

that the jury charge permitted the jury to find Taylor

guilty of murder without resolving the factual issue of pro-

vocation, the state trial court violated section 115-4(a).

Taylor would presumably claim that every violation of sec-

tion 115-4(a) violates the Due Process Clause, but such

a claim would ignore the other statutory procedures de-

signed specifically to remedy procedural errors like the

one in this case. The Illinois Supreme Court’s les gov-

erning criminal trial procedure require counsel to object

at the jury instruction conference to contest a jury in-

struction. Ill. Sup. Ct. R. 451(b), Ill. Rev. Stat. ch. 110A,

8 continued

he had waived any error by not tendering a proper instruction

and that, because his voluntary ter evidence was not

strong, he could not establish plain error. Pet. App. 38. On state

collateral review, Taylor argued that the recently-decided case of

People v. Reddick, Ill. 2d 184, 526 N.E.2d 141 (1988), held that

use of the pattern instructions constituted plain error and estab-

rm) = that his conviction violated due process under In re Win-

none llate Court rejected this argument because,

my Patterson ew York, Winship does not extend to affir-

mative defenses. Pet. App. 41-42. In the lower federal courts, Tay-

lor argued that the absence of provocation constituted an element

of murder in Illinois. Brief for he lant at 13-18, Taylor v. Gil-

more, 954 F.2d 441 (7th Cir. 1 He also superficial argued

that the instructions were fundamentally unfair but without any

succinct analysis. Jd. at 22-24.

® The Seventh Circuit found that Illinois had waived a procedural

default argument premised on Wainwright v. Sykes, U.S. 72

(1977). Pet. App. 17 n.5. Gilmore does not press that argument

in this Court, either. Rather, as explained in the text, procedural

default also materially affects the merits of Taylor’s due process

claim under Hicks v. Oklahoma.

=~

q 451(b) (1985). Taylor indisputably failed to preserve his

objection under Rule 451(b). (J.A. 51 & 101).

The procedural protections afforded Taylor did not end

at the trial, however. First, Taylor could have moved for

a new trial based on the incorrect instruction, but he did

not. Ill. Rev. Stat. ch. 38, 4 116-1 (1985). Second, he still

had every right to raise the issue on appeal and, under

Illinois’ plain-error rule, “‘substantial defects [in jury in-

structions] are not waived by failure to make timely ob-

jections thereto if the interests of justice require.” Ill.

Sup. Ct. R. 451(c), Ill. Rev. Stat. ch. 110A, ¢ 451(c) (1985).

Taylor indeed challenged the instructions on direct appeal,

but the court found the plain-error rule inapplicable—prin-

cipally because the court found Taylor’s voluntary man-

slaughter case was not strong. Pet. App. 38. The Illinois

Supreme Court denied Taylor’s petition for further re-

view, and this Court has no reason to question the Illinois

Appellate Court’s assessment of Taylor’s case or applica-

tion of Illinois’ plain-error rule.'°®

This Court has found state criminal procedure adequate

to protect a statutory entitlement in Ross v. Oklahoma,

487 U.S. 81 (1988). In that capital case, the trial court

wrongly deprived the defendant of his statutory entitle-

ment to exercise a limited number of peremptory chal-

lenges. This Court affirmed after scrutinizing other aspects

of Oklahoma criminal procedure to determine whether that

process sufficed, under the Due Process Clause, to pro-

tect the defendant’s entitlement to his peremptory chal-

lenges. Oklahoma law required defendants to exercise

peremptory challenges to preserve a claim of error re-

10 Reddick requires no differert conclusion. Although that case

indeed held that use of the pattern murder instructions constituted

plain error, the Illinois Supreme Court has held that “Reddick

should not be applied retroactively” to invalidate final convictions.

People v. Flowers, 138 Ill. 2d at 239-42, 561 N.E.2d at 682-84.

o

==

lating to a wrongful denial of a challenge for cause, and

the Court found “nothing arbitrary or irrational about

such a requirement, which subordinates the absolute free-

dom to use a peremptory challenge as one wishes to the

goal of empaneling an impartial jury.” Jd. at 90.

Ross parallels this case. As Taylor concedes, Illinois had

no more a constitutional obligation to permit a jury to

consider voluntary manslaughter than Oklahoma had to

create peremptory challenges. Brief for Respondent, p.

41.1! And just as it was “a long settled principle of Okla-

homa law” that a defendant who wanted to preserve a

claim of error based on a wrongful denial of a for-cause

challenge had to exercise a peremptory challenge, settled

Illinois law required defendants to object at trial or meet

the plain-error standard to preserve a challenge to an in-

struction. This rule preserves orderly trial procedure while

still permitting reconsideration of the error “if the inter-

ests of justice require.” Ill. Sup. Ct. R. 451(0), Ill. Rev.

Stat. ch. 110A, { 451(c) (1985). See also Clemons, 497 U.S.

at 746-47 (other state procedures indicated that defendant

had no unqualified entitlement to jury sentencing). Illinois

criminal procedure amply protected any entitlement Tay-

lor had to jury consideration of his defense.

‘1 Indeed, voluntary manslaughter in Illinois is directly analogous

to sentencing factors considered by juries in capital cases. After

the State presents its murder case, the defendant has the option

of bringing forth evidence that will mitigate the sentence down

from a maximum of 40 years to a maximum of 15. As the Court

reaffirmed in Cabana v. Bullock, 474 U.S. 376 (1986), a defendant

charged with a serious crime has a constitutional right to have

a jury determine his guilt or innocence (by which it meant hav-

ing the jury consider the elements of the charged crime), but “{tJhe

decision whether a particular punishment—even the death penal-

pM ho riate in any given case is not one that we have ever

ired to re te .”” Id. at 384-85. See also Clemons

v. Mississippi, 494 U.S. 738, 745-46 (1990); McMillan v. Pennsyl-

vania, 477 U.S. at 93; Spaziano v. Florida, 468 U.S. 447, 462-65

(1984).

-_™

IV.

THE RULE ANNOUNCED IN THE CASE BELOW DOES

NOT QUALIFY FOR RETROACTIVE APPLICATION UN-

DER THE SECOND TEAGUE EXCEPTION.

Teague makes clear that its second exception is reserved

for watershed rules of criminal procedure. 489 U.S. at 311.

Taylor repeatedly cites to Washington v. Texas and Cham-

bers v. Mississippi to support his argument that Illinois

violated his right to present a defense. Brief for Respon-

dent, pp. 23-25, 31 & 50. Unlike Gideon v. Wainwright,

372 U.S. 335 (1963), which indeed announced a “bedrock

procedural” rule that defendants have a right to counsel

(Teague, 489 U.S. at 311 (quoting Mackey, 401 U.S. at

693-94 (Harlan, J., concurring in part and dissenting in

part)), the new rule upon which Taylor relies would not

itself establish any bedrock principle. That honor, as Tay-

lor himself emphasizes, would go to Washington v. Texas

and Chambers v. Mississippi. Accordingly, Teague’s sec-

ond exception does not apply to this case.

CONCLUSION

For these reasons, this Court should reverse.

Respectfully submitted,

ROLAND W. BURRIS

Attorney Generai of Illinois

ROSALYN B. KAPLAN

Solicitor General of Illinois

TERENCE M. MADSEN

MARK E. WILSON

MARCIA L. FRIEDL

Assistant Attorneys General

STEVEN J. ZICK*

Assistant Attorney General

*Counsel of Record Counsel for Petitioner