Amicus Curiae Brief — Oregon v. Guzek

Supreme Court. US.

— iLE D

2 JUL 22 2005 |

(<7 |_ OFFICE OF THE CLERK |

No. 04-928

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IN THE

Supreme Court of the United States

+

STATE OF OREGON.

Petitioner,

We

RANDY LEE GUZEK.

Respondent.

+

On Writ of Certiorari to the

Supreme Court of Oregon

+

BRIEF OF THE STATES OF ALABAMA, ARIZONA,

COLORADO, CONNECTICUT, DELAWARE,

FLORIDA, IDAHO, KANSAS, MISSISSIPPI,

MISSOURI, MONTANA, NEVADA, OHIO,

PENNSYLVANIA, SOUTH DAKOTA, TEXAS, UTAH,

VIRGINIA, AND WASHINGTON AS AMICI CURIAE

IN SUPPORT OF PETITIONER

8

vy

TROY KING

Attorney Genera]

KEVIN C. NEWSOM

Solicitor General

Counsel of Record

STATE OF ALABAMA

11 South Union Street

Montgomery, AL 36130-0152

July 22, 2005 (334) 242-7300

LS inns

ADDITIONAL COUNSEL

TERRY GODDARD

ATTORNEY GENERAL

STATE OF ARIZONA

1275 W. Washington St.

Phoenix, AZ 85007

JOHN W. SUTHERS

ATTORNEY GENERAL

STATE OF COLORADO

1525 Sherman Street

Denver, CO 80203

CHRISTOPHER L.

MORANO

CHIEF STATE’S ATTORNEY

STATE OF CONNECTICUT

300 Corporate Place

Rocky Hill, CT 06067

M. JANE BRADY

ATTORNEY GENERAL

STATE OF DELAWARE

Department of Justice

820 N. French Street

Wilmington, DE 19801

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

STATE OF FLORIDA

The Capitol PL-01

Tallahassee, FL 32399-

1050

LAWRENCE G. WASDEN

ATTORNEY GENERAL

STATE OF IDAHO

P.O. Box 83720

Boise, ID 83720-0010

PHILL KLINE

ATTORNEY GENERAL

STATE OF KANSAS

120 S.W. 10th Avenue

Topeka, KS 66612-1597

JIM HOOD

ATTORNEY GENERAL

STATE OF MISSISSIPPI

P.O. Box 220

Jackson, MS 39205

JEREMIAH W. (JAY)

NIXON

ATTORNEY GENERAL

STATE OF MISSOURI

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

MIKE MCGRATH

ATTORNEY GENERAL

STATE OF MONTANA

Justice Building

215 N. Sanders

P.O. Box 201401

Helena, MT 59620-1401

BRIAN SANDOVAL

ATTORNEY GENERAL

STATE OF NEVADA

Nevada Dep't of Justice

100 North Carson Street

Carson City, NV 89701

JIM PETRO

ATTORNEY GENERAL

STATE OF OHIO

State Office Tower

30 E. Broad St.

Columbus, OH 43215-

3428

THOMAS W. CORBETT, JR.

ATTORNEY GENERAL

COMMONWEALTH OF

PENNSYLVANIA

16th Floor

Strawberry Square

Harrisburg, PA 17120

LAWRENCE E. LONG

ATTORNEY GENERAL

STATE OF SOUTH DAKOTA

500 East Capitol Avenue

Pierre, SD 57501-5070

GREG ABBOTT

ATTORNEY GENERAL

STATE OF TEXAS

Capitol Station

P.O. Box 12548

Austin, TX 78711-2548

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

Utah State Office

Complex

East Office Bldg.

Suite 320

Salt Lake City, UT

84114-232

JUDITH WILLIAMS

JAGDMANN

ATTORNEY GENERAL

COMMONWEALTH OF

VIRGINIA

900 East Main Street

Richmond, VA 23219

ROB MCKENNA

ATTORNEY GENERAL

STATE OF WASHINGTON

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

QUESTION PRESENTED

In Franklin v. Lynaugh, this Court concluded that a

capital defendant does not have a constitutional right to

an instruction telling the jury in the penalty phase to

consider “residual doubt” about defendant’s guilt. Most

state and federal appellate courts have relied on Franklin

to conclude that a capital defendant has no constitutional

right to offer evidence and argue in a penalty-phase

proceeding that he should receive a sentence less than

death because he continues to assert his innocence of the

underlying crime. The Oregon Supreme Court, however,

held in this case that a capital defendant has a federal

constitutional right to present in a penalty-phase proceed-

ing alibi evidence that casts doubt on his guilt. The

question presented is:

Does a capital defendant have a right under the

Eighth and Fourteenth Amendments to the United States

Constitution to offer evidence and argument in support of

a residual-doubt claim that is, that the jury in a pen-

alty-phase proceeding should consider doubt about the

defendant’s guilt in deciding whether to impose the death

penalty?

‘i

TABLE OF CONTENTS

SOs IG — i

IZ. —᷑——-— — iii

INTEREST OF AMICI CURIAE. . . .. . . 1

— cece 1

SUMMARY OF ARGUMENT. ———————————k 2

— ——ꝛ— — — — — 4

I. There Is No Basis in This Court’s Precedent for

Constitutionalizing Residual Doubt. 6

II. There Is No Basis in the History of the

Reasonable-Doubt Standard for Constitution-

r 9

III. There Is No Basis in Logic for Constitution

0 . 12

IV. The Constitutionalization of Residual Doubt

Would Entail Significant Societal Costs..................... 15

— — —— — 17

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 441 U.S. 418 (1979). . 14

Bell uv. Ohio, 438 U.S. 637 (1978) . . . . 8, 9

Bonds Case, 27 How. St. Tr. 523 (Ir. 1798) . . . 10

Buford v. State, 403 So. 2d 943 (Fla. 1981) . 13

Davis v. United States, 160 U.S. 469 (1895) . . . 4

Finney s Case, 26 How. St. Tr. 1019 (Ir. 1798) q 10

Franklin u. Lynaugh, 487 U.S. 164 (1988)............... passim

Green v. Georgia, 442 U.S. 95 (1979) . 8,9

In re Winship, 397 U.S. 358 (1970) . 4,14

Jackson v. Virginia, 443 U.S. 307 (1979) . . .. 13

Leland v. Oregon, 343 U.S. 790 (1952) . . .. . 4

Lockett v. Ohio, 438 U.S. 586 (1978) . . 8, 9

Lockhart v. McCree, 476 U.S. 162 (1986) 6

People v. Musselwhite, 954 P. 2d 475 (Cal. 1998)............... 5

Smith v. Balkcom, 660 F. 2d 573 (5th Cir. 1981) 13

State v. McGuire, 686 N.E.2d 1112 (Ohio 1997)............... 14

State v. Thomas, 158 S.W.3d 361 (Tenn. 2005) ................. 5

Taylor v. State, 404 S.E.2d 255 (Ga. 1991). 5

United States v. Abel, 469 U.S. 45 (1984) . 15

Rules

Ain. — 15

iv

Other Authorities

Oxford English Dictionary (2d ed. 1989) . 13

Webster’s Third New International Dictionary

— Äeee 13

Report on the Governors Commission on Capital

Punishment (submitted to Illinois Governor

George H. Ryan April 15, 2002) . . . .. 14

Wigmore on Evidence (Chadbourne rev. 1981) . . 11

Margery Malkin Koosed, Averting Mistaken

Executions by Adopting the Model Penal Code’s

Exclusion of Death in the Presence of Lingering

Doubt, 21 N. III. U. L. Rev. 41 (2001) . . 5, 12

Erik Lillquist, Absolute Certainty and the Death

Penalty, 42 Am. Crim. L. Rev. 45 (2005) . 10, 11, 14

Erik Lillquist, Recasting Reasonable Doubt:

Decision Theory and the Virtues of Variability,

36 U.C. Davis L. Rev. 85 (2002) . . . . . .. . . . . 11

Hon. John Wilder May, Some Rules of Evidence:

Reasonable Doubt in Civil and Criminal Cases,

ELI • 11

Jon O. Newman, Beyond “Reasonable Doubt,” 68

III 10

Leonard B. Sand & Danielle L. Rose, Proof Beyond

All Possible Doubt: Is There a Need for a

Higher Burden of Proof When the Sentence May

Be Death?, 78 Chi.-Kent L. Rev. 1359 (2003)............... 5

Steve Sheppard, The Metamorphoses of Reasonable

Doubt: How Changes in the Burden of Proof

Have Weakened the Presumption of Innocence,

78 Notre Dame L. Rev. 1165 (2003) . 10, 11

*

Jennifer R. Treadway, Note, “Residual Doubt” in

Capital Sentencing: No Doubt It Is an

Appropriate Mitigating Factor, 43 Case W. Res.

L. Rev. 215 (1992)

INTEREST OF AMICI CURIAE

Each of the amici States employs the death penalty, in

appropriate circumstances, as a means of punishing

society's vilest offenders. As a matter of public policy,

some of the amici here may choose (either now or in the

future) to permit convicted capital-murder defendants to

argue “residual doubt” to sentencing juries. Others have

chosen (or someday will choose) not to allow such argu-

ments. But amici are united in believing that States

ought to be able to make that policy choice for themselves

and that the Eighth Amendment should not be construed

to impose a wooden, across-the-board rule requiring the

admission of residual-doubt arguments.

STATEMENT

Having already been convicted of the capital murders

of Rod and Lois Houser, respondent Randy Lee Guzek

proposed to present at his sentencing hearing purport-

edly as “mitigating” evidence an alibi that would have

put him somewhere other than the victims’ home at the

time of the killings. In other words, notwithstanding the

fact that he had already been found guilty of the murders,

Guzek sought to prove at sentencing that, in fact, he

hadn’t committed them. The trial court excluded Guzek’s

alibi-based “residual doubt” evidence as irrelevant to any

issue that remained open on sentencing. The Oregon

Supreme Court reversed and remanded for resentencing.

As relevant here, the court held that Guzek had a federal

constitutional right — grounded in the Eighth Amendment

— to present his residual-doubt argument to the sentenc-

ing jury.

That holding is misguided and should be reversed.

2

SUMMARY OF ARGUMENT

The Oregon Supreme Court’s decision — that a defen-

dant, having already been convicted of capital murder,

has an Eighth Amendment right to re-argue his innocence

to his sentencing jury — finds no support either in this

Court’s case law, in history, or in logic, and entails signifi-

cant practical costs. It should be rejected.

1. The plurality and concurring opinions in Franklin

v. Lynaugh, 487 U.S. 164 (1988), show the error of the

Oregon court’s decision. Although technically deciding

the case before it on another basis, the Franklin plural ty

emphasized that nothing in this Court’s decisions “sug-

gest[s] that capital defendants have a right to demand

jury consideration of ‘residual doubts’ in the sentencing

phase” and, further, that existing precedent “fail[s] to

recognize a constitutional right to have such doubts

considered as a mitigating factor.” Id. at 173-74 (empha-

sis in original). Concurring in Franklin, Justices

O’Connor and Blackmun would have gone farther and

held squarely that “the Eighth Amendment does not

require” States to permit defendants to make (or juries to

consider) residual-doubt arguments. Id. at 187

(O'Connor, J., concurring). The Oregon court’s back-

handed dismissal of Franklin — in a brief footnote ap-

pended to the last sentence of its discussion — is, with

respect, inexplicable.

2. The Oregon Supreme Court’s decision constitu-

tionalizing residual doubt goes a long way (if not quite all

the way) toward increasing the prosecution’s burden of

proof in capital cases from the familiar “beyond a reason-

able doubt” standard to something like a “beyond all

possible doubt” standard. The history of the reasonable-

doubt standard does not justify that departure, for two

reasons. First, the reasonable-doubt standard arose in

the late eighteenth century in response to the Enlighten-

ment view that absolute certainty in human endeavors is

on —

— — — —y— —

3

unattainable. Against that backdrop, a determination of

guilt “beyond a reasonable doubt” reflects the highest

degree of certainty possible in human affairs and signifies

to the community that the defendant is - in fact - guilty.

Historically, then, “beyond a reasonable doubt” is as

stringent a standard as can practicably be implemented

there is no room for a higher threshold. Second, the

reasonable-doubt standard was originally employed

exclusively (or at least particularly) in capital cases.

Thus, while some modern scholars have urged extra

protection — over and above the reasonable-doubt stan-

dard — for capital cases, in fact, the reasonable-doubt

standard is the extra protection for capital cases.

3. There is also no basis in logic for a rule that envi-

sions a capital defendant asking a sentencing-phase jury

to conclude that he may well not be guilty of the crime for

which the guilt-phase jury has elready convicted him. As

an initial matter, it is worth noting that any doubt that

exists on the other side of the certainty “beyond a reason-

able doubt” required for conviction is, by definition,

unreasonable — i.e., “irrational,” “absurd,” “inappropriate,”

and “incongruous.” The Court should be slow to cement

into the Constitution a rule that would free jurors to

make life-and-death decisions based on unreasonable

hunches and impulses. Moreover, although the reason-

able-doubt standard guides a jury’s determination of guilt

— and in some philosophical sense may permit conviction

on something less than absolute certainty — once the

jury's determination is reduced to a verdict, the law treats

the defendant as “Guilty” in fact: he did it, he intended to

do it, he caused the harm, etc. A residual-doubt argu-

ment literally invites the jury to undo (or to ignore, or to

compromise) — and makes something of a mockery of - its

solemn verdict that the defendant is “Guilty.”

4. A uniform national rule requiring States to permit

consideration of residual-doubt arguments would entail

significant real-world costs. First, there is the confusion

4

that would almost certainly arise in the minds of some

jurors when faced with (i) a verdict that the defendant is

indeed “Guilty” of the crime charged and (ii) an argument

that, on second thought, maybe the defendant isn’t guilty,

after all. Second, there are very real costs to requiring a

prosecutor who as already established a defendant’s guilt

during the guilt phase of a capital trial to re-establish it

for purposes of sentencing. Reconstructing a guilt-phase

case would likely entail, among other things, re-calling

numerous witnesses — some of whose memories may have

faded, others who may not longer be available to testify at

all.

ARGUMENT

There is of course no dispute that, under this Court’s

decisions, the Due Process Clause requires that a State

prove a criminal defendant’s guilt “beyond a reasonable

doubt.” See In re Winship, 397 U.S. 358, 361-64 (1970).

Notwithstanding the severity of the penalty faced by a

defendant in a capital-murder case, that standard of proof

does not change. Indeed, in establishing the reasonable-

doubt standard as a federal constitutional requirement,

the Court in Winship repeatedly described it as applicable

(generically) in all “criminal” cases, see id. at 361, 362,

363, 364, and, in fact, quoted for support its earlier

decision in Davis v. United States, 160 U.S. 469, 488

(1895), for the proposition that Ino man should be

deprived of his life under the forms of law unless the

jurors who try him are able, upon their consciences, to say

that the evidence before them ... is sufficient to show

beyond a reasonable doubt the existence of every fact

necessary to constitute the crime charged,” 397 U.S. at

363 (emphasis added); accord id. at 362 (citing Leland v.

Oregon, 343 U.S. 790, 795 (1952), a capital-murder case,

as precedent for reasonable-doubt standard).

— ee eee

5

The Oregon Supreme Court’s decision permitting a

defendant to introduce “residual doubt” evidence during

the penalty phase of his capital-murder case and follow-

ing a determination of guilt beyond a reasonable doubt

boldly moves in the direction of raising the standard of

proof, such that a State must prove its case beyond all

possible doubt in order to obtain a death sentence.

Several commentators have urged precisely that result in

one form or another. See, e.g., Leonard B. Sand & Dan-

ielle L. Rose, Proof Beyond All Possible Doubt: Is There a

Need for a Higher Burden of Proof When the Sentence May

Be Death?, 78 Chi.-Kent L. Rev. 1359 (2003); Margery

Malkin Koosed, Averting Mistaken Executions by Adopt-

ing the Model Penal Code’s Exclusion of Death in the

Presence of Lingering Doubt, 21 N. Ill. U. L. Rev. 41

(2001). These proposals — variously requiring “no doubt”

or proof “beyond any doubt” - may or may not make sense

as a matter of public policy. And, of course, individual

States are free to authorize the consideration of residual-

doubt evidence in capital-sentencing hearings, either by

state statute or by judicial construction of a state consti-

tutional provision.!

The question here, though, is different. The question

here is whether the Eighth Amendment to the United

States Constitution of its own force requires every State in

the union to allow the consideration of residual-doubt

evidence, and thus (practically speaking) to ratchet up the

standard of proof in capital cases. It does not. Indeed, as

we will show, Guzek’s call for further constitutionaliza-

tion of state criminal procedure finds no support either in

this Court’s precedent or in the history or logic of the

reasonable-doubt standard. It should be rejected.

See, e. g., State u. Thomas, 158 S.W.3d 361, 403 (Tenn. 2005); People

v. Musselwhite, 954 P.2d 475, 510 (Cal. 1998); Taylor v. State, 404

S.E.2d 255, 262 (Ga. 1991).

6

I. There Is No Basis in This Court’s Precedent for

Constitutionalizing Residual Doubt.

This Court’s case law pertaining to the question pre-

sented is remarkably straightforward, and Oregon’s

thorough doctrinal analysis (Oregon Br. 20-34) persua-

sively makes the case against Guzek’s position. Accord-

ingly, we provide only a Cliffs Notes version. As Oregon's

brief correctly points out, the plurality and concurring

opinions in Franklin v. Lynaugh, 487 U.S. 164 (1988),

essentially resolve the issues here. See Oregon Br. 29-34.

To reverse the Oregon Supreme Court’s decision, this

Court need only reaffirm — and formalize — what it said in

Franklin.

By way of background, the notion of “residual doubt”

came to the fore initially in Lockhart uv. McCree, 476 U.S.

162 (1986), a case about the “death qualification” of

jurors. There, while discussing the use of “unitary juries”

in capital cases, this Court noted in passing “the possibil-

ity that, in at least some capital cases, the defendant

might benefit at the sentencing phase of the trial from the

jury’s ‘residual doubts’ about the evidence presented at

the guilt phase.” Id. at 181. Seeking to capitalize on that

remark, the petitioner in Franklin argued that it entitled

him to a charge instructing the sentencing-phase jury to

reconsider his guilt — specifically, to rethink whether he

was actually the murderer, whether he actually caused

the victim’s death, and whether actually he had the

requisite intent to kill. 487 U.S. at 172. The Franklin

Court rejected his argument, and in the process, came

close to resolving the question presented in this case.

“At the outset,” the plurality in Franklin emphasized

that the Court had never held, in Lockhart or elsewhere,

“that a capital defendant has a constitutional right to an

instruction telling the jury to revisit the question of his

identity as the murderer as a basis for mitigation.” Id. at

172-73. All that the Lockhart dicta stood for, the plurality

7

said, was “the simple truism that where ‘States are

willing to go to allow defendants to capitalize on “residual

doubts,” such doubts will inure to the defendant’s bene-

fit.” Id. at 173 (emphasis in original). More to the point

for present purposes, the Franklin plurality stressed that

“Lockhart did not endorse capital sentencing schemes

which permit such use of ‘residual doubts,’ let alone

suggest that capital defendants have a right to demand

jury consideration of ‘residual doubts’ in the sentencing

phase.” Jd. (emphasis in original); see also id. at 174

(using scare quotes to refer to claimed “right” to have jury

consider residual doubt). And, indeed, the plurality

decision pointed out the fact that the Court had “not

struck down the practice in some States of prohibiting the

consideration of ‘residual doubts’ during the punishment

trial.” Id. The Franklin plurality summed up in d way

that — at least as a matter of existing doctrine — would

seem to foreclose Guzek's claim here:

Our edict that, in a capital case, the sentencer .. .

[may] not be precluded from considering as a miti-

gating factor, any aspect of a defendant’s character

or record and any of the circumstances of the of-

fense,” in no way mandates reconsideration by

capital juries, in the sentencing phase, of their “re-

sidual doubts over a defendant’s guilt.” Such lin-

gering doubts are not over any aspect of a peti-

tioner’s “character,” “record,” or a “circumstance of

the offense.” This Courts prior decisions, as we

understand them, fail to recognize a constitutional

right to have such doubts considered as a mitigat-

ing factor.

Id. at 174 (citation omitted and emphasis added). Having

said all of that, the Franklin plurality ultimately con-

cluded that, in any event, the trial court’s reject.on of the

defendant's proposed jury instructions did not prejudice

his ability to argue — or the jury’s ability to consider — the

residual-doubt issue.

8

Joined by Justice Blackmun in a concurring opinion,

Justice O’Connor would have gone farther and squarely

rejected the contention that the Eighth Amendment

requires States to permit residual-doubt arguments. “In

her]! view,” the condemned’s residual-doubt claim

“failfed], not because the Texas scheme allowed for

consideration of ‘residual doubt’ by the sentencing body,

but rather because the Eighth Amendment does not

require it.” Id. at 187 (emphasis added). The Court's

cases, Justice O’Connor said, simply “do not support the

proposition that a defendant who has been found to be

guilty of a capital crime beyond a reasonable doubt has a

constitutional right to reconsideration by the sentencing

body of lingering doubts about his guilt.” Id. Percep-

tively, Justice O Connor observed that a residual-doubt

claim (however packaged) is tantamount to an argument

“that the States must permit capital sentencing bodies to

demand proof of guilt to ‘an absolute certainty’ before

imposing the death sentence.” Jd. at 188. “Nothing in

[the Court’s] cases,” she said, “mandates the imposition of

this heightened burden of proof at capital sentencing.” Id.

Together, the plurality and concurring opinions in

Franklin put the writing on the wall for all to see: What-

ever individual States may choose to do as a matter of

public policy (or even as a matter of state constitutional

law), the Eighth Amendment does not in and of itself

require them to permit capital defendants to argue

residual doubt to sentencing-phase juries. The Oregon

Supreme Court’s backhanded treatment of Franklin is,

with respect, puzzling. Having spent pages and pages of

analysis trying to tease a residual-doubt right out of

Lockett v. Ohio, 438 U.S. 586 (1978), and Bell v. Ohio, 438

U.S. 637 (1978) — decisions it conceded were distinguish-

able (Pet. App. 57-58) — as well as out of the specific facts

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

Oregon court relegated Franklin to a footnote appended to

the very last sentence of its analysis. All the Oregon

— —

9

court had to say about Franklin was that a plurality of

the Supreme Court strongly suggested, and the concur-

rence would have held, that the Eighth Amendment does

not require an instruction that a penalty-phase jury

consider any residual or lingering doubts remaining from

the guilt phase” but that, in its view, Franklin did not

“lessen{] the direction” from Lockett, Bell, and Green that

the Eighth Amendment does require that a defendant be

permitted to introduce residual-doubt evidence. Pet. App.

62-63 (emphasis in original).

There are two fundamental problems with the Oregon

Supreme Court’s attempted distinction. First, the court’s

characterization of the opinions in Franklin seems to us

incorrect. A more accurate summary supported by the

quotations above — would be that the Franklin plurality

“strongly suggested, and the concurrence would have

held, that the Eighth Amendment does not require” States

to permit considerſation / residual-doubt evidence at all.

See 487 U.S. at 174 (plurality); id. at 187 (O'Connor, J.,

concurring). Second, as the dissenting judges below

emphasized, it is simply “impossible to imagine” how the

plurality and concurring opinions in Franklin “could say

what they said” if the Oregon court’s reading of Lockett,

Bell, and Green all of which pre- date Franklin by nearly

a decade — were correct. Pet. App. 71-72. (Tellingly, the

Franklin opinions do not so much as mention Green, the

decision the court below thought the surest source of a

residual-doubt right.)

It seems to us inarguable that the clearest (and most

recent) signal is Franklin, and we urge the Court to

reaffirm what it said there.

II. There Is No Basis in the History of the Reason-

able-Doubt Standard for Constitutionalizing

Residual Doubt.

There is also no historical basis for minting, as a mat-

ter of federal constitutional law, a new standard of proof

10

in capital cases: “beyond any doubt” (or “no doubt”) in

place of the familiar “beyond a reasonable doubt.” (As

noted above, Guzek’s residual-doubt position certainly

tends strongly in that direction. See supra at 4-5.) The

origins of the reasonable-doubt standard are, frankly, a

little hazy. Before its advent, there was no formal stan-

dard of proof in criminal cases, and “it was generally

assumed that juries were to return true verdicts.” Erik

Lillquist, Absolute Certainty and the Death Penalty, 42

Am. Crim. L. Rev. 45, 48 (2005) (hereinafter Lillquist,

Absolute Certainty). Some scholars trace the reasonable-

doubt standard to the so-called Irish Treason Cases.? See,

e.g., Jon O. Newman, Beyond “Reasonable Doubt,” 68

N.Y.U. L. Rev. 979, 981-82 (1993). Others date the

standard’s appearance somewhat earlier, to prosecutor

Robert Treat Paine’s argument in the Boston Massacre

trials of 1770. See, e.g., Steve Sheppard, The Metamor-

phoses of Reasonable Doubt: How Changes in the Burden

of Proof Have Weakened the Presumption of Innocence, 78

Notre Dame L. Rev. 1165, 1191 (2003). In either event,

there are two historical points worth noting here.

First, ſcloncern about the requisite level of juror cer-

tainty for a criminal conviction arose around the same

time as Enlightenment thinkers became concerned with

the ability of humans to obtain certainty in any endeavor,

but in particular in scientific matters.” Lillquist, Absolute

Certainty, supra, at 48. The notion of reasonable doubt,

like that of “moral certainty,” “accorded with [these]

contemporary views about the nature of judgment,” id. at

49 (quoting Sheppard, supra, at 1192), and, more specifi-

cally, “developed against [the] philosophical understand-

ing that true absolute certainty is impossible,” id. at 74.

In other words, the reasonable-doubt standard “was

originally understood to capture the highest degree of

2 Finney’s Case, 26 How. St. Tr. 1019 (Ir. 1798); Bond's Case, 27 How.

St. Tr. 523 (Ir. 1798).

11

certainty possible in human affairs.” Id. at 73. A jury’s

determination that a defendant was guilty beyond a

reasonable doubt,” that is, meant (allowing for the unat-

tainability of perfect knowledge) that the defendant was

in fact — guilty.

The second historical point is this: In its origin, the

reasonable-doubt standard was a protection developed

specifically for capital cases; indeed, “the early life of the

reasonable-doubt instruction appears to be limited solely

to capital trials.” Sheppard, supra, at 1195 (emphasis

added); accord 9 Wigmore on Evidence §2497, at 405

(Chadbourne rev. 1981) (standard was “applied first only

in capital cases”). Specifically, scholars seem to agree

that the rise of the reasonable-doubt standard was tied

directly to increasing public discomfort with the imposi-

tion of the death penalty for relatively minor crimes:

[T]he standard began to take shape at a time when

“the penal code of England was a fearfully bloody

code. Death, without benefit of clergy, was de-

nounced against a multitude of misdoings which

would now be considered, if offences at all, offences

of a comparatively trivial character. The conse-

quences of conviction to the unfortunate prisoner

were not only fearful, but they were irremediable.”

Erik Lillquist, Recasting Reasonable Doubt: Decision

Theory and the Virtues of Variability, 36 U.C. Davis L.

Rev. 85, 148-49 (2002) (quoting Hon. John Wilder May,

Some Rules of Evidence: Reasonable Doubt in Civil and

Criminal Cases, 10 Am. L. Rev. 642, 651-52 (1876))

(hereinafter Lillquist, Recasting Reasonable Doubt). The

point is that while some modern scholars assert that

there is reason for extra protection in capital cases — in

the form of a heightened standard of proof, see supra at 5

— the historical record reveals that the reasonable-doubt

standard is the extra protection for capital cases.

12

III. There Is No Basis in Logic for Constitutionaliz-

ing Residual Doubt.

Guzek’s argument here has a palpable inconsistency

and illogic about it. The constitutional rule that Guzek

advocates envisions a capital defendant asking a sentenc-

ing-phase jury to conclude that he may well not be guilty

of the very crime for which the guilt-phase jury (often-

times, of course, the very same jury) has already con-

victed him. In other words, the guilt-phase jury says

“Guilty”; the sentencing-phase jury says, “Well, okay,

maybe not.” That is not a state of affairs worth encourag-

ing, let alone constitutionalizing.

Guzek, of course, will presumably argue that there is

no actual, logical inconsistency in his argument. A

“residual doubt,” he will say, is simply a doubt that exists

between certainty “beyond a reasonable doubt” and

absolute certainty. See Br. for Petitioner at 14, Franklin

v. Lynaugh, 487 U.S. 164 (1988) (No. 87-5546) (urging

residual-doubt argument). And because to vote for

conviction a juror need have only the former, the argu-

ment goes, it is at least theoretically possible that even a

convicting juror could nonetheless harbor some residual

doubt. There are two problems with that line of argu-

ment.

The first and most obvious problem is that any doubt

that exists on the other side of the certainty “beyond a

reasonable doubt” required for conviction is, by definition,

unreasonable.2 A “residual” doubt, that is, may well be

“genuine,” Jennifer R. Treadway, Note, “Residual Doubt”

in Capital Sentencing: No Doubt It Is an Appropriate

Mitigating Factor, 43 Case W. Res. L. Rev. 215, 229

(1992), and “real,” Koosed, supra, at 56. Or, as the Fifth

Circuit has noted, it may be “whimsical.” Smith v. Balk-

3 A “residual” doubt that is reasonable is not really residual at all; it is

a stand-alone basis for acquittal, not just mercy.

13

com, 660 F.2d 573, 580 (5th Cir. 1981). What it is not is

reasonable. A “reasonable” doubt is, as its label suggests,

one “based upon ‘reason.” Jackson v. Virginia, 443 U.S.

307, 317 (1979). A “residual” doubt — which, again, arises

only beyond “reasonable doubt” — is, by contrast, “irra-

tional,” 19 Oxford English Dictionary 160 (2d ed. 1989)

(defining “unreasonable”), “absurd, inappropriate, [and]

incongruous,” Webster’s Third New International Diction-

ary 2507 (2002) (same). There are, amici recognize, a

whole host of very good reasons why a juror might vote

not to impose the death penalty. But an unreasonable

doubt about a defendant’s guilt — whether called residual,

lingering, or whimsical - is not one of them.

The second logical problem with Guzek’s argument

arises because, as the Florida Supreme Court has fa-

mously pointed out, “[a] convicted defendant cannot be ‘a

little bit guilty.” Buford v. State, 403 So.2d 943, 953 (Fla.

1981). In the eyes of the law, either he did it or he didn’t.

That, of course, is why, upon a conviction, the jury's

verdict pronounces the defendant “Guilty” of the charged

offense — not “Guilty Beyond a Reasonable Doubt,” but

simply “Guilty.” A “Guilty” verdict is not a philosophical

abstraction. To the contrary, it embodies a real-world

judgment — and signifies to the community that the

accused in fact was present at the scene, in fact intended

to commit the charged crime, in fact carried out the act

that constitutes that crime, and in fact caused the harm

charged.

Now, it is of course true that a jury can convict — and

pronounce a defendant “Guilty” in fact — even if it is not

absolutely, positively certain of his guilt. But that is not

because we as a society have concluded that it is okay to

condemn innocent people. Rather, it is because we as a

society have come to grips with the Enlightenment insight

that perfect knowledge is oftentimes unattainable. The

reasonable-doubt standard, in short, is the best we've got;

it is “designed to exclude as nearly as possible“ in a real

14

and imperfect world — “the likelihood of an erroneous

judgment.” Addington v. Texas, 441 U.S. 418, 423 (1979);

accord Winship, 397 U.S. at 364 (reasonable-doubt stan-

dard requires “subjective state of certitude,” “utmost

certainty”). See also Lillquist, Absolute Certainty, supra,

at 52-53 (“[O]ne of the primary assumptions of our pre-

sent criminal justice system [is] that we are only convict-

ing defendants in ordinary criminal cases upon the most

exacting of proof standards.”).

All of this is to say that, while the reasonable-doubt

standard exists to guide the jury’s determination of guilt,

once the jury’s determination is reduced to a verdict — and

later memorialized in a court judgment — the law treats

the defendant as “Guilty” in fact. The assertion that, in

the abstract, there may be some philosophical “space”

between certainty beyond a reasonable doubt and abso-

lute certainty does not change the fact that a residual-

doubt argument like Guzek’s literally invites the jury to

undo (or to ignore, or to compromise) its solemn verdict.

Again, a “Guilty” verdict necessarily means, in a murder

prosecution, that the defendant in fact (i) was there, (ii)

intended to kill, (iii) committed the act, and (iv) caused

the victim’s death. To argue that the Eighth Amendment

guarantees a defendant’s right to ask sentencing jurors to

conclude that, in retrospect, perhaps the defendant wasn't

there — or didn’t intend to kill, or didn’t cause the death

is to make a mockery of the guilt-phase verdict and to

“cast{] a shadow over the reliability and credibility of our

legal system.” State v. McGuire, 686 N.E.2d 1112, 1123

(Ohio 1997); see also Report on the Governor's Commission

on Capital Punishment 147-48 (submitted to [Illinois

Governor George H. Ryan April 15, 2002) (residual-doubt

argument would be “completely contradictory” to the facts

underlying guilt-phase verdict).

Guzek’s argument comes very close - if it does not go

all the way — to constitutionalizing a defendant's right to

invite the jury to lawlessness. It should be rejected.

15

IV. The Constitutionalization of Residual Doubt

Would Entail Significant Societal Costs.

There is one practical point worth making. The rule

that Guzek advocates — a uniform national requirement

that all States permit capital defendants to make resid-

ual-doubt arguments to sentencing juries — would not

come without costs. As an initial matter, Guzek’s position

poses a very real danger of juror confusion. What, ex-

actly, is a juror to do when faced with (i) the knowledge

that the defendant before him is indeed “Guilty” of the

crime charged and (ii) an argument that, on second

thought, perhaps the defendant isn’t guilty, after all?

Even setting aside the question whether the fine, philoso-

phical distinction between guilt “beyond a reasonable

doubt” and guilt in fact has any legitimate role to play

here (see supra at 12-14), the strong likelihood is that at

least some lay jurors just won't be able to grasp it. Many,

we fear, will be left simply scratching their heads.

State lawmakers and judges, of course, make every

effort to structure trial proceedings in such a way as to

minimize juror confusion. See, e.g. Ala. R. Evid. 403

(“Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of ... confusion of the issues ... or misleading the jury

). And, traditionally, trial judges have been given

discretion to control both their courtrooms and the evi-

dence in a manner best calculated to avoid that confusion.

See, e.g., United States v. Abel, 469 U.S. 45, 54-55 (1984).

Under Guzek’s wooden rule, at least with respect to the

confusion that would attend residual-doubt arguments,

that flexibility would be no longer.

Second, there are very real societal costs to requiring

a prosecutor who has already established a defendant’s

guilt during the (aptly named) guilt phase of a trial to re-

establish it for purposes of sentencing: Yes, the defendant

intended to kill; yes, the defendant committed the act;

16 17

yes, the defendant caused the victim’s death; and (par- CONCLUSION

ticularly relevant here) no, the defendant does not have

an alibi. A prosecutor should not be made to re-try his

guilt-phase case during the penalty phase just because a

convicted defendant continues to believe — notwithstand- Respectfully submitted,

ing his conviction — that he can poke holes in it. —

Obviously, this problem will be most acute in cases Attorney General

like this, where the guilt-phase and sentencing-phase

juries are different (say, because there is a re-sentencing). KEVIN C. NEWSOM

For the foregoing reasons, the Court should reverse

the decision of the Oregon Supreme Court.

Faced with a convicted defendant arguing to twelve new Solicitor General

jurors that, in fact - and whatever the jurors before them Counsel of Record

might have thought — he didn’t do it, a conscientious STATE OF ALABAMA

prosecutor would almost surely feel compelled to recon- 11 South Union Street

struct his entire guilt-phase case to ensure that a full and Montgomery, Alabama 36130-0152

tür factual picture was presented and that an appropri- July 22, 2005 (334) 242-7300

ate sentence was pronounced. The problem, of course, is

that doing so would entail, among other things, re-calling

numerous witnesses — some of whose memories may have

faded, others who may no longer be available to testify at

all. Even where the guilt-phase jury will also determine

the sentence, it is not hard to imagine that a prosecutor

would not feel comfortable simply standing pat in the face

of a defendant’s continuing efforts to un-ring the bell of

his conviction.

The point is that, in either case, having successfully

made its case for guilt, the State should not be required to

make it all over again at sentencing. A rule requiring as

much risks draining scarce resources, both prosecutorial

and judicial. Individual States, of course, are free to

make that choice (and incur the costs) as a matter of

policy; some do and will. But States should not have that

choice foisted upon them as a mater of federal constitu-

tional law.