Reply Brief — Sattazahn v. Pennsylvania

: FILES |

1 | |

No. 01-7574 : oP § 2602 :

Supreme Court of the United States

e

DAVID ALLEN SATTAZAHN,

Petitioner,

V.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

°

On Writ Of Certiorari

To The Supreme Court Of Pennsylvania

.

PETITIONER’S REPLY BRIEF

+

ROBERT BRETT DUNHAM*

Counsel of Record

ANNE L. SAUNDERS*

DEFENDER ASSOCIATION

OF PHILADELPHIA

Capital Habeas Corpus Unit

The Curtis Center,

Suite 545-West

Independence Square West

Philadelphia, PA 19106

(215) 928-0520

JOHN T. ADAMS*

LINTON, DISTASIO, ADAMS, &

PALANGE, PC.

1720 Mineral Spring Road

P.O. Box 461

Reading, PA 19603-0461

(610) 374-7320

Counsel for Petitioner

David Allen Sattazahn

Dated: September 4, 2002

*member of the bar of this Court

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

THIS IS A CAPITAL CASE

TABLE OF CONTENTS

Page

i iasrsiintinieaaciieieaneieiianeouneten i

ED GE EEF BEE ED dccccccecccecececcscesconsecseceescees iii

EEE eT 1

I. Respondent Admits That Petitioner is Entitled

to Double Jeopardy Analysis Under Bullington

v. Missouri; Under Bullington, the Double Jeop-

ardy Clause is Violated Whenever — As Here — a

Defendant Who Received a Life Sentence in His

Initial Trial-Like Capital Sentencing Proceeding

A. Bullington’s Double Jeopardy Rule is “Nar-

row” Because it Applies Only to Trial-Like

Capital Sentencing Proceedings; But With

Respe.c to Those Proceedings, It - and Not

the “Clean Slate” Doctrine — Applies When-

ever a Defendant Receives a Life Sentence ..

B. Respondent's and Amicus’s Reliance on

Hung Jury Cases is Misplaced; Although

Double Jeopardy Protections Do Not Re-

quire an Acquittal on the Merits, Peti-

tioner’s Life Sentence Was a Determination

That He Did Not Deserve the Death Penalty

As a Matter of Law and Constituted an Ac-

C. Ring v. Arizona Further Supports the Bull-

ington Rule that the Imposition of Life Sen-

tence is An Acquittal of the Death Penalty...

13

II.

ii

TABLE OF CONTENTS -— Continued

Page

Respondent Admits that Petitioner Had a Life

and Liberty Interest in the Statutorily Man-

dated Life Sentence the Trial Court Imposed

When the Sentencing Jury in His First Trial

Lifelocked; That Interest Necessarily Encom-

passes An Expectation in the Finality of His Life

SOTIRTIIOD 00 cccecccceveccosececoseusessseusenennnennnnnnnnnnannn

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arizona v. Rumsey, 467 U.S. 203 (1984).................... passim

Arizona v. Washington, 434 U.S. 497 (1978) ................:000. 9

Bullington v. Missouri, 451 U.S. 430 (1981) ............. passim

Caspari v. Bohlen, 510 U.S. 383 (1994)............... 3, 4, 5, 6,7

Downum v. United States, 372 U.S. 734 (1963) ................ 11

Evitts v. Lucey, 469 U.S. 387 (1985) ................cccceeeeeeeeeeeees 18

Fong Foo v. United States, 369 U.S. 141 (1962)................ 11

Ford v. Wainwright, 477 U.S. 399 (1986) ..................... —

Furman v. Georgia, 408 U.S. 238 (1972) ...............cccccceeeeeee 7

Gori v. United States, 367 U.S. 364 (1961) ............00+- seed

Green v. United States, 355 U.S. 184 (1957) ...............000... 14

Hicks v. Oklahoma, 447 U.S. 343 (1980) 000.0... cccecceeeeeeee 15

Jones v. United States, 527 U.S. 373 (1999).................. 6, 10

Lockhart v. Nelson, 488 U.S. 33 (1988) ................ccccceeeee 3,4

Monge v. California, 524 U.S. 721 (1998).......... 3, 4, 5, 6, 14

Ohio Adult Parole Authority v. Woodward, 477 U.S.

EL ETD 18

Pennsylvania v. Goldhammer, 474 U.S. 28 (1985)............. 6

Poland v. Arizona, 476 U.S. 147 (1986)...............::c000 7,12

Richardson v. United States, 468 U.S. 317 (1984) ........ 9,10

Ring v. Arizona, 122 S. Ct. 2428 (2002)................. 13,-14, 18

Sanabria v. United States, 437 U.S. 54 (1978)............ 10, 11

Schiro v. Farley, 510 U.S. 222 (1994)... ceeeeeeeeees 5, 7

iv

TABLE OF AUTHORITIES - Continued

Page

Sisson v. United States, 399 U.S. 267 (1970) ................... 11

Smalis v. Pennsylvania, 476 U.S. 140 (1986)................ 7,11

Spaziano v. Florida, 468 U.S. 447 (1984) ............cccceeeeeee 4,6

Strickland v. Washington, 466 U.S. 668 (1984).................. 6

Stroud v. United States, 251 U.S. 15 (1919)............ 2, 5, 7,8

United States v. DiFrancesco, 449 U.S. 117 (1980) ....... 6, 18

United States v. Jorn, 400 U.S. 470 (1971) ............0000 10, 11

United States v. Martin Linen Supply Co., 430 U.S.

I nr Ui nccncicsicchiniasiiaiesnninnaiieasetiaiaabniacisidiinsiatnmaesidiaiaaimaitiiaidiiies 11

United States v. Perez, 22 U.S. (9 Wheat.) 579

Eire eicenesesensecntosicinnenneenstieiniinialiiialili ibaa 8, 10

STATE CASES

Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d

ee El iesicccteienitciiaiiditcnaatinisaminniiabciigiimiumaaiiiaaiaiaibaiauiianaiitl 1

Commonwealth v. Sattazahn, 563 Pa. 533, 763 A.2d

i ncasceremsenssercsnninininniiieeiiiainminmamamnniieds 1

State ex rel. Westfall v. Mason, 594 S.W.2d 9008

GRRE Wiebe ncecenntensienssensninessnmnsestntimestitinitenpiamemaneninibian 12

STATE STATUTES

GB FO, Ge By eee cncresntatinnnttitnenennmannnenen 17

ee ee 12,17

Ss Gee Br ivanictenssnmnsnnatiecmsimaninsinniiieninsiiai 17

GEG, Gee BP cccccsnseramsnsscinesssenntensmnmmanie 16, 17

—

TABLE OF AUTHORITIES — Continued

Page

MISCELLANEOUS

Acker & Lanier, Law, Discretion, and the Capital

Jury: Death Penalty Statutes and Proposals for

Reform, 32 CRIM. L. BULL. 134, 169 (1996) ................. 6,9

Caspari v. Bohlen, 1993 WL 757639 (December 6,

III si coscrncennnecincatiitemmndiiaintieuniieneneeel 3,5

Monge v. California, 1998 WL 222955, 48-49 (April

ET EET 3

1

ARGUMENT

I. Respondent Admits That Petitioner is Enti-

tled to Double Jeopardy Analysis Under Bull-

ington v. Missouri; Under Bullington, the

Double Jeopardy Clause is Violated When-

ever - As Here - a Defendant Who Received a

Life Sentence in His Initial Trial-Like Capital

Sentencing Proceeding is Subjected to Suc-

cessive Capital Sentencing Proceedings.

Respondent concedes “that the capital sentencing

procedure in Pennsylvania resembles a trial for double

jeopardy purposes, just as the Missouri and Arizona

sentencing proceedings in Bullington and Rumsey, and

that the procedure, therefore, triggers the need to deter-

mine if protection is available under the Double Jeopardy

Clause.” Respondent’s Brief at 13. This concession is

dispositive because the imposition of a life sentence after a

capital sentencing proceeding that bears “the hallmarks of

[a] trial on guilt or innocence,” Bullington v. Missouri, 451

U.S. 430, 439 (1981), triggers the protections of the Double

Jeopardy Clause.’ The life sentence imposed after the

completed capital sentencing hearing in this case is a

judgment’ like the sentences at issue in Bullington and

' See Initial Brief at 19-23; Arizona v. Rumsey, 467 U.S. 203, 210

(1984) (“In short, a sentence imposed after a completed Arizona capital

sentencing hearing is a judgment like the sentence at issue in Bulling-

ton v. Missouri, which this Court held triggers the protections of the

Double Jeopardy Clause.”).

* See Commonwealth v. Sattazahn, 563 Pa. 533, 548, 763 A.2d 359,

367 (2000), J.A. at 103 (describing the life sentence imposed in this case

as a statutorily mandated “default judgment”); Commonwealth v.

Martorano, 535 Pa. 178, 194, 634 A2d 1063, 1070 (1993); see also

(Continued on following page)

2

Rumsey, and so subjecting Petitioner to the death penalty

on his retrial violated double jeopardy.

Respondent and Amicus, the United States of Amer-

ica, try to avoid this straightforward application of Bull-

ington by labeling Bullington a “narrow” rule and invoking

two inapplicable lines of continuing jeopardy cases: the

“clean slate” doctrine of Stroud v. United States, 251 U.S.

15 (1919), permitting retrial of a defendant who overturns

his conviction, including potentially harsher resentencing

of that defendant, depending upon the nature of the

applicable sentence and of the original sentencing proceed-

ings; and a line of cases permitting retrial when a hung

jury creates manifest necessity for a mistrial that prevents

the entry of a judgment of verdict or sentence.

As set forth below and throughout Petitioner’s Jnitial

Brief, Respondent’s and Amicus’s conclusion and the

premises from which it arises have no basis in Bullington

or any other double jeopardy decision of this Court that

applies to trial-like capital sentencing proceedings con-

cluded in a defendant’s favor.

Amicus Brief at 17 (“the trial court entered judgment after discharging

a deadlocked jury”).

* Whenever the original sentencing proceedings do not provide

trial-like protections, the prosecution may seek any statutorily pre-

scribed sentence on retrial. When the original sentencing proceedings

were trial-like, however, the State may seek a harsher punishment only

when those initial proceedings were non-capital in nature.

3

A. Bullington’s Double Jeopardy Rule is

“Narrow” Because it Applies Only to Trial-

Like Capital Sentencing Proceedings; But

With Respect to Those Proceedings, It -

and Not the “Clean Slate” Doctrine - Ap-

plies Whenever a Defendant Receives a

Life Sentence.

The United States asserts that “[lJater decisions make

clear that Bullington established a ‘narrow exception’” to

the general rule that a defendant who overturns his

conviction on appeal faces a “clean slate” in which he may,

if reconvicted, face a harsher sentence. Amicus Brief at 13

(quoting Monge v. California, 524 U.S. 721, 730 (1998)).

What these later decisions actually make clear -

including the case the United States cites — is that Bull-

ington’s “narrowness” arises out of its inapplicability to

non-capital cases, not any limited application within

capital cases. Lockhart v. Nelson, 488 U.S. 33, 37 n.6

(1988) (declining to reach question of whether to expand

Bullington to non-capital sentencing proceedings); Caspari

v. Bohlen, 510 U.S. 383 (1994) (holding that extending

Bullington to non-capital sentencing proceedings would

constitute new rule of law); Monge v. California, 524 U.S.

721, 726 (1998) (declining to extend Bullington to non-

capital sentencing proceedings).

* Indeed, this is precisely what the United States has argued to

this Court in prior double jeopardy cases. See Monge v. California, 1998

WL 222955, *48-*49 (April 28, 1998) (oral argument of Amicus Curiae,

the United States of America); Caspari v. Bohlen, 1993 WL 757639, *19

(December 6, 1993) (oral argument of Amicus Curiae, the United States

of America) (“Our position is that Bullington ought not to be extended

(Continued on following page)

4

As to capital cases, however, Bullington applies

precisely as Petitioner has described. Caspari, 510 U.S. at

386 (O’Connor, J., for eight Justices)’ (“In Bullington v.

Missouri, 451 U.S. 430 (1981), we held that a defendant

sentenced to life imprisonment following a trial-like

capital sentencing proceeding is protected by the Double

Jeopardy Clause against imposition of the death penalty if

he obtains reversal of his conviction and is retried and

reconvicted.”); see Monge, 524 U.S. at 726 (“In Bullington,

we held that a capital defendant who had received a life

sentence during a penalty phase that bore ‘the hallmarks

of [a] trial on guilt or innocence’ could not be resentenced

to death upon retrial following appeal.”); Lockhart, 488

U.S. at 37 n.6 (describing Bullington as “the rule that the

Double Jeopardy Clause limits the State’s power to subject

a defendant to successive capital sentencing proceedings”);

Spaziano v. Florida, 468 U.S. 447, 458 (1984) (“the Court ~

has concluded that the Double Jeopardy Clause bars the

State from making repeated efforts to persuade a sen-

tencer to impose the death penalty”).

In the words of the United States to this Court:

[T)he rationale of Bullington was that because

there was this full trial-like process and because

it was a question of life or death, an up-down,

yes-no question, then the Court was willing to

outside the capital context; i.e. the context where life or death determi-

nations are made after a full trial-like process.”).

* Justice Stevens dissented not because he disagreed with the

Court’s articulation of the Bullington holding, but because he would

have extended Bullington to trial-like non-capital sentencing proceed-

ings. Caspari, 510 U.S. at 397-98.

5

treat the outcome of that proceeding as though it

were a verdict on the question of life or death, i.e.

innocent or guilty.

That analysis stands alone in this Court’s

sentencing cases relating to double jeopardy....

[T]he context in which it arose [was] where there

was a full trial-like procedure with an ultimate

determination of life or death.

Caspari v. Bohlen, 1993 WL 757639, at *21-*22; see also

id. at *19 (Bullington applies in “the capital context; i.e.

the context where life or death determinations are made

after a full trial-like process”).

The Double Jeopardy Clause applies to life sentences

imposed in modern trial-like capital sentencing proceed-

ings because, under the Eighth Amendment, the unique

severity and finality of the death penalty requires height-

ened procedural safeguards to assure the accuracy and

* Contrary to Respondent’s misapprehension, see Respondent's Brief

at 23-24, Petitioner has never argued that the imposition of a life

sentence in any capital trial invariably triggers double jeopardy protec-

tions. See, e.g., Stroud v. United States, 251 U.S. 15 (1919) (non-trial like

sentencing). It is the combination of the facts that death is a categorically

different type of sentence than aiiy other and that the trial-like nature of

the sentencing proceedings in Bullington, Rumsey, and this case are

unlike typical sentencing proceedings. Monge v. California, 524 U.S. at

733 (“Bullington turns on both the trial-like proceedings at issue and the

severity of the penalty at stake.”); Caspari v. Bohlen, 510 U.S. at 392

(“Both Bullington and Rumsey were capital cases, and our reasoning in

those cases was based largely on the unique circumstances of a capital

sentencing proceeding.”); Schiro v. Farley, 510 U.S. 222, 231 (1994)

(“(bjecause the capital sentencing proceeding ‘was itself a trial on the

issue of punishment,’ requiring a defendant to submit to a second,

identical proceeding was tantamount to permitting a second prosecution

of an acquitted defendant” (quoting Bullington, 451 U.S. at 446).

6

reliability of the sentence ultimately imposed, and a

sentencing proceeding that bears “the hallmarks of [a]

trial on guilt or innocence,” Bullington, 451 U.S. at 439, is

one such safeguard. Thus, “the nature and the conse-

quences of capital sentencing proceedings are inter-

twined,” and “Bullington [is] an example of the heightened

procedural protections accorded capital defendants.”

Monge, 524 U.S. at 733, 734; cf. Strickland v. Washington,

466 U.S. 668, 686-87 (1984); Spaziano, 468 U.S. at 458.

Indeed, the implications of these safeguards have

been a principal basis upon which this Court has repeat-

edly distinguished life sentences returned after a capital

penalty-phase trial from sentences in non-capital cases.’

“(T]he decisions of this Court ‘clearly establish that a

sentencling in a noncapital case) does not have the quali-

ties of constitutional finality that attend an acquittal.’”

Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985) (per

curiam) (quoting United States v. DiFrancesco, 449 U.S.

117, 134 (1980)), quoted in Caspari, 510 U.S. at 392

” Because heightened safeguards against the erroneous imposition

of a death sentence are a significant part of the reason that the Double

Jeopardy Clause applies in capital sentencing proceedings, it would be

illogical and unreasonable to then withhold double jeopardy protection

when the defendant’s life seritence is the product of a safeguard — jury

lifelock — that has been adopte. by most death penalty jurisdictions.

See Jones v. United States, 527 U.S. 373, 419 (1999) (Ginsburg, J.,

dissenting) (citing Acker & Lanier, Law, Discretion, and the Capital

Jury: Death Penalty Statutes and Proposals for Reform, 32 CRIM. L.

BULL. 134, 169 (1996) (“In twenty-five of the twenty-nine states in

which capital juries have final sentencing authority, ... a deadlocked

sentencing jury is transformed into a ‘lifelocked’ jury. That is, the jury's

inability to produce a unanimous penalty-phase verdict results in the

defendant's being sentenced to life imprisonment or life imprisonment

without parole.”).

(bracketed phrase added by the Goldhammer Court;

emphasis in Caspari). But because death is different;

becau.e “the sentencing procedures for capital cases

instituted after the decision in Furman [v. Georgia, 408

U.S. 238 (1972),] are unique,” Bullington, 451 U.S. at 441

n.15; and because that uniqueness encompasses the

heightened procedural requirements of a trial-like pro-

ceeding, the imposition of a life sentence at the conclusion

of the penalty trial carries with it a procedural finality

that is constitutionally significant.

Simply put, this Court has repeatedly stated that a

“refusal to impose the death penalty operate(s] as an

acquittal of that punishment.” Caspari, 510 U.S. at 392;

see also Initial Brief at 22-23, 25-29 (citing Schiro v.

Farley, 510 U.S. 222, 232 (1994); Poland v. Arizona, 476

U.S. 147, 152 (1986); Smalis v. Pennsylvania, 476 U.S.

140, 145 n.8 (1986); Arizona v. Rumsey, 467 U.S. 203, 211

(1984); Bullington v. Missouri, 451 U.S. 430, 445-46

(1981)).

The rule in Bullington applies to all life sentences

imposed after completion of capital sentencing proceedings

that bear the hallmarks of a trial. It does not parsimoni-

ously evaluate how a life sentence was imposed as a

precondition for granting double jeopardy protection. The

entire thrust of Bullington is that Stroud v. United States,

251 U.S. 15 (1919), and its “clean slate” rule do not apply

to capital sentencing proceedings that bear those hall-

marks.” Bullington, 451 U.S. at 432-35; Arizona v. Rumsey,

* In Stroud’s case, the applicable sentencing statute stated that:

“Every person guilty of murder in the first degree shali suffer death,”

but “the jury may qualify their verdict by adding thereto ‘without

(Continued on following page)

8

467 U.S. 203, 209-11 (1984). Amicus acknowledges that

“changes in this Court’s capital jurisprudence have limited

Stroud’s application.” Amicus Brief at 11. As the previous

discussion demonstrates, that “limitation” is in fact an

abrogation.

Respondent concedes, and the Amicus does not dis-

pute, that Pennsylvania’s capital sentencing scheme is

materially indistinguishable from those of Missouri and

Arizona, which trigger double jeopardy protections. For all

the same reasons, this case is distinguishable from Stroud.

When a defendant who has been subjected to an initial

trial-like capital sentencing proceeding and emerged with

a life sentence later obtains reversal of his conviction and

is retried and reconvicted, Bullington applies and Stroud

has no application.

B. Respondent’s and Amicus’s Reliance on

Hung Jury Cases is Misplaced; Although

Double Jeopardy Protections Do Not Re-

quire an Acquittal on the Merits, Peti-

tioner’s Life Sentence Was a Determi-

nation That He Did Not Deserve the Death

Penalty As a Matter of Law and Consti-

tuted an Acquittal.

Respondent and the United States also erroneously

rely on United States v. Perez, 22 U.S. (9 Wheat.) 579

capital punishment’; and whenever the jury shal] return a verdict

qualified as aforesaid, the person convicted shall be sentenced to

impmsonment for life.” See Bullington, 451 U.S. at 439 n.11. The juries

in the trials of the famous Birdman of Alcatraz were given no further

guidance as to how to determine the appropriate penalty. /d.

em

9

(1824), and its line of mistrial cases to argue that Peti-

tioner’s life sentence — imposed as a matter of law when

the jury deadlocked 9-3 in favor of life — is not an acquittal

barring retrial under the Double Jeopardy Clause. Re-

spondent’s Brief at 7, 21, 23; Amicus Brief at 16. Respon-

dent notes that jury non-unanimity has “traditionally

resulted in a hung jury at a trial,” at 21, and quoting

Richardson v. United States, 468 U.S. 317, 325 (1984), that

“the failure of a jury to reach a verdict is not an event

which terminates jeopardy.” However, Respondents and

Amicus overlook a central point in all these cases: the jury

deadlock resulted in mistrials that prevented the cases

from reaching completion.

Yet, under Pennsylvania’s capital sentencing statute,

jury deadlock does not produce the “traditional” mistrial.

Instead, by operation of law, “a deadlocked sentencing jury

is transformed into a ‘lifelocked’ jury” that produces a final

sentencing judgment. Acker & Lanier, Law, Discretion,

and the Capital Jury: Death Penalty Statutes and Propos-

als for Reform, 32 Crim. L. BULL. 134, 169 (1996). The

resulting life sentence is a final judgment — an acquittal of

death — which is an event that terminates jeopardy.

Even the mistrial cases acknowledge that when “the

innocence of the accused has been confirmed by a final

judgment, the Constitution conclusively presumes that a

second trial would be unfair.” Arizona v. Washington, 434

U.S. 497, 503 (1978). Where a trial or trial-like capital

sentencing proceeding “terminates with a judgment of

acquittal ... ‘double jeopardy principles governing the

permissibility of retrial after a declaration of mistrial’ have

10

no bearing.” Sanabria v. United States, 437 U.S. 54

(1978).°

Respondent’s and Amicus’s argument that Petitioner

must demonstrate that he was “acquitted on the merits” or

his life sentence is not protected by the Double Jeopardy

Clause, Respondent’s Brief at 7, 11, 16-17, 26; Amicus Brief

at 12-20, is a non-starter. There is simply no difference for

double jeopardy purposes between an “acquittal on the

merits” as contemplated by Respondent and the Amicus

and an “acquittal-by-operation-of-law” such as occurs

when a statute (such as Pennsylvania’s) prescribes that

the legal consequences of jury disagreement is the imposi-

tion of a life sentence.

Moreover, actual acquittal on the merits has never

been the sole prerequisite for double jeopardy protections.

Jeopardy is terminated and retrial barred “where the first

trial had terminated in a manner favorable to the defen-

dant because of jury verdict or because of judicial action.”

United States v. Jorn, 400 U.S. 470, 475 (1971). This

includes any acquittal, no matter how ‘egregious’ or

* Moreover, a mistrial bars retrial only if there is manifest neces-

sity for halting the trial. Richardson, 468 U.S. at 323-24 (quoting Perez,

9 Wheat. at 580). This Court has unanimously held that when Congress

has anticipated the possibility of jury deadlock and nonetheless

provided for imposition of a life sentence by operation of law, the lack of

juror unanimity does not create “good cause” to discharge the jury and

impanel a new one. Jones v. United States, 527 U.S. 373, 381 (1999); id.

at 418 (Ginsburg, J., dissenting). Although Jones involved statutory

construction, it is hard to imagine how an act that provides no good

cause to impanel a new jury can at the same time constitute manifest

necessity for a mistrial.

11

erroneous;” judicial actions that are the functional equiva-

lent of an acquittal; and the premature termination of

the proceedings without manifest necessity.”

In addition, while insufficiency of the evidence re--

quires acquittal — hence this standard of acquittal for

cases in which convictions are overturned on appeal — the

State’s failure to meet the burden of production, Respon-

dent's Brief at 24, 26, has never been a necessary prereq-

uisite to the attachment of double jeopardy.” A factfinder

* E.g., Sanabria v. United States, 437 U.S. 54, 68-69, 75 (1978)

(retrial barred where an “erroneous evidentiary ruling” that improperly

excluded admissible evidence “led to an acquittal for insufficient

evidence”); Fong Foo v. United States, 369 U.S. 141, 142-43 (1962) (per

curiam) (retrial barred following the district court’s erroneous direction

to the jury to return verdicts of acquittal based upon a combination of

perceived prosecutorial misconduct and the lack of credibility of the

prosecution witnesses).

* E.g., Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986) (demurrer at

close of prosecution's case, even if erroneously granted); United States v.

Martin Linen Supply Co., 430 U.S. 564, 570 (1977) (directed verdict

following discharge of hung jury); Sisson v. United States, 399 U.S. 267, 290

n.19 (1970) (judicially directed verdict of acquittal after court made “legal

determination on the basis of facts adduced at the trial relating to the

genera! issue of the case”).

” E.g., Jorn, 400 U.S. at 486 (jury discharged for “lack of prepar-

edness by the Government to continue the trial”); Downum v. United

States, 372 U.S. 734, 737-38 (1963) Gury discharged when prosecution

witness essential to 2 of 6 counts had not been served with summons);

Gori v. United States, 367 U.S. 364 (1961) (double jeopardy would bar

discharge of jury “to help the prosecution, at a trial in which its case

was going badly, by affording it another, more favorable opportunity to

convict”).

* Indeed, if it were, this Court could not have granted relief in

either Bullington or Rumsey, in which the State in fact met its burden

of production. The state court necessarily found that the evidence

presented at Robert Bullington’s first trial was sufficient to prove

aggravating circumstances, for it would have permitted capital

(Continued on following page)

12

or capital sentencer may — and sometimes must — enter

judgment in a defendant’s behalf despite evidence sufficient

to convict beyond a reasonable doubt. Indeed, the language

and logic of Bullington and Rumsey extend to all cases in

which the sentencer has rejected the prosecution's case for

death after a trial-like capital sentencing phase. Poland, 476

U.S. at 153 n.3 (“The analogy drawn was between a death

sentence and a verdict of guilty, a life sentence and a verdict

of innocent.”). That rejection may or may not be based on a

failure of proof with respect to some necessary precondition

for a death sentence. Either way, double jeopardy applies.“

resentencing on retrial although Missouri intended to present the exact

same evidence it had presented in his first trial. State ex rel. Westfall v.

Mason, 594 S.W.2d 9008, 925 (Mo. 1980) (Seiler, J., dissenting). And in

Rumsey, the trial court erroneously rejected evidence that was suffi-

cient to impose death.

* This can run the gamut from disbelieving the State’s evidence or

witnesses to jury nullification. In addition, state law may require

acquittal for the failure to meet a higher burden of proof than constitu-

tionally required; to meet a threshold burden of persuasion; or in any

number of other possible scenarios in which the law directs the court or

the jury to terminate the proceedings in the defendant's favor.

Respondent also argues that the statutorily directed verdict of

life is not an acquittal under Bullington and Rumsey because only “a

decision by a jury, or by an appellate court, that the prosecution had

failed to prove its case” can prevent a death-after-life capital resentenc-

ing, “(the trial court was not a decisionmaker at all, but rather an

administrator of a statutorily compelled life sentence [and njo findings

of any kind were made, let alone findings sufficient to establish any

legal entitlement to a life sentence.” Respondent's Brief at 10, 21. As

discussed more fully in the /nitial Brief at 27-28, Pennsylvania's statute

sets forth specific facts the trial court must find to establish legal

entitlement to a life sentence. 42 Pa. C.S. § 9711(c\(1\(v). In any event,

the trial court expressly “found” facts, N.T. 5/10/91, at 63, J. A. at 23,

that established the Commonwealth's failure to prove its case for death

as a matter of law.

13

Here, the trial court’s finding that the sentencing jury

could not reach unanimity was a determination as a

matter of state law that the State had not sufficiently

proven its case for death. That rejection of the State’s case

was “an acquittal on the merits”; the imposition of a life

sentence in a trial-like capital sentencing proceeding was

an “acquittal” of death; and whether or not the statutorily

mandated life sentence is denominated an “acquittal,” it

was a final judgment that terminated Petitioner’s jeopardy

of death and triggered the protections of the Double

Jeopardy Clause.

C. Ring v. Arizona Further Supports the

Bullington Rule that the Imposition of

Life Sentence is An Acquittal of the Death

Penalty. ;

This Court decided Ring v. Arizona, 122 S. Ct. 2428

(2002), after Petitioner filed his Initial Brief. Petitioner

disagrees with the Amicus’s assertion that “Ring has no

bearing” on this case. Amicus Brief at 14 n.5. True enough,

Ring is not necessary to establish Bullington’s rule that,

because death is constitutionally different, a life sentence

imposed at the conclusion of a trial-like capital sentencing

proceeding is an acquittal of the death penalty. Nonethe-

less, Ring confirms and strengthens that result.

Pennsylvania’s statutory requirement of proving at

least one aggravating circumstance before Petitioner could

be death-eligible “[ijn effect ... exposed [him] to a greater

punishment than that authorized by the guilty verdict”

alone. Ring, 122 S.Ct. at 2440. Consequently, Pennsyl-

vania’s first-degree murder statute can be said to “author-

ize{ ] a maximum penalty of death only in a formal sense,

for it explicitly cross-references the statutory provision

14

requiring the finding of an aggravating circumstance

before imposition of the death penalty.” Jd. (citation

omitted). Thus, “whether the [sentencing] statute calls

them elements of the offense, sentencing factors, or Mary

Jane,” id. at 2444 (Scalia, J., concurring), Pennsylvania's

aggravating circumstances are “the functional equivalent

of an element of a greater offense” — i.e., capital murder.

Id. at 2443 (majority opinion).

That the sentencing determination is the functional

equivalent of a greater offense necessarily entails that the

crime of first-degree murder is a different, lesser offense.

It also signals that the jeopardy of life a defendant faces in

the trial-like penalty phase of a capital proceeding is

separate and independent of the jeopardy of liberty he

faced in the guilt phase. This stand-alone jeopardy, in

turn, distinguishes these trial-like sentencing proceedings

from traditional sentences that “do not place a defendant

in jeopardy for an ‘offense.’” Monge v. California, 524 U.S.

721, 728 (1998); id. at 729.

Since “capital murder” is a greater offense than first-

degree murder, a final adjudication of life - by whatever

means — is an acquittal of that offense. And if, as here, the

stand-alone penalty-phase jeopardy has been terminated

by a life verdict that cannot be appealed, the status of that

acquittal cannot be affected by the outcome of an appeal of

a different offense as to which the defendant faces continu-

ing jeopardy. Green v. United States, 355 U.S. 184, 190-91

(1957). Thus, Ring enhances Petitioner's argument that

when a statute has Bullington-style procedures for adjudi-

cating the State’s case for death, a favorable sentencing-

phase decision on life or death is equivalent to an acquittal

of death.

15

Il. Respondent Admits that Petitioner Had a Life

and Liberty Interest in the Statutorily Man-

dated Life Sentence the Trial Court Imposed

When the Sentencing Jury in His First Trial

Lifelocked; That Interest Necessarily Encom-

passes An Expectation in the Finality of His

Life Sentence.”

Respondent concedes that

When a state provides for a jury to impose crimi-

nal punishment, the defendant has “a substan-

tial and legitimate expectation that he will be

deprived of his liberty only to the extent deter-

mined by the jury in the exercise of its statutory

discretion.” Hicks v. Oklahoma, 447 U.S. at 346.

Respondent's Brief at 40. It further agrees “that, at the time

the jury is deadlocked, the [Pennsylvania capital sentencing)

statute creates in the defendant a life and liberty interest in

the imposition of a life sentence.”-Jd. at 38.

Respondent’s concession that Pennsylvania's statute

vested in Petitioner some form of life and liberty interest

significantly narrows the issue before this Court. The sole

issue now is the scope of that interest. Respondent argues

that Petitioner’s life and liberty interest in the statutorily

mandatory directed life verdict resulting from the jury

* The Amicus, United States of America, addresses a materially

different due process question in its brief than the due process “life and

liberty interest” question for which Petitioner sought and this Court

granted certiorari. The Amicus’s reformulation poses a due process

issue that Petitioner did not raise in this Court, did not ask this Court

to consider, and which Petitioner has not brnefed Petitioner's reply

limits itself to the due process life and liberty interest issue actually

before the Court.

16

lifelock is not “immutable” and “does not survive the

vacation of the original life sentence.” Jd. at 30, 32.”

Petitioner’s “substantial and legitimate expectation” —

in the life sentence he received in his first capital sentenc-

ing proceeding was not (as Respondent suggests) “only” in

the “ministerial act” of having a life sentence imposed, id.

at 40; it was in the enforcement and finality of that

sentence. That expectation is the same whether the

ultimate decision-maker is the jury or the judge and

whether the sentence is imposed by operation of law as a

result of a unanimous jury verdict or by operation of law

as a consequence of jury lifelock. As described in the

Initial Brief (at 35-37), both outcomes are an integral part

" Respondent also concedes that Petitioner “has a liberty interest

in the jury’s being informed of all the sentences which it can impose,”

but suggests that there was no violation of Petitioner's life and liberty

interest in this case because “Sattazahn’s jury was informed that it

could by unanimous agreement sentence him to life imprisonment or

death.” Respondent's Brief at 40. This argument, however, misses the

point. Petitioner is not arguing that the life sentence he received in his

first trial violated his life and liberty interest in a jury verdict based on

the proper exercise of its statutory discretion. While Petitioner agrees

with Respondent that such a life and liberty interest exists, its contours

are not at issue in this case. What is at issue here is the enforcement in

his second trial of his life and liberty interest in the judicially directed

verdict of life that was properly imposed in the first tral.

“ Contrary to Respondent's suggestion, the judge performs the

same “ministerial act” when the jury reaches a unanimous life verdict.

42 Pa. C'S. § 9711l(g) (“Recording sentencing verdict. - Whenever the

jury shall agree upon a sentencing verdict, it shal] be received and

recorded by the court. The court shal] thereafter impose upon the

defendant the sentence fixed by the jury.”), and Respondent surely

would not contend that the expectations of a defendant who received a

life sentence from the jury would be limited to having the court

formally pronounce and impose that sentence.

17

of the Commonwealth’s system of finally adjudicating life

or death, and both are statutorily mandated.”

In addition, trial-like capital sentencing proceedings

have “qualities of constitutional finality” not present in

non-capital cases. See supra at 6-7. The defendant in such

proceedings has a substantial and legitimate expectation

that, if a lifelocked jury produces a mandatory life sen-

tence, he will be deprived only of his liberty and not of his

life.

Further, Respondent’s assertion that Petitioner’s

expectation of finality “does not survive the vacation of the

origina! life sentence” is both unfounded and a misnomer.

Petitioner did not vacate his life sentence; he overturned

his conviction.” Moreover, he did not and Pennsylvania as

a matter of law could not appeal his life sentence. /nitial

Brief at 36-37. With nothing to be vacated, there was no

intervening act for the life sentence to survive. Instead,

the statutory unavailability of appellate review of a life

“ There is no support for Respondent's argument that the Penn-

sylvania sentencing statute treats life sentences differently depending

upon whether they are the product of a unanimous jury verdict or a

statutorily directed judicial verdict. The sole substantive reference to

life verdicts in Pennsylvania's sentencing statute does not distinguish

between the two. 42 Pa. C.S. § 971lic\(1iv) (“The verdict must be a

sentence of life impmsonment in al] other cases”) The remaining

sections dealing with life sentences either tel! the jury to fill out the

verdict form when it has reached a unanimous verdict, 42 Pa CS

§ 9711(f), or set forth the mechanisms by which the court must impose

that sentence, 42 Pa. C.S. § 971lic\(1)v) (lifelocked jury); 42 Pa. C.S

§ 9711(g) (unanimous jury)

* If it were otherwise, a life verdict from a unanimous capital

sentencing jury also would not survive reversal of a first-degree

conviction

18

sentence provided yet additional expectation of its finality,

cf. United States v. DiFrancesco, 449 U.S. 117, 139 (1980)

(where the legislature “has specifically provided that the

sentence is subject to appeal ... there can be no expecta-

tion of finality in the original sentence”), particularly in a

legislative scheme in which the sentencing trial was a

separate proceeding adjudicating the functional equivalent

of a separate offense. Ring v. Arizona, 122 S. Ct. 2428,

2243 (2002).

Finally, Respondent contends that this Court’s life and

liberty interest cases recognize only transient procedural

protections, and do not carry over to subsequent proceed-

ings. But that is only because the violations presented to

the Court thus far involve deprivations of the original

process, so there is no favorable outcome to protect. Evitts

v. Lucey, 469 U.S. 387 (1985) unquestionably would

guarantee the future effective assistance of counsel that

initially was denied. Ford v. Wainwright, 477 U.S. 399

(1986) guarantees notice and effective participation in

future competency proceeding, and unquestionably pro-

tects the defendant's legitimate expectation in the en-

forcement of a favorable outcome. Thus, Ford guarantees

that an individual adjudicated to be incompetent will not

be executed while incompetent. Similarly, a person who

received favorable consideration in Ohio’s clemency

proceedings, Ohio Adult Parole Authority v. Woodward,

477 U.S. 272 (1998), would have a protected interest in the

enforcement and finality of any grant of clemency.

Pennsylvania created a constitutionally protected life

and liberty interest in the finality of the life judgment

statutorily mandated as a result of a lifelocked jury. That

right vested when the court found the jury deadlocked and

imposed a mandatory life sentence. Subjecting Petitioner

19

to a capital resentencimg once that right has vested vio-

lated due process.

Respectfully submitted,

ROBERT BRETT DUNHAM

ANNE L. SAUNDERS

DEFENDER ASSOCIATION

OF PHILADELPHIA

Federal Court Division

Independence Square West

Suite 545 West,

The Curtis Center

Philadelphia, PA 19106

(215) 928-0520

JOHN T. ADAMS, ESQUIRE

LINTON, DISTASIO, ADAMS,

& PALANGE, PC.

1720 Mineral Spring Road

P.O. Box 461

Reading, PA 19603-0461

(610) 374-7320

Counsel for Petitioner,

David Alien Sattazahn