# Petition for Writ of Certiorari — Dugger v. Mann

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1071

## Text

Supreme Caurt, U8,
@7-2073| ‘TLeD

JUN 18 1966
Case No.
JOSEPH F. SPANIOL, JR,
In The en

SUPREME COURT OF THE UNITED STATES
October Term, 1987

RICHARD L. DUGGER, Secretary, Florida
Department of Offender Rehabilitation

Petitioner,
Vv.
LARRY EUGENE MANN,

Respondent.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

AND APPENDIX

ROBERT A. BUTTERWORTH
ATTORNEY GENERAL

GARY O. WELCH
Assistant Attorney General
1313 Tampa Street, Suite 804
Park Trammell Building
Tampa, Florida 33602
(813) 272-2670

COUNSEL FOR PETITIONER

QUESTION PRESENTED

I.

MAY A FEDERAL COURT CONSIDER A PROCEDURALLY
DEFAULTED ISSUE THAT HAD NOT BEEN RAISED ON
DIRECT APPEAL ON THE GROUNDS THAT AMBIGUOUS
LANGUAGE BY THE STATE APPELLATE COURT IN
DENYING POST CONVICTION PROCEEDINGS CONSTITU-
TED A RULING ON THE MERITS WHERE THE POST
CONVICTION PROCEEDINGS WERE NOT THE PROPER
FORUM TO RAISE THE ISSUE AND THE MERITS WERE
NOT DISCUSSED BY THE STATE APPELLATE COURT?

II.

WHETHER INFORMING A FLORIDA CAPITAL JURY,
WHICH PROVIDES AN ADVISORY SENTENCE TO THE
SENTENCING JUDGE, THAT THEIR ROLE IS ONLY AD-
VISORY AND THAT THE ULTIMATE SENTENCE IS NOT
ON THEIR SHOULDERS RENDERS THE TRIAL COURT'S
SENTENCE VIOLATIVE OF THE EIGHTH AMENDMENT
VIS A VIS CALDWELL V. MISSISSIPPI, 472 U.S.
320 (1985)?

-i-

TABLE OF CONTENTS

PAGE NO.

QUESTION PRESENTED... .ccccccccccccccsccceed
TABLE OF CONTENTS... .ccccccccccccccsccccerth
TABLE OF CITATIONS... .ccccccccccccccccvehil
OPINIONS BELOW....cccccccccccceevesseeeeilV
JURISDICTIONAL STATEMENT... ceeecsesecceeY

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED... .ccccccccccccceceeVi

STATEMENT OF THE CASE @eeeesoeoeeeeeeeeeeeeee 1
REASONS FOR GRANTING THE WRIT.....+++e+++6
py ARS Re Pa Re Or rd ce

I

THE EN BANC OPINION OF THE
ELEVENTH CIRCUIT COURT OF
APPEAL Is IN EXPRESS AND
IRRECONCILABLE CONFLICT WITH
THE FLORIDA SUPREME COURT AS TO
THE PROPER APPLICATION OF THIS
COURT'S DECISION IN CALDWELL V.
MISSISSIPPI, 472 U.S.
(1985), TO THE FLORIDA CAPITAL
SENTENCING SCHEME.

ait Ae

te vases seers wee

II.

THE GROUNDS UPON WHICH THE ELE-
VENTH CIRCUIT COURT OF APPEAL
EXCUSED THE PROCEDURAL DEFAULT
OF THE EIGHTH AMENDMENT CLAIM
RESULTS IN A COMPLETE EMASCULA-
TION OF WAINWRIGHT V. SYKES,
433 u.s. 72 (1977).

IIl.

THERE IS EXPRESSED CONFLICT BE-
TWEEN THE CIRCUIT COURTS OF
APPEAL AS TO WHAT CONSTITUTES A
DISCUSSION OF THE MERITS OF A
CONSTITUTIONAL CLAIM IN A STATE
APPELLATE OPINION SO AS _ TO
ALLOW FEDERAL COURTS TO ENTER-
TAIN A PROCEDURALLY DEFAULTED
ISSUE.

DS ceé6eseesescscscoccedsdsesestoisuued

CERTIFICATE OF gg PPT TTrTrrrrerr: ss

-iii-

TABLE OF CITATIONS

PAGE NO.

Aldridge v. State,
503 So.2d 1257 (Fla. 1987).......+8, 9, 10

Bates v. Blackburn,
805 F.2d 569 (5th Cir. 1986)....eeee02--18

Caldwell v. Mississippi,
472 U.S. 320 (1965S) wcccdccccecshs 2, 3, 6,
TTTITIC rr? LS PT 8, 9, 10, ll, 12, 13

Combs v. State,
13 F.L.W. 142 (Fla. Case No.
68,477 decided February 18,1988).........8

Copeland v. Wainwright,
505 So.2d 425 (Pla. BOOT Péesbtcceosbdeate 10

Dugger v. Adams,
108 U.S. 1106 CRSSS) ccccccecessoscccoecens

Exxon Corp. v. Eagerton,
462 U.S. 176 FESR cccccceccesseoctossesene

Ford v. State,
522 So.2d 345 (Fla. 1988)........8, 10, 13

Foster v. State,
518 So.2d 901 (Fla. RGSS cccccceecsceDe 10

Fuller v. Oregon,
417 U.S. 40 ETOP E) cdc cccdcccsdedodecoocech®

Grossman v. State,

13 F.L.W. 127 (Fla. Case No.
62,996 decided February 18, 1988)........8

-iv-

Harris v. Reed,
108 S.C. 1107 Cee oes ssoee 6d ee00eeee ean

Jackson v. State,
13 F.L.W. 146 (Fla. Case No.
68,097 decided February 18, 1988)........8

Mann v. Dugger,
(llth Cir. Case No. 86-3182,
decided April 21, 1988)....eeeeeeee3, Sy 9

Mann v. State,
482 So.2d 1360 (Fla. Beer secncedsvescesecss

Meadows v. Holland,
S31 F.26 493 (Sth Circ. 1987) .cccccccccecht

Oliver v. Wainwright,
795 F.2d 1524 (llth Cir. 1986) rrr rT.

Phillips v. Dugger,
515 So.2d 227 (Fla. 1987) ..ccccccccee9, 10

Phillips v. Lane,
787 F.2d 208 (7th Girt. BUGS) coscceseeestbae

Pope v. Wainwright,
496 So.2d 798 (Fla. BUEOP covccececeeseessese

Preston v. Maggio,
705 F.2d 1113 (5th Cir. BUGS) ch eeococoeeeae

Rosenfeld yv. Dunham,
820 F.2d 52 (2nd Cir. B9GTD ccccsaceessoent

Shepard v. Foltz,
771 F.2d 962 {oth Cire BOGS) ccvdecccsdtoseene

Smith v. State,
S25 GGcSe BOS Teahs ASST Cescceocsesssoertoae

Stepney v. Lopes,
760 F.2d 40 (2nd Cir. 1985)....cceeeeeeelT7

Street v. New York,
394 U.S. 576 CAUSES) ccccccccccosecesoane 16

Wainwright v. Sykes,
433 U.S. 72 CIDTT) cocccocceccoeceSs 12, 14

Wallace v. Duckworth, .
778 F.2d 1215 (7th Cir. 1985)....-ee++-18

Webb v. Webb,
451 U.S. 493 C2962) cccccccccccceccececoene

a ee -

OTHER AUTHORITIES CITED
28 U.S.C. SISZSSCA) coccccdsecocecccssooocee”’

-vi-

OPINIONS BELOW

The en banc opinion of the Court of
Appeal, Eleventh Circuit, in Mann v. Dugger,
Case No. 86-3182, was rendered on April 21,
1988, and is attached as an appendix to the
instant petition. At the time of the prepar-
ation of the instant petition, there has been
no official reporter citation assigned to the
en banc decision of the Court of Appeal. The
opinion of the Circuit Court of Appeal grant-
ing rehearing en banc and vacating the panel
opinion is reported as Mann v. Dugger, 828
FP.2d 1498 (llth Cir. 1987). The panel opin-
ion of the Court of Appeals, Eleventh Cir-
cuit, is reported as Mann v. Dugger, 817 F.2d

1471 (llth Cir. 1987). The opinion of the
Florida Supreme Court Court denying a peti-
tion for writ of habeas corpus and affirming
the denial of the motion for post conviction

relief is reported as Mann v. State, 482

So.2d 1360 (Fla. 1986). The direct appeal in

-vii-

state court which affirmed the judgment and
sentence is reported as Mann v. State, 453
So.2d 784 (Fla. 1984). A previous direct
appeal, which mandated another sentencing, is
reported as Mann v. State, 420 So.2d 578
(Fla. 1982).

JURISDICTIONAL STATEMENT
Jurisdicton to review the en banc
judgment of the Eleventh Circuit Court of
Appeal rendered on April 21, 1988, is invoked
pursuant to 28 U.S.C. $1254(1).

-viii-

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED

AMENDMENT VIII
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

FLA. STAT. §921.141 (1981)
921.141. Sentence of death or life im-
prisonment for capital felonies; further pro-
ceedings to determine sentence.

(1) Separate proceedings on issue of

penalty -- Upon conviction or adjudication of
guilty of a defendant of a capital felony,
the court shall conduct a separate sentencing
proceeding to determine whether the defendant
should be sentenced to death or life impri-
sonment as authorized by §775.082. The pro-
ceeding shall be conducted by the trial judge
before the trial jury as soon as practi-
cable. If, through impossibility or inabil-

ity, the trial jury is unable to reconvene

-ix-

for a hearing on the issue of penalty, having

determined the guilt of the accused, the
trial judge may summon a special juror or
jurors as provided in chapter 913 to deter-
mine the issue of the imposition of the pen-
alty. If the trial jury has been waived, or
if the defendant pleaded guilty, the senten-
cing proceeding shall be conducted before a
jury impaneled for that purpose, unless
waived by the defendant. In the proceeding,
evidence may be presented as to any matter
that the court deems relevant to the nature
of the crime and the character of the defen-
dant and shall include matters relating to
any of the aggravating or mitigating circum-
stances enumerated in subsections (5) and
(6). Any such evidence which the court deems
to have probative value may be received, re-
gardless of its admissibility under the ex-
Clusionary rules of evidence, provided the

defendant is accorded a fair opportunity to

’ Us
. That
recommendation, the attorney general asserts,
is always subject to rejection by the trial
judge, who must under Fla. Stat. §921.141(3)
independently weigh the aggravating and miti-
gating circumstances before entering a sen-
tence. Because the trial judge plays this

role in sentencing, the attorney general

argues, Caldwell error does not occur when
the jury is told that sentencing responsibil-
ity lies elsewhere.

At first blush, the attorney general's
argument has some appeal. It is true that
the trial court independently weighs the
aggravating and mitigating circumstances and
actually enters the sentence. It is also
true that the statute describes the senten-
cing jury's function as that of "“render[ing]
an advisory opinion to the court." The

legislature's use of the term “advisory,”

A-19

considered in a vacuum, could be viewed as
evincing a legislative intent that the sen-
tencing jury play a role which, in the final
analysis, is in fact largely meaningless. In
common parlance, we often associate the term
"advisory" with the term "nonbinding";
"advice," in ‘the minds of most people, is
something that a decisionmaker may follow or
reject as he or she sees fit. In analyzing
the role of the jury, however, we cannot
operate in the vacuum. Rather, we must look
to how the Supreme Court of Florida, the
final interpreter of the death penalty
statute, has characterized that role.
A.

A review of the case law shows that the
Supreme Court of Florida has interpreted sec-
tion 921.141 as evincing a legislative intent
that the sentencing jury play a significant
role in the Florida capital sentencing

scheme. See Messer v. State, 330 So.2d 137,

A-20

142 (Fla. 1976) ("{T]he legislative intent
that can be gleaned from Section 921.141 [in-
dicates that the legislature] sought to de-
vise a scheme of checks and balances in which
the input of the jury serves as an integral

part."); see also Riley v. Wainwright, 517

So.2d 656, 657 (Fla. 1987) ("This Court has
long held that a Florida capital sentencing
jury's recommendation is an integral part of

the death sentencing process."); Lamadline v.

State, 303 So.2d 17, 20 (Fla. 1974) (right to
sentencing jury is “an essential right of the
defendant under our death penalty legisla-
tion"). In the supreme court's view, the
legislature created a role in the capital
sentencing process for a jury because the
jury is "the one institution in the system of
Anglo-American jurisprudence most honored for
fair determinations of questions decided by

balancing opposing factors." Cooper v.

State, 336 So.2d 1133, 1140 (Fla. 1976),

A-21

cert. denied, 431 U.S. 925, 97 S.Ct. 2200

(1977); see also McCampbell v. State, 421

So.2d 1072, 1075 (Fla. 1982) (the jury's re-
commendation "“represent[s] the judgment of
the community as to whether the death sen-

tence is appropriate"); Chambers v. State,

339 So.2d 204, 209 (Fla. 1976) (England J.,
concurring) (the sentencing jury “has been
assigned by history and statute the responsi-
bility to discern truth and mete out jus-
tice").

To give effect to the legislature's in-
tent that the sentencing jury play a signifi-
cant role, the Supreme Court of Florida has
severly limited the trial judge's authority
to override a jury recommendation of life im-

prisonment. In Tedder v. State, 322 So.2d

908, 910 (Fla. 1975), the court held that a
trial judge can override a life recommenda-
tion only when "the facts [are] so clear and

convincing that virtually no reasonable

A-22

ot Se CO i i Oh

SOKO a a ree

person could differ." That the court meant
what it said in Tedder is amply demonstrated
by the dozens of cases in which it has
applied the Tedder standard to reverse a
trial judge's attempt to override a jury re-

commendation of life. See, e.g., Wasko Vv.

State, 505 So.2d 1314, 1318 (Fla. 1987);
Brookings v. State, 495 So.2d 135, 142 - 43

(Fla. 1986); McCampbell v. State, 421 So.2d

1072, 1075 - 76 (Fla. 1982); Goodwin v.

State, 405 So.2d 170, 172 (Fla. 1981); Odom
v. State, 403 So.2d 936, 942 - 43 (Fla.

1981), cert. denied, 456 U.S. 925, 102 S.Ct.

1970 (1982); Neary v. State, 384 So.2d 881,

885 - 88 (Fla. 1980); Malloy v. State, 382

So.2d 1190, 1193 (Fla. 1979); Shue v. State,

366 So.2d 387, 390 - 91 (Fla. 1978); McCas-
kill v. State, 344 So.2d 1276, 1280 (Fla.

1977); Thompson v. State, 328 So.2d l, 5

(Fla. 1976).

A-23

The attorney general argues that al-
though the trial court may be required under
Tedder to give deference to a jury recommen-
dation of life, it is in no way similarly
bound to give deference to a jury recommenda~
tion of death. Since a Florida sentencing
jury can therefore never play a substantive
role in imposing a death sentence, the attor-

ney general contends, Caldwell can never be

implicated in a Florida case.

One problem with this argument is that
its central premise -- that the sentencing
jury plays no substantive role in imposing a
death sentence -- is contradicted by numerous
pronouncements by the Supreme Court of
Florida. The issue of what deference is due
a jury recommendation of death would arise
most directly when the jury recommends death
and the trial judge rejects the recommenda-
tion and imposes life imprisonment. Such

cases never appear before the supreme court,

A-24

however, because the state cannot appeal a

sentence of life imprisonment. See State v.

Dixon, 283 So.2d 1, 8 (Fla. 1973), cert. de-

nied, 416 U.S. 943, 94 S.Ct. 1950 (1974).
Nonetheless, the issue has arisen in cases
where the jury recommends death, the trial
court imposes death, and the defendant con-
tends on direct appeal that the trial court
improperly weighed the aggravating and miti-
gating circumstances. In one such recent

case, Smith v. State, 515 So.2d 182 (Fla.

1987), the supreme court held that
"[a]Jlthough we find that one of the five
aggravating circumstances relied on by the

trial court was invalid, we approve the death

sentence on the basis that a jury recommenda-

tion of death is entitled to great weight and

there were no mitigating circumstances to
counterbalance the four valid aggravating
circumstances.” Id. at 185 (emphasis add-

ed). In LeDuc v. State, 365 So.2d 149 (Fla.

A-25

1978), cert. denied, 444 U.S. 885, 100 S.Ct.
175 (1979), the supreme court stated that
"(t]he primary standard for our review of
death sentences is that the recommended sen-
tence of a jury should not be disturbed if
all reasonable data was considered, unless
there appear strong reasons to believe that
reasonable persons could not agree with the
recommendation." Id. at 151 (citing Tedder)
(emphasis added). See also Middleton vy.
State, 426 So.2d 548, 552 - 53 (approving
trial court's imposition of death sentence
and reiterating in conclusion that jury had
recommended death), cert. denied, 458 U.S.
1122, 102 S.Ct. 3511 (1982); Francois v.
State, 407 So.2d 885, 891 (Fla. 1982) (same),
cert. denied, 463 U.S. 1230, 103 S.Ct. 3573
(Fla. 1983); Enmund v. State, 399 So.2d 1362,

1373 (Fla. 1981) (same), rev'd on other

grounds, 458 U.S. 782, 102 S.Ct. 3368 (1982);
cf. Grossman v. State, 13 Fla. L. Weekly 127,

A-26

133 n.l (Fla. Feb. 18, 1988) ("We have...
held that a jury recommendation of death
should be given great weight."). On one
occasion, the supreme court went so far as to
suggest that the trial judge's role in sen-
tencing is merely to articulate findings in
support of the jury's sentencing decision.
See Provenzano v. State, 497 So.2d 1177, 1185
(Pla. 1986) ("[(T)he trial judge does not con-
sider the facts anew. In sentencing a defen-
dant, a judge lists reasons to support a
finding in regard to mitigating or aggrava-
ting factors."), cert. denied, U.S. __,
107 S.Ct. 1912 (1987).

The issue of what deference is due a
jury recommendation of death has also arisen
in cases where the jury recommends death, the
trial judge imposes death, and the defendant
Claims on direct appeal that the trial judge
gave undue deference to the jury's recommen-

dation. The Supreme Court of Florida has

A-27

consistently indicated in such cases that no
error occurs when the trial judge gives due
weight to the jury recommendation of death.

In Garcia v. State, 492 So.2d 360 (Fla.),

cert. denied, __—sv«iU«w SS. ~___—z107:«=S.CK. «= 80
(1986), for instance, the judge stated in his
instructions to the jury that their recommen-
dation “would not be overruled unless there
was no reasonable basis for it." Id. at
367. The jury returned a recommendation of
death and the trial court entered a sentence
of death. On direct appeal, the defendant
claims, citing the trial court's instructions
to the jury, that the judge had mistakenly
given weight to the jury's recommendation of
death. The supreme court disagreed and
affirmed the death sentence: "There is no
error; this is the law. It is appropriate to
stress to the jury the seriousness which it

should attach to its recommendation and, when

the recommendtion is received, to give it

A-28

weight." Id. (emphasis added). See also
Rogers v. State, 511 So.2d 526, 536 (Fla.
1987) (no merit to appellant's contention
that trial court gave undue weight to jury's
recommendation of death where record reflects
that “the court has weighed relevant factors
and reached its own independent judgment
about the reasonableness of the jury's recom-
mendation."), cert. denied, _—s«U.S. __s, ~-108
S.Ct. 733.6

The supreme court's understanding of the
jury's sentencing role is illustrated by the
way it treats sentencing error. In cases
where the trial court follows a jury recom-
mendation of death, the supreme court will
vacate the sentence and order resentencing
before a new jury’ if it concludes that the
proceedings before the original jury were
tainted by error. Thus, the supreme court
has vacated death -sentences where the jury

was presented with improper evidence, see

A-29

Dougan v. State, 470 So.2d 697, 701 (Fla.

1985), cert. denied, 475 U.S. 1098, 106 S.Ct.

1499 (1986), or was subject to improper argu-

ment by the prosecutor, see Teffeteller v.

State, 439 So.2d 840, 845 (Fla. 1983), cert.
denied, 465 U.S. 1074, 104 S.Ct. 1430
(1984). The supreme court has also vacated
death sentences where the trial court gave
the jury erroneous instructions on mitigating
circumstances or improperly limited the de-
fendant in his presentation of evidence of

mitigating circumstances. See Thompson v.

Dugger, 515 So.2d 173, 175 (Fla. 1987); Downs
v. Dugger, 514 So.2d 1069, 1072 (Fla. 1987);

Riley v. Wainwright, 517 So.2d 656, 659 - 60

(Fla. 1987); Valle v. State, 502 So.2d 1225,

1226 (Fla. 1987); Floyd v. State, 497 So.2d

1211, 1215 - 16 (Fla. 1986); Lucas v. State,

490 So.2d 943, 946 (Fla. 1986); Simmons v.

State, 419 So.2d 316, 320 (Fla. 1982); Miller

v. State, 332 So.2d 65, 68 (Fla. 1976). In

A-30

a
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:
5
:

ae es eee ee

a

these cases, the supreme court frequently
focuses on how the error may have affected

the jury's recommendation. See, e.g., Riley,

517 So.2d at 659 ("If the jury's recommenda-
tion, upon which the judge must rely, results
from an unconstitutional procedure, then the
entire sentencing process necessarily is
tainted by that procedure."); Valle, 502
So.2d at 1226 ("(UJnless it is clear beyond a
reasonable doubt that the erroneous exclusion
of evidence did not affect the jury's recom-
mendation of death, the defenant is entitled
to a new jury recommendation or resenten-
cing."). Dougan, 470 So.2d at 701 (death
sentence vacated and resentencing ordered
where supreme court could not "tell how the
improper evidence and argument may have

affected the jury"); Teffeteller, 439 So.2d

at 845 (death sentence vacated and resenten-
cing ordered where supreme court could not

"determine that the needless and inflammatory

A-31

comments by the prosecutor did not substan-
tially contribute to the jury's advisory re-
commendation of death"). Such a focus would
be illogical unless the supreme court began
with the premise that the jury's recommenda-
tion must be given significant weight by the
trial judge. Once that premise is establish-
ed, a focus on how the error may have affect-
ed the jury's recommendation makes sense: if
the jury's recommendation is tainted, then
the trial court's sentencing decision, which
took into account that recommendation, is
also tainted.

Finally, we note that the Supreme Court
of Florida has ordered resentencing in cases
where the trial court excused a prospective

juror in violation of Witherspoon v. Illi-

nois, 391 U.S. 510, 88 S.Ct. 1770 (1968).

See, e.g., Chandler v. State, 442 So.2d 171,

173 - 75 (Fla. 1983). Under Witherspoon and

its progeny, a state violates a capital

Rea Chih t De adtae hy ial ehat a

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defendant's right to trial by imparital jury
when it excuses for cause a prospective juror
who has voiced conscientious objections to
the death penalty, unless the juror's views
would “prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and his

oath.” Wainwright v. Witt, 469 U.S. 412,

433, 105 S.Ct. 844, 857 (1985). Witherspoon

assumes, of course, that the jury will play a
substantive role in the sentencing deci-

sion. By applying Witherspoon to vacate

death sentences, then, the Supreme Court of
Florida implicitly acknowledges that the jury
plays a substantive role under the Florida
capital sentencing scheme.

Thus, in various ways, the Florida case
law evinces an interpretation of the death
penalty statute that requires a trial judge
to give great weight to a jury's sentencing

recommendation. As our review of the case

A-33

law shows, that requirement applies as to
both recommendations of life imprisonment and
recommendations of death.

B.

In analyzing the role of the sentencing
jury, the Supreme Court of Florida has appar-
ently been influenced by a normative judgment
that a jury recommendation of death carries
great force in the mind of the trial judge.
This judgment is most clearly reflected in
cases where an error has occurred before the
jury, but the trial judge indicates that his
own sentencing decision is unaffected by the
error. As a general matter, reviewing courts
presume that trial judges exposed to error
are capable of putting aside the error in
reaching a given decision. The Supreme Court
of Florida, however, has on occasion declined
to apply this presumption in challenges to

death sentences. For example, in Messer v.

State, 330 So.2d 137 (1976), the trial court

A-34

erroneously prevented the defendant from
putting before the sentencing jury certain
psychiatric reports as mitigating evidence.
The jury recommended death and the trial
judge imposed the death penalty. The supreme
court vacated the sentence, even though the
sentencing judge had stated that he had
himself considered the reports before
entering sentence. The supreme court took a

similar approach in Riley v. Wainwright, 517

So.2d 656 (Fla. 1987). There, the defendant
presented at his sentencing hearing certain
nonstatutory mitigating evidence. The trial
court instructed the jury that it could con-
sider statutory mitigating evidence, but said
nothing about the jury's obligation under
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954

(1978), to consider nonstatutory mitigating
evidence. The jury recommended death and the
trial judge imposed the death penalty. In im-

posing the death sentence, the trial judge

A-35

expressly stated that he had considered all
evidence and testimony presented. ® On peti-
tion for writ of habeas corpus, the supreme
court ordered the defendant resentenced. The
court held that the jury had been precluded
from considering nonstatutory mitigating evi-
dence, and that the trial judge's considera-
tion of that evidence had been “insufficient
to cure the original infirm recommenda-
tion." Id. at 659 n. l.

In light of the disposition of these
cases, it would seem that the Supreme Court
of Florida has recognized that a jury recom-

mendation of death has a sui generis impact

on the trial judge, an impact so powerful as
to nullify the general presumption that a
trial judge is capable of putting aside
error. We do not find it surprising that the
supreme court would make this kind or norma-
tive judgment. A jury recommendation of

death is, after all, the final stage in an

A-36

elaborate process whereby the community
expresses its judgment regarding the appro-
priateness of a death sentence. The process
begins with the legislature, which broadly
defines the class of cases for which capital
punishment is appropriate. Then, in the par-
ticular case, the prosecutor, who is elector-
ally accountable to the community, makes the
decision whether to request the death pen-
alty. Finally, the jury, traditionally de-
picted as the conscience of the community,
makes a judgment about the appropriateness of
death in light of aggravating and mitigating
cricumstances. Thus, by the time the case
comes before the judge for the actual imposi-
tion 6f eeatence, it has already been filter-
ed through three levels of community senti-
ment, each level less porous than the pre-

ceding one.?

It would indeed be surprising
were the trial judge, who in Florida is also

an electorally accountable official, not

A-37

powerfully affected by the result of that
process.
C.

In light of the case law, we conclude
that the Florida jury plays an important role
in the Florida capital sentencing scheme.
The case law reflects an interpretation of
the death penalty statute that requires the
trial court to give significant weight to the
jury's recommendation, whether it be a recom-
mendation of life imprisonment or a recommen-
dation of death. The case law also reflects,
we think, an insightful normative judgment
that a jury recommendation of death has an
inherently powerful impact on the trial
judge.

Because the jury's recommendation is
significant in these ways, the concerns

voiced in Caldwell are triggered when a

Florida sentencing jury is misled into be-

lieving that its role is unimportant. 2°

A-38

Under such circumstances, a real danger
exists that a resulting death sentence will
be based at least in part on the determina-
tion of a decisionmaker that had been misled
as to the nature of its responsibility. Such
a sentence, because it results from a formula
involving a factor that is tainted by an im-
permissible bias in favor of death, necessar-
ily violates the eighth amendment requirement
of reliability in capital sentencing. See
Adams _v. Wainwright, 804 F.2d 1526, 1532

(llth Cir. 1986), modified, 816 F.2d 1493

(llth Cir. 1987), cert. granted, 56 U.S.L.W.

3608 (U.S. Mar. 7, 1988).
IIIf.

Having determined that the sentencing
jury plays a substantive role under the
Florida capital sentencing scheme, we turn to
the question whether the jury in this case
was misled as to its role so as to render

petitioner's sentence invalid under_ the

A-39

eighth amendment. We begin with a thorough

examination of the trial record.

A-40

A.

The first reference to the jury's role
was made as the jury was being selected, dur-
ing counsel's voir dire of the venire. The
prosecutor said the following:

The recommendation that
you make to Judge Federico
in [the sentencing] por-
tion of the trial is sim-
ply a recommendation, and
he is not bound by it. He
may impose whatever sen-
tence the law permits. He
will have been here and
will have listened to all
the testimony himself.

A few moments later, the prosecutor repeated
this point in stronger terms:

You understand you do not
impose the death penalty;
that is not on your
shoulders .. . . Again,
that decision rests up
here with the law, with
Judge Federico. You will
have the opportunity after
you have heard everything
there is to hear to make a
recommendation to him.
But it is not legally on
your shoulders, though.
It is not your ultimate
decision. You act in that
regard in an advisory
capacity only.

A-41

The prosecutor repeated the point again that
afternoon, in a dialogue with two veniremen:
You . . . understand that
the ultimate responsibil-
ity rests with the Court;
that it's not the jury's

responsibility?
During closing argument at the conclusion of
the guilt phase of the trial, the prosecutor
once again informed the jury that “[t])he mat-
ter of sentencing ultimately rests with
Court."

After the jury rendered its verdict of
guilty, the jurors were temporarily excused
from the courtroom while the court and coun-
sel made preliminary preparations for the
sentencing phase of the trial. At that time,
defense counsel requested that the jury, when
it returned, be instructed by the court that
its sentencing recommendation would be "“"en-

titled to great weight." The court refused

to grant the request:

A-42

THE COURT: Well, I
think that goes without
saying. I don't know if I
need to instruct them that
that is so.

[DEFENSE COUNSEL]: I
think it is. The reason
we would ask --

THE COURT: That's
something that I need to
do after they make their
recommendation, and I will
give it great weight.

[DEFENSE COUNSEL]: I
know, but they need to
know that so they know
we're not up there just --

THE COURT: I think
the standard instructions
bring home to them that it
is very important that
they, you know, [d]Jo not
act hastily or without due
regard to the gravity of
these proceedings, that
they should carefully
weigh and sift and con-
sider the evidence. I
think that's sufficient.

Notwithstanding his apparent understanding of
the sentencing jury's function, the judge in-
formed the jurors when they returned to the

courtroom that "[t]he final decision as to

A-43

what punishment shall be imposed rests solely
with the judge of this court." The prosecu-
tor repeated the point in the final statement
of his closing argument at the conclusion of
the sentencing phase:

What I'm suggesting to you
is that the ultimate re-
sponsibilty for the impo-
sition of the sentence
rests with Judge Philip
Federico. That is his
sworn position in the sys-
tem. He's heard every-
thing you have heard. He
may have the opportunity
to learn more before he
imposes a_ sentence. I
think this community, as
represented by this jury,
should give to him the
prerogative of imposing
the death penalty, if
that's what he ultimately
feels is required in this
case.

The court then read its instructions to
the jury. The instructions included the fol-
lowing statements regarding the jury's sen-
tencing function:

Ladies and gentlement of

the jury, it is now your
duty to advise the Court

A-44

as to what punishment
should be imposed on the
Defendant for his crime of
murder in the first de-
: gree. As you have been
4 told, the final decision
? as to what punishment
shall be imposed is the
responsibility of the
judge. However, it is
your duty to follow the
law which will now be
given to you by the Court
and render to the Court an
advisory opinion based
‘ upon your determination as
‘ to whether sufficient
aggravating circumstances
exist to justify the impo- 4
sition of the death pen-
alty, whether sufficient
mitigating circumstances
exist to outweigh any
aggravating circumstances
found to exist.

The court's instructions also included the
following statements.

The fact that the deter-
mination of whether or not
a majority of you recom-
mend a sentence of death
or sentence of life impri-
sonment in this case can
be reached by ae single
ballot should not in-
fluence you to act hastily
or without due regard to
the gravity of these pro-
ceedings. Before you

A-45

ballot, you should care-
fully weigh, sift and con-
sider the evidence, and
all of it, realizing that
a human life is at stake,
and bring to bear your
best judgment upon the
sole issue which is sub-
mitted to you at this
time, of whether a major-
ity of your number reconm-
mend that the Defendant be
sentenced to death or life
imprisonment.

After the court finished the instruc-
tions, it ordered the jury to retire and make
a decision. When the jury returned, it
announced a recommenation of death. The jury
was polled and then dismissed. After the
bailiff had declared that "“"[t]he jury has
left the courtroom," the judge remarked, for
the record, that “[t]he court, as required by
law, will give great weight to the recommen-
dation of the jury."

B.

In reviewing Caldwell claims, our task

is twofold. First we must determine whether

the prosecutor's comments to the jury were

A-46

such that they would "minimize the jury's
sense of responsibility for determining the

appropriateness of death." Caldwell, 472

U.S. at 341, 105 S.Ct. at 2646. Second, if
the comments would have such effect, we must
determine “whether the trial judge in this
case sufficiently corrected the impression

left by the prosecutor." McCorquodale v.

Kemp, 829 F.2d 1035, 1037 (llth Cir. 1987).
When a trial court does not correct mis-
leading comments as to the jury's sentencing
role, the state has violated the defendant's
eighth amendment right because the court has
given the state's imprimatur to those com-
ments; the effect is the same as if the trial
court had actually instructed the jury that
the prosecutor's comments represented a cor-

rect statement of the law. See Tucker v.

Kemp, 802 F.2d 1293, 1295 (llth Cir. 1986)

(en banc), cert. denied, 3.86 , 107

8.ct. 1359 (1987). When a trial court does

A-47

make some attempt to correct the prosecutor's
misleading comments, the question becomes
whether the corrective statement would, in
the mind of a reasonable juror who had been
exposed to the misleading comments, correct
the misapprehension that the comments would
induce. Because our focus is ultimately on

al our mode of re-

the trial court's actions,
view is similar to that used to review claims
based on erroneous jury isntructions. CE.

Lamb v. Jernigan, 683 F.2d 1332, 1339 - 40

(llth Cir. 1982) (court must consider effect
of erroneous instructi..1 on reasonable juror
"in light of the remainder of the charge and

the. entire trial"), cert. denied, 460 U.S.

1024, 103 S.Ct. 1276 (1983).

In this case, the comments by the prose-
cutor were such that they would mislead or at
least confuse the jury as to the nature of
its sentencing responsibility under Florida

law. It bears emphasizing that the

A-48

prosecutor in Caldwell stated only that the

jury's verdict would be “automatically
reviewable." Technically, this statement was
an accurate statement of Mississippi law --
death sentences are automatically reviewed by
the Supreme Court of Mississippi under Miss.
Code Ann. §99-19-105. The mischief was that
the statement, unexplained, would have likely
been misunderstood by the jurors as meaning
that their judgment call on the appropriate-
ness of a death sentence did not really mat-
ter. We are faced with a similar situation
here. The prosecutor repeatedly told that
jury that its task was to render an "“advi-
sory” recommendation. As with "automatically

reviewable" in Caldwell, this characteriza-

tion is technically accurate, at least in the
sense that the Florida death penalty statute
contains the term “advisory.” However, the
danger exists that the jurors, because they

were unaware of the body of law that requires

A-49

the trial judge to give weight to the jury
recommendation, were misinformed as to the
importance of their judgment call. The
danger is particularly strong here, because
nothing in the common meaning of the term
"advisory" would suggest to the layman that
the trial judge would in any way be bound by
the recommendation; indeed, the common
meaning of the term would suggest precisely
the contrary.

Moreover, here the prosecutor stated to
the jurors twice that the burden of imposing
the death penalty was “not on your shoul-

nl2 He repeatedly told the jurors that

ders.
the responsibility for imposing the sentence
rested with the trial judge. Additionally,
we note that the prosecutor suggested to the
jurors that the trial judge, because of his
position as a legal authority, was more able

than the jury to make the approriate senten-

cing decision. As the Supreme Court noted in

A-50

Caldwell, this kind of suggestion induces
jurors, who are “placed in a very unfamiliar
‘ ebteation and called on to make a very diffi-
cult and uncomfortable choice," to delegate
wrongly their sentencing’ responsibility.
Caldwell, 472 U.S. at 333, 105 S.Ct. at 2641
- 42. We conclude that the prosecutor's
statements, considered together, misrepresent
the nature of the jury's critical role under
the Florida capital sentencing scheme. 23
Such comments, if uncorrected, would un-
doubtedly minimize a juror's sense of respon-
sibility, thus creating "a danger of bias in
favor of the death penalty." Adams, 804 F.2d
at 1532. |
Turning to the second prong of our in-
quiry, we conclude that the trial judge's
comments did not correct the false impression
left by the prosecutor. The trial court
specifically denied defense counsel's request

that the jury be properly informed as to its

A-51

role. Moreover, the judge himself stated
that the final sentencing decision rested
"solely with the judge of this court." The
trial judge expressly put the court's impri-
matur on the prosecutor's previous misleading
statements by saying to the jurors that "[a]s

you have been told, the final decision as to

what punishment shall be imposed is the re-
sponsibility of the judge."14

The only potentially corrective state-
ment by the court came when the court in-
structed the jurors that they shou!d proceed
with "due regard to the gravity" of the mat-
ter and should “carefully weigh, sift and
consider the evidence, and all of it, reali-
zing that a human life is at stake, and bring
to bear your best judgment." This statement,
we conclude, did not cure the harm posed by
the court's other actions. The statement
would do little if anything to change a

juror's misapprehansion about the effect of

A-52

the jury's decision; it only instructs the
jurors that they should approach their task
with care and deliberation. At best, it
likely left some jurors confused as to their
proper role. We therefore conclude that the
court's actions, as considered by a reason-
able juror who had been exposed to the prose-
cutor's misleading comments did not correct
the false impression created by those com-

ments. Cf. Caldwell, 472 U.S. at 340 n.7,

105 S.Ct. at 2645 n. 7 (prosecutor's later
statements did not retract or undermine the
misimpression created by the earlier state-
ments). Because the overall effect of the
court's actions was to diminish the jury's
sense of responsibility with regard to its
sentencing role, petitioner's sentence is
invalid under the eighth amendment.
IV.

In conclusion, we reverse the district

court's denial of the writ of habeas corpus

with regard to petitioner's Caldwell claim.

A-53

We remand the case to the district court with
instructions to issue the writ setting aside
petitioner's death sentence unless the State
affords petitioner a new sentencing proceed-
ing befor a newly empaneled jury.

REVERSED AND REMANDED.

A-54

l. Petitioner's criminal conduct is de-
scribed in Mann v. State, 420 So.2d 578
(1982).

2. The operation of the Florida capital
sentencing scheme is explained in part II.
See supra note 5 and accompanying text.
Here, on petitioner's direct appeal, the
Supreme Court of Florida held that the trial
judge had improperly found two aggravating
circumstances under Fla. Stat. §921.147(5)
and had failed to specify with sufficient
Clarity his conclusions regarding mitigating
factors, as required by Fla. Stat. §921.141
- (6). Mann v. State, 420 So.2d 578, 581 (Fla.
1982). Accordingly, the supreme court order-

ed resentencing by the trial judge. Because
the errors identified by the supreme court
pertained only to the trial judge's findings,
and not to defects before the sentencing
jury, resentencing before a new jury was not
deemed necessary.

3. Petitioner has already had one re-
sentencing, pursuant to an -order by the
Supreme Court of Florida. See supra note 2

and accompanying text. That resentencing was
accomplished without empaneling a new jury;

A-55

in resentencing petitioner, therefore, the
trial court used the recommendation of the
Original sentencing jury. That being the
case, we must examine the original jury sen-
tencing proceeding in determining whether
petitioner's sentence is valid under the
eighth amendment.

4. We affirm the district court's dis-
position of the remaining claims. Those
Claims are described in the panel opinion.
See Mann _v. Dugger, 817 F.2d 1471 (llth
Cir.), vacated, 828 F.2d 1498 (llth Cir.
1987).

The attorney general argues that peti-
tioner's Caldwell claim is barred by proce-
dural default because petitioner failed to
raise the claim on direct appeal of his con-
viction and sentence. We find that the claim
is not procedurally barred. Although peti-

tioner failed to raise the claim on direct
appeal, he did raise it in his Rule 3.850
motion. The circuit court denied that motion
and petitioner appealed to the Supreme Court
of Florida. In disposing of the appeal, the
supreme court stated that its review of the
record “clearly and conclusively refute([d]
any claim that there was any constitutional

A-56

infirmity in the trial." Mann v. State, 482
So.2d 1360, 1362 (Fla. 1986) (emphasis
added). We interpret this statement as indi-
cating that the supreme court considered the
merits of each claim in petitioner's Rule
3.850 motion, including the Caldwell claim.
Since the Supreme Court of Florida therefore
chose not to enforce its own procedural de-
fault rule, federal habeas review of the
claim is not barred. See Oliver v. Wain-
wright, 795 F.2d 1524, 1528 - 29 (llth Cir.
1986), cert. denied, U.S. _, 107 S.Ct.
1380 (1987); Campbell v. Wainwright, 738 F.2d
1573, 1576 - 77 (llth Cir. 1984), cert. de-
nied, 475 U.S. 1126, 106 S.Ct. 1652 (1986);
Rogers v. McMullen, 673 F.2d 1185, 1188 (lith
Cir. 1982), cert. denied, 459 U.S. 1110, 103
S.Ct. 740 (1983).

5. Section 921.141 provides:

(1) Separate pro-
ceedings on issue of pen-
alty. -- Upon conviction

or adjudication of guilt
of a defendant of a capi-
tal felony, the court
shall conduct a separate
sentencing proceeding to
determine whether the

A-57

defendant should be sen-
tenced to death or life
imprisonment ... . The
proceeding shall be con-
ducted by the trial judge
before the trial jury as
soon a practicable .. .
- In the proceeding, evi-
dence may be presented as
to any matter that’ the
court deems relevant to
the nature of the crime
and the character of the
defendant and shall in-
clude matters relating to
any of the aggravating or
mitigating circumstances
enumerated in subsections
(5) and (6)...

(2) Advisory sen-
tence by the jury. --
After hearing all the evi-
dence, the jury shall de-
liberate and render an ad-
visory sentence to the
court, based upon the fol-
lowing matters:

(a) Whether suffi-
cient aggravating circum-
stances exist as enumera-
ted in subsection (5);

(b) Whether suffi-
cient mitigating circum-
stances exist which out-
weigh the aggravating cir-
cumstances found to exits;
and

A-58

(c) Based on these
considerations, whether
the defendant should be
sentenced to life impri-
sonment or death.

(3) Findings in sup-
port of sentence of death.
-- Notwithstanding the re-
commendation of a major-
ity of the jury, the
court, after weighing the
aggravating and mitigating
circumstances, shall enter
a sentence of life impri-
sonment or death, but if
the court imposes a sen-
tence of death, it shall
set forth in writing its
findings upon which the
sentence of death is based
as to the facts:

(a) that sufficient
aggravating circumstances
exist as enumerated in
subsection (5), and

(b) That there are
insufficient mitigating
circumstances to outweigh
the aggravating circum-
stances.

(4) Review of
judgment of conviction and
sentence of death shall be
subject to automatic re-
view by the Supreme Court
of Piorida « In addition,

do whatever he wants to. He is, by law, re-

uired to ive our recommendation reat
weight, but * is also permitted to overrule
your recommendation, if = desires to do so
and he feels under the law he should. But he
Can still only do one of those two things.
The law does not give him any other discre-
tion.

He has to, ultimately, if Mr. Mann is
convicted of murder in the first degree, say,
I sentence you to death, life, or the minimum
mandatory of tweniy-five years. That's the
only two options he has. Okay? Does that

Clear that up? Does everybody understand
that?

(THEREUPON, the prospective jurors indicated
affirmatively.)

Trial Transcript at 163 - 64 (emphasis
added).

> The prosecutor used the words “advisory”
or “recommendation” (or derivatives thereof)
during two phases of the trial. These in-
cluded comments made during voir dire, see
Trial Transcript at 108, 109, 110, 211, 283,
285, and during the closing argument of the
sentencing phase. See Trial Transcript at
1319, 1326, 1327.

By comparison, the defense counsel used
these terms just as often. These included

A-88

both lawyers indicated to the jurors that if
they found the defendant guilty of first de-

gree murder, the judge would ultimately

comments made during voir dire, see Trial
Transcript at 163- 64 for text of this com-
ment see supra note 4), 171, 173, 272, 273,
274, and during closing argument of the sen-
tencing phase. See Trial Transcript at 1331,
1338, 1341, 1342.

A-89

determine the appropriate penalty. ©

6 As the majority notes, the prosecutor made
three references to the judge as the final
decision maker. These included comments
twice made during voir dire, see Trial Tran-
script at 110 - 111, 285, and once during the
closing argument of the sentencing phase.
See Trial Transcript at 1330.

The defense counsel, however, also indi-
cated that the judge had the burden of
choosing between a death and a life sen-
tence. See Trial Transcript at 164 - 165
(for text of this comment, see supra note
4). During his final argument of the senten-
cing phase, defense counsel again spoke of
the judge's responsibility as sentencer:

To begin at the very be-~
ginning, the issue here is
whether this man lives, by
my computation, to the age
of eighty-five in prison
before he can be eligible
for parole or whether he
dies. This judge can sen-
tence this man, in addi-
tion to the twenty-five
years minimum mandatory,
he can sentence him in
addition to that ninety-
nine years on the kidnap-
ping and retain jurisdic-
tion over him for thirty-
three of those years to
prevent his release or his
consideration for release,
as I understand it, to
approximately the year
2039. So, the issue that

A-90

Defense counsel's numerous comments re-
garding the jury's advisory role indicate
that he agreed with the explanations given by
the prosecutor and the trial judge. This
strengthens my conviction that the prosecutor
accurately stated the Florida law and did not
mislead the jury. Therefore, I am unable to
find that the prosecutor's statements created

a Caldwell violation.

Because I believe that the prosecutor
did not mislead the jury, I do not find it
necessary to determine whether the trial
judge's comments were sufficiently cura-
tive. I note, however, that the trial
judge's statements were not misleading. The
judge explained to the jury its role in the

Florida sentencing scheme.

you are here to determine
is not whether he lives
among us. The issue is
whether he lives.

Trial Transcript at 1331.

A-91

The trial judge essentially repeated the
explanations given by the lawyers. He told
the jury that its determination of the appro-
priate penalty would serve as a recommenda-
tion.’ The judge also stated that although
the final determination of ty curative. I
note, however, that the trial judge's
statements were not misleading. The judge
explained to the jury its role in the Florida
sentencing scheme.

The trial judge essentially repeated the
explanations given by the lawyers. He told
the jury that its determination of the appro-
priate penalty would serve as a recommenda-

7

tion. The judge also stated that although

7 whe trial judge made several references to
the advisory nature of the jury sentence.
These comments occurred during post verdict
instructions, see Trial Transcript at 1236,
during the initial instructions of the sen-
tencing phase, see Trial Transcript at 1252 -
1253, and during the final instructions of
the sentencing phase. See Trial Transcript
at 1344 - 1351.

A-92

the final determination of the appropriate
penalty rested with the court, the jury had a
duty to recommend the appropriate penalty in

this case.® one of the trial judge's last

8 During the initial instructions of the
sentencing phase the trial judge stated:

Members of the jury, you
have found the Defendant
guilty of murder in the
first degree. The punish-
ment for this crime is
either death or life im-
prisonment. The final de-
cision as to what punish-
ment shall be _ imposed
rests solely with the
judge of this court. How-
ever, the law requires
that you, the jury, render
to the Court an advisory
sentence as to what pun-
ishment should be imposed
upon the defendant.

Trial Transcript at 1252.

During the final instructions to the
jury in the sentencing phase, the judge
stated:

Ladies and gentlemen of
the jury, it is now your
duty to advise the Court
as to what’ punishment
should be imposed on the

A-93

comments before the jury retired reinforced
the importance of the jury's task:

The fact that the deter-
mination of whether or not

Defendant for his crime of
murder in the first de-
gree. As you have been
told, the final decision
as to what punishment
shall be imposed is the
responsibility of the
judge. However, it is
your duty to follow the
law which will now be
given to you by the Court
and render to the Court an
advisory opinion based uon
your determination as to
whether sufficient aggra-
vating circumstances exist
to justify the imposition
of the death penalty,
whether sufficient mitiga-
ting circumstances exist
to outweigh any aggrava-
ting circumstances found
to exist. Your verdict
should be based upon the
evidence which you have
heard while trying the
guilt or innocence of the
Defendant, and evidence
which has been presented
to you in this proceeding.

Trial Transcript at 1344 - 44 (There are two
consecutive pages in the trial transcript
numbered as 1344.)

A-94

ee

a majority of you rrecom-
mend a sentence of death
or sentence of life impri-
sonment in this case can
be reached by a single
ballot should not § in-
fluence you to act hastily
or without due regard to
the gravity of these pro-
ceedings. Before you bal-
lot, you should carefully
weigh, sift and consider
the evidence, and all of
it, realizing that a human
life is at stake, and
bring to bear your best
judgment upon the _ sole
issue which is submitted
to you at this time, of
whether a majority of your
number recommend that the
Defendant be sentenced to
death or to life imprison-
ment.

Trial transcript at 1348 - 1349 (emphasis
added). Such a closing instruction had to
impress upon the jury the importance of their
role in the sentencing process.

One other aspect of cases of this sort
troubles me. Jurors are a cross section of
our communities. They are our average citi-
zens with differing degrees of education,

sophistication, experiences and views of

A-95

government. My experience with juries con-
vinces me that they approach such service
with great dedication and awareness. In
cases involving a question of whether or not
the death penalty should be imposed, great
concern and seriousness of purpose literally
permeates the courtroom. Jurors, like
judges, lose sleep and are totally
preoccupied with doing what is right and cor-
rect under the law. We, as judges, should be
slow to assume that such men and women have
somehow been derailed or led astray.

Finding nothing in this record, when
considering such in its entirety, that would
mislead or tend to diminish the responsibil-

ity of the jury, I would deny relief.

A-96

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1904%3A1. Public record. Not legal advice.