# Petition for Writ of Certiorari — Dugger v. Thompson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1229%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 960 ## Text Q7 ee 11 hy 4 (\) ___ Suprema Court, 7 FILED JAN Av }9Q8 JOSEPH F. SPANIOL, UR. NO. CLERK SUPREME COURT OF THE UNITED STATES October Term, 1987 RICHARD L. DUGGER, Secretary, Florida Department of Corrections, and ROBERT A. BUTTERWORTH, Attorney General, State of Florida, Petitioners, vs. WILLIAM LEE THOMPSON, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT ROBERT A. BUTTERWORTH ATTORNEY GENERAL CAROLYN M. SNURKOWSKI ASST. ATTORNEY GENERAL The Capitol Tallahassee, Florida 32399-1050 (904) 488-1778 COUNSEL FOR PETITIONERS QUESTIONS PRESENTED 1. Whether the Florida Supreme Court has miscontrued the decision in Hitchcock v. Dugger, 95 L.Ed.2d 347 (1987), in failing to acknowledge and consider the applicability of Chapman v. California, 386 U.S. 18 (1967), as specifically stated in Hitchcock, to similarly postured cases, and_ therefore summary reversal for consideration by the Florida Supreme Court should obtain? TABLE OF CONTENTS PAGES QUESTION PRESENTED... 2... cc cccccccccscccscces i ogi Ee kt re a a ie 2 Mii at ley lt re i i i a 3 CONSTITUTIONAL PROVISIONS INVOLVED.......... 3 STATEMENT OF THE CASE... ...ccccccccccnececes 4 REASONS FOR GRANTING THE WRIT.............. 12 I. The Florida Supreme Court has misconstrued the decision in Hitchcock v. Dugger, 95 L.Ed.2d 347 ( n failing to acknowledge and consider the applicability of Chapman v. California, 386 U.S. 18 (1967), as specifically stated in Hitchcock to similarly postured cases, and therefore summary reversal for consideration by the Florida Supreme Court should obtain. DEEN: +o 5 cb eS CUS@N RS Cree cee ec ager eeeees 20 APPENDIX Order and judgment of the Circuit Ses te ree eee ee ee eee eee eee A-1 Sentence of Circuit Court................ A-36 Opinion of Florida Supreme Court Decided September 9, 1987............. A-41 nite Order of Florida Supreme Court Denying Motion for Rehearing Opinion of the Eleventh Circuit Court of Appeals -iii- A-53 A-55 TABLE OF AUTHORITIES CASES PAGES a v. California, OE 12,14 Clark v. Dugger, F.2d (Decided December 15, EE ee 15 Eddings v. Oklahoma, Es 15 Francois v. Wainwright, 763 F.2d 1188 (llth Cir. 1985).......... 18 Hitchcock v. Dugger, 95 L.Ed.2d 347 (1987)....... 11,12,14,16,19 Lockett v. Ohio, NOE , De bdaue Penry v. Lynaugh, Sees Cem ClO. BOBT).ccccccccess 15 Pope v. Illinois, es = 8. Bé.. 1) rrr 14 Rose v. Clark, er re MED. occ cosscsecsesecesd 14 Sandstrom v. Montana, RE, ee 14 Skipper v. South Carolina, 476 U.S. , 90 L.Ed.2d 1 (1986)...... 15 -iv- TABLE OF AUTHORITIES, CONTINUED Thompson v. State, _ ee gS ee ie Pee EERE REE EEE 5 Thompson v. State, ee ome Bee GPEO. 1980). wwe cccccccces 3,6 Thompson v. Wainwright, 747 F.2d 1447 (llth Cir. 1986)....2, 11-12 16-18 Thompson v. Dugger, So.2d (Fla. 1987), ER EEL 2,6-10 OTHER AUTHORITIES Amendment XIV, United States PL LSI EI 3-4 Amendment VII, United States mee kee wee. ff te ee ees eeseee é 4 Amendment X, United States ee el ts cece ees e6eees 4 i a ep eka beeeenene bes 3 ee ee eee a eae eben eh aee en 13 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1987 RICHARD L. DUGGER, Secretary, Florida Department of Corrections, and ROBERT A. BUTTERWORTH, Attorney General, State of Florida, Petitioners, vs. WILLIAM LEE THOMPSON, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT The petitioners, Richard L. Dugger and Robert A. Butterworth, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the Florida Supreme Court entered in Thompson v. Dugger, September 9, 1987, rehearing denied December 7, 1987, and a summary’ reversal obtain instructing the Florida Supreme Court to ~ review the instant case in light of this court's recognition of the harmless error doctrine as enunciated in Hitchcock v. Dugger, 107 S.Ct. 1821 (1987). OPINIONS BELOW The opinion of the Florida Supreme Court is reported at So. 2d (Fla. 1987), 12 F.L.W. 469, decided September 9, 1987, and is reprinted in the appendix hereto, pages A-41-52. Rehearing was denied by order dated December 7, 1987, and is not yet reported. It is reprinted in the appendix hereto, pages A-53-54. The decision of the Court of Appeals, Eleventh Circuit, in Thompson v. Wainwright, is reported at 787 F.2d 1447 (llth Cir. 1986), and is reprinted in the appendix hereto, pages A-55-124. ae The decision of the Florida Supreme Court on direct appeal, upholding the judg- ment and sentence, is reported in Thompson v. State, 389 So.2d 197 (Fla. 1980). JURISDICTION The decision of the Florida . Supreme Court was entered on September 9, 1987. Rehearing was denied December 6, 1987. This court's jurisdiction is invoked pursuant to 28 U.S.C. §1254 (1). CONSTITUTIONAL PROVISIONS INVOLVED Amendment XIV of the Constitution of the United States provides, inter alia, that: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein si. they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor. shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Amendment VIII provides that: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment X provides that: The powers not delegated to the United States by the Consti- tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. STATEMENT OF THE CASE William Lee Thompson pled guilty in June, 1976, of the first degree murder of Sally Ivester. The trial court : ene the death sentence for said crime on June LS, i996 On direct appeal, the Florida Supreme Court reversed that judgment and ll sentence, and remanded the cause’ with instructions to grant Thompson's’ motion for withdrawal of the guilty plea. Thompson v. State, 351 So.2d 701 (Fla. 1977). On September 18, 1977, William Lee Thompson entered his second guilty plea to the first degree murder of Sally Ivester. The trial court accepted the plea and convened an advisory jury for the purpose of determining the appropriate sentence to be _ imposed. Following the penalty phase _ procedures, the jury recommended the imposition of the death sentence. On September 20, 1977, the trial court sentenced Thompson to death for the murder of Sally Ivester, and imposed two life sentences to run_ concurrently for the guilty pleas of kidnapping and involuntary sexual battery of Miss Sally Ivester. The Florida Supreme Court affirmed -5- the plea and imposition of death penalty in Thompson v. State, 389 So.2d 197 (Fla. 1980)1 The path of litigation taken in this case was summarized in detail in Thompson v. Dugger, So.2d | , oles 1987), 12 F.L.W. 469, appendix page A-41. Therein, the Florida Supreme Court provided: William Lee Thompson’ appeals the denial of his Florida Rules of Criminal Procedure 3.850 motion to vacate judgment and sentence of death. He also petitions this Court for a writ of habeas corpus and a stay of execution from his second death warrant. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We conclude that the recent United States Supreme Court decision in Hitch- cock v. Dugger, i, ee Seyi - 3p 1821 (1587) requires this 1 The particular facts of the crime were originally reported in great detail in Thompson v. State, 389 So.2d 197 (Fla. 1980). They were repeated most recently in Thompson v. Wainwright, 7/787 F.2d 1447 (llth Cir. 1986), found in appendix pages A-55-124. ee Court to reverse the denial of his 3.850 motion and remand this cause for new sentencing proceedings. In light of our ruling on Thompson's 3.850 motion, the petition for habeas corpus is moot. We continue the stay of execution previously entered. This is Thompson's fourth appear- ance before us. k*** We address Thompson's’ claim in the present rule 3.850 post- conviction proceeding that involves the failure of _ the sentencing judge to allow presen- tation and jury consideration of nonstatutory mitigating circumstances in the sentencing phase. It directly concerns the principles of law set forth by the United States Supreme Court in its recent decision in Hitchcock v. Dugger. The Supreme Court had granted certio- rari to determine whether Hitch- cock was correct in contending that his sentence of death under a Florida statute was inconsistent with the requirement that any relevant mitigating evidence may be considered. The United States Supreme Court's unanimous opinion noted that “other Florida judges conducting sentencing proceedings during roughly the same period believed -]- that Florida law precluded consideration of nonstatutory mitigating circumstances." Id. at 1823. As in the instant case, the trial judge in Hitch- cock instructed the jury on the statutory mitigating circum- stances, without mentioning nonstatutory evidence of mitiga- tion that had been introduced. The Supreme Court concluded “that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstat- utory mitigating circumstances, and that the proceedings there- fore did not comport with the requirements of Skipper v. South Carolina, Eddings v. Oklahoma, and Lockett v. Ohio.” Id. at 1824 (citations omitted). e Court concluded that, in light of the fact that no showing of harmless error was made, the exclusion of the nonstatutory mitigating evidence rendered the death sentence invalid. We note that Hitchcock did present some nonstatutory miti- gating evidence to the jury and defense counsel commented on it in closing argument. kK*kEX* Thompson's sentencing occurred in September of 1978. The United States Supreme Court, in June of 1978, had released Lockett iv. Ohio, S36 B.S. | 586 (1978), which held unconsti- tutional Ohio's capital sentenc- ing statute limiting mitigating circumstnaces to those enumerated in the statute itself. In December of that year, three months after Thompson's sentenc- sae: this Court directly addressed the issue in Songer Vv. State, 365 So. 2d : | A-102 of Thompson. The trial court denied these requests and the Florida Supreme Court affirmed. 389 So.2d at 199. In his habeas petition, Thompson contends that the denial of psychiatric assis- tance unconstitutionally restricted the presentation of mitigating circun- stances. Subsequent to the district court's ruling on the petition, the Supreme Court decided Ake v. Okla- homa, U.S. , 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), in which it esta- blished a limited right to court- appointed psychiatric assistance in presenting a defense. We now evaluate Thompson's claim in light of Ake. In Ake, the Supreme Court con- sidered an indigent defendant's need for psychiatric assistance both at trial and at the death penalty sentencing hear- A-103 ing. With respect to guilt or inno- cence, the Court held that when a defendant demon- strates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defen- dant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, prepara- tion, and presentation of the defense. Id., 105 S.Ct. at 1097. Thompson's claim on appeal, how- ever, is limited to the sentencing phase and the Court‘’s discussion in Ake of the need for psychiatric assistance in capi- tal sentencing proceedings was somewhat different. The Court focused on the fact that certain states place before the jury psychiatric evidence of a defendant's future dangerousness, and that the Court had approved such a A-104 practice. Id. at 1097 (quoting Barefoot v. Estelle, 463 U.S. 880, 896-905, 103 S.Ct. 3383, 3395-3400, 77 L.Ed.2d 1090 (1983). The Court held: In such a circumstance, where the consequence of error is so great, the relevance of respon- sive psychiatric testimony so evident, and the burden on the State so slim, due process re- quires access to a psychiatric examination on relevant issues, to the testimony of the psychia- trist, and to assistance in pre- paration at the sentencing hearing. Id., 105 S.Ct. at 1097. The motion filed with the trial court stated that counsel believed Thompson suffered from a mental defect “which would render him incapable of assisting in his defense, and may have precluded the Defendant from knowing right from wrong at the time of the alleged criminal acts.” The trial court heard the motion, and again no A-105 mention was made of mitigating circum- stances. Because Thompson did not request psychiatric assistance to aid in presenting mitiating circumstances, Ake does not apply. Bowden v. Kemp, 767 F.2d 761, 764; Bowden Vv. Francis, U.S. _, 105 S.Ct. 1834, 1834-35, 85 L.E4.2a@ 135 (1985) (O'Connor, J., dissenting from remand to court of appeals in light of Ake) ./ We hold therefore that Ake did not require appointment of a psychia- trist at the sentencing phase. Thompson did argue in his motion for a new trial and his brief on direct appeal to the Florida Supreme Court that the denial of psychiatric assistance limited the development of mitigating circumstances. Ake, however, requires appointment of A-106 showing of need is made _ 0pbefore trial. 105 s.ct. at 1097.8 V. COERCION OF THOMPSON'S PLEA Finally Thompson contends that his decision to plead guilty, and to testify on behalf of Surace was not voluntary, but was coerced by threats from Surace. Thompson presented this Claim to the Florida courts in a motion for collateral relief. The state trial court found Thompson's affidavit not credible, and refused to hold a hearing. The Florida Supreme Court affirmed. 410 So.2d 500 (1982). At the district court hearing, Thompson testified that he was coerced into pleading guilty and testifying for Surace. He explained that while he and Surace were being held together in 1978, Surace told Thompson to take A-107 credit for the killing or Surace would have him killed, and Thompson testified that he believed Surace could do this based on Surace's membership in motorcycle gangs and Surace's comrades in prison. Thompson introduced no evidence to corroborate this testimony, other than a stipula- tion by the state that at the time of Thompson's second plea, Thompson and Surace were transported to the county courthouse together and held in the same cell while in the courthouse, and testimony of Thompson's trial lawyers that Surace used Thompson as his "tool" and before the second plea proceeding Surace's counsel was attempting to convince Thompson to commit perjury. Surace testified in the district court and denied Thomp- A-108 son‘s allegations. After hearing the testimony, the district court found that Thompson had not met his burden of proof, in effect finding that Thompson's testimony was not credible. [13] Although Thompson chal- lenges the voluntariness of his plea as a ground on appeal, he provides no legal arguments in his brief. As stated above, based upon Thompson's affidavit attached to his pleadings in the collateral proceeding, the state courts found his claim incredible and held no hearing. The district court received evidence on the claim at the evidentiary hearing, but in its order denying relief ruled that Thompson had not met his burden under section 2254 of proving that the conclusion of the state court on collateral review was A-109 erroneous.” The effect of the section 2254 presumption was that Thompson was required to present convincing evi- dence that his plea was not voluntary; normally, a habeas petitioner need only demonstrate by a preponderance of the evidence that he is entitled to relief. 28 U.S.C. $2254(c); Thomas v. Zant, 697 F.2d 977, 986 (llth Cir. 1983). The district court's -under- standing of section 2254 was mis- taken. Section 2254(d) does provide that a federal court considering a habeas petition must afford a pre- sumption of correctness to state court factual findings, but only if the findings were made "after a hearing on the merits of a factual issue," and that hearing must meet the require- ments set forth in section 2254(d)(1)- A-110 (8). Here the state court refused to hold such a hearing, and thus the findings of the state courts in the collateral proceeding are not entitled to a presumption of correctness. [14] Nevertheless, we do not believe that a remand is necessary. Although the state courts did not hold a hearing on collateral review, the state trial court held an adequate hearing on Thompson's plea at the time it was entered. The trancript of that proceeding is part of the record. The trial court placed Thompson under oath and specifically inquired: THE COURT: Has any persons [sic] used any threat, force, pressure, intimidation, or pro- mised anything to you for the purpose of getting you to plead guilty to these charges? THE DEFENDANT: No, Sir. A-111 THE COURT: Are you doing it voluntarily? THE DEFENDANT: Voluntarily, sir. i The state trial court then announced that it found that Thompson's "decision to plead guilty has been made freely, voluntarily, and intelligently.” In Blackledge v. Allison, 431 U.S. 63, 97 @.€t. 2623, S32 t.08.268 i136 (1977), the Supreme Court stated that "the representations of the defendant [at a plea hearing] as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings." 97 8.Ct. at 1629. The Court further ruled that the petitioner's “declara- tions in open court carry a strong pre- sumption of verity." Id. In Moya v. Estelle, 696 F.2d 329 (5th Cir.1983), A-112 the habeas petitioner contended that his Own attorney had intimidated him into Pleading guilty. The new Fifth Circuit held that in light of the petitioner's sworn statement at the plea proceeding that he had not been threatened and that he was satisfied with counsel, no evidentiary hearing was necessary on his claim in a federal habeas proceeding. 696 F.2d at 332-33. See also, Rogers v. Maggion, 714 F.2d 35, 38 n. 5 (5th Cir.1983). Here, Thompson testified under oath that his plea was not coerced, and the state trial court so concluded. The district court in effect gave these findings a presumnption of correctness. We see little difference between the presumption of correctness under section 2254 and the "strong A-113 presumption of verity” identified by the Supreme Court in Blackledge. Accordingly, the district court was correct in requiring Thompson to present convincing evidence that his plea was not voluntary and the district court's conclusion that Thompson failed to meet this burden is not clearly erroneous. CONCLUSION For the foregoing reasons, the order of the district court denying Thompson's petition for a writ of habeas corpus is AFFIRMED. Bm 2 5 A-114 1 Thompson complains of other as- pects of Solomon's representation at the sentencing hearing, including his fail- ure to object to admission of Surace's confession and his failure to object to comments the prosecutor made during closing which implied Thompson had the burden of proof of mitigating circun- stances. We do not believe that any of the alleged errors of counsel played a role in the jury's consideration of aggravating and mitigating circunm- stances. Accordingly, we need not furthgr consider these alleged errors. Although Solomon was ineffective for not contacting psychiatrists who had already examined Thompson, in the course of our discussion of Thompson's Ake v. Oklahoma claim, see note 8, infra, we consider and reject the possibility that Thompson was ineffective for not reques- ting court-appointed psychiatric assis- tance in developing mitigating evidence. 3 Ethical Consideration 7-12 pro- vides that: Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a law- yer must look to such representa- tive for those decisions which are normally the prerogative of the client to make. If a client under a disability has no legal repre- A-115 sentative, his lawyer may be com- pelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from per- forming certain acts, the lawyer should obtain from him all pos- sible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make deci- sions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the in- terests of his client. But ob- viously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent. 4 In the district court, Thompson also presented testimony of a psychiatrist that certain of the statutory mitigating circum- stances were present. We have determined, however, that Solomon was not ineffective in failing to obtain psychiatric evidence. Accordingly, we do not consider the psychiatric testimony in determining whether Thompson has A-116 met the prejudice prong of Strick- land v. Washington. 5 Your Honor, members of the jury: what I said to you yesterday was right. I asked you a key ques- tion, didn't I? Can you leave your minds open even if you hear horrendous evidence? Can you keep your minds open and not put in there the old Biblical term, "An eye for an eye and a tooth for a tooth," before you hear it all. You know something here -- do you know that the Court-appointed law- yer, me, is the only person in this room with William Thompson? There is no mother. There is no father. There are no cousins or aunts or uncles or pastors. This man is an absolute total loser, and we might shrug our shoulders and say, "Well, after all, look what he did to this poor girl. Let's do it to hin." Is there one shred -- is there some evidence to back up the law the Judge is going to read to you? Is there some evidence that you could consider that might say, "Let us give him 25 years in prison." He'll come out 49 years of age, if he comes out at that time. If some future parole commission reads all of the evidence that you heard, seeing everything in this A-117 case and lets him out -- I doubt ae. When he made the decision to ask for mercy by pleading guilty -- MR. MCHALE: I must object. That is not part of the evidence and it is not part of the law as to sen- tencing. THE COURT: It is argument. Over- ruled. MR. SOLOMON: Thank you. The facts of life are that you ask a jury, when you plead guilty, to please consider mercy. Obviously, things pop into your mind. We're not children here. Mercy. How do you show this girl mercy? There was no mercy shown this girl. Again, I come back to that question I asked you: can you take an eye for an eye and a tooth for a tooth and set it aside and accept what you hear. Now, pecuniary gain? Well, maybe not so. What we're talking about there in that statute is robbery, the 7-11 killings -- they will go in, take twelve dollars and shoot him dead. Pecuniary gain? That is not what that statute read for, but it was a heinous crime. There is no question about it, not at all. verre A-118 So, the question is, then, what thread is there upon which he hangs? What did he do and what occurrences happened _ to, say, well, let's put him in prison for 25 years and hopefully, some pa- role commission, after that, when they read through all this -- they will not -- don't underestimate the power of a Rocco Surace. He is it. He did it. He did it with him. He followed him. Rocco Su- race terrorized not just the poor girl that died, but terrorized two other people. He terrorized them. Yes, he did. He was the leader; I bet he was. Rocco Surace says, "Take this chain. She's your old lady. Do it to her,” and he picked up on the theme and he started in. God forbid, it would have been maybe not the best thing for him to say, “I'll not pick up that chain, and I'm not going to go get a board to do that," or "I'm not going to try to emulate you, even if you take it out on my hide, Mr. Rocco Su- race," and he would have -- to think that this next jury that has got to sit in here and try Rocco Surace -- THE COURT: No comment. MR. SOLOMON: All right, sir. Did this man do something upon which you can say, maybe, we'll A-119 consider something in his be- half? Yes. The evidence from the lady was that there was one thing that Rocco Surace didn't tell him to do, that he did on his own, and that was the peroxide, and that was the wiping it down. Turned mind, perverted mind that it might be over here, he got that peroxide to wipe her down and care for the wounds. There was testimony that she went out and got some sugar water and brought it back. That was his, not Rocco Surace's, instruction. That isn't much of a thread to hang things on, is it, that after this horrendous beating you admin- ister -- after copying and emula- ting the great Rocco Surace, that you went out and you got peroxide and you got some water and sugar because she was a diabetic, with- out his direction, on your own, without the direction of Rocco Surace. MR. MCHALE: I object. There is no such testimony in the record. MR. SOLOMON: Yes, Judge. He sent her out there -- THE COURT: It is in the testi- mony. MR. SOLOMON: I am going to review with you, just for a moment, cer- tain worse, damaging, aggravating A-120 circumstances shall be limited to the following and that's what you heard from Mr. McHale. It says, “Limited to the following." Although it says, “mitigating circumstances shall be the follow- ing," it doesn't say, “Limited to." So, you can consider other elements. MR. MCHALE: Objection. THE COURT: Sustained. MR. SOLOMON: You will then, have to consider these elements and weigh them. The defendant has no significant history of prior cri- minal actitivy. Now, you can let your minds figure that one out. Never before has this man done anything violent. MR. MCHALE: Objection. This is not evidence. THE COURT: Sustained. MR. SOLOMON: The State, Your Honor, has admitted that he has not been convicted of anything. THE COURT: No that is not their testimony, sir. That is not his statement. MR. SOLOMON: The defendant acted under extreme duress or under the substantial domination of another A-121 person - Rocco Surace. The capacity of the defendant to appreciate the criminality of this conduct to the requirements of the law are substantially impaired. I couldn't say that. There is no proof of that, and I say to you that any person that would do what he did has to be not in this world. Prior to the State, three psychia- trists have ruled that he was sane. MR. MCHALE: Objection, Your Honor. THE COURT: Sustained. Mr. Solomon you are confined sir, to what has been brought out in the evidence. MR. SOLOMON: The question arises, then, what thread can you hang it on? What can you give him? Can you give him the fact that he pled guilty to you and seeks mercy? You can give him the fact that after this two-hour stint, or whatever period of time passed by, it must have dawned on his herd, the enormity of what he did, and he started to take care of her with the peroxide and get some water and sugar -into her. A-122 MR. MCHALE: I object. There is no evidence. THE COURT: Yes, there is. The testimony is that there was sugar set out for her. MR. MCHALE: Not that this defendant did anything. THE COURT: Well, it was at their directions. Overruled. The question that arises, shall we take the man's life,or shall we put him in prison until he's 49 years old? I think if the State desired to put everybody to death, they would say § s0. 25-year minimum-minimum. However you are right now, whatever age you are add 25 years to it. He will go nowhere. He will be punished. Now the question is, what shall you do? Is there a thread there upon which to hang any hope for this man, or at least let him live someplace in prison, and I say there is. The fact that he came in here and asked for mercy -- the fact that he came in here and that he went out and he did these things to her to relieve her and to wipe her down and to get her sugar and water, that might be very, very thin to you, but that is a spark, and if there is a spark, there is a place _ for hope. It may be, at some future : A-123 time during this 25-year period of time, if you put him in prison, that the whole system, our state and the rest of these states, will wise up and then say, "Now, we have this man in our custody. Let us see what makes him tick." Richard Speck -- Richard Speck and six nurses, was it? Life imprisonment. MR. MCHALE: Judge, I object. THE COURT: Sustained. MR. SOLOMON: We feel that it is a greater punishment, much greater punishment to see that he spends his life in prison, and there is no hope of ever getting out, at least for 25 years, and we leave it in your hands. Thank you. 6 Thompson's sentencing hearing occured on September 19-20, 1978. The Supreme Court decided Lockett on July 3, 1978. The Florida Supreme Court issued its opinion on rehearing in Songer on December 21, 1978. 7 We do not consider whether Thompson would have a valid Ake claim had he made a proper request. 8 Solomon's failure to request psychiatric assistance with respect to mitigating circumstances was not inef- fective assistance of counsel. The Supreme Court's decision in Ake was a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1229%3A1. Public record. Not legal advice.