Opposition Brief — McCormick v. Coleman

Supreme Court. U.S.

FILED

PReA TEA

e cr SEP 29 1989

Bue wberse-

JOSERH F. SPANIOL, JR. z

CLERK

No. 89-187 :

In The :

4 SUPREME COURT OF THE UNITED STATES 3

*

October Term, 1989 4

:

JACK McCORMICK, Warden of the Montana State Prison,

:

and MARC RACICOT, Attorney General of the State of Montana, a

Petitioners,

v.

DEWEY E. COLEMAN,

Respondent.

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENRY T. GREELY

Stanford Law School

Stanford, CA 94395

(415) 723-2517

*TIMOTHY K. FORD

MacDonald, Hoague & Bayless

1500 Hoge Building

Seattle, WA 98104

(206) 622-1604

CHARLES F. MOSES

Moses Law Firm

300 N. 25th Street, Penthouse

Billings, MT 59103

ORIGINAL

ATTORNEYS FOR RESPONDENT

*Counsel of Record

QUESTIONS PRESENTED

is Was the Court of Appeals correct in its unanimous

conclusion that a capital defendant "is due at least that amount

of process which enables him to put on a defense during trial

knowing what effect such a strategy would have on subsequent

capital sentencing"?

2 Can the State argue for the first time in this Court

that this legal principle is a "new" constitutional rule which

should not be retroactive to this case?

3% Is this a "new rule" of federal constitutional law?

4. Can a violation of this due process principle, which

has caused defense counsel in a capital case to try the case

without knowing the sentencing implications of any of his

decisions and actions before or during trial, be held to be

harmless error?

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

I.

II.

THE PETITIONERS HAVE SET FORTH NO GROUND

UNDER RULE 17 TO JUSTIFY GRANTING THE PETITION

FOR CERTIORARI.

THE DECISION OF THE EN BANC COURT OF APPEALS IS

A CORRECT AND STRAIGHTFORWARD APPLICATION OF

LONG ESTABLISHED PRINCIPLES OF DUE PROCESS.

A. The Court of Appeals Was Correct In Its

a he

11

14

CASES

Bouie v. City of Columbia, 378 U.S. 347 (1964)

Calder v. Bull, 3 Dall. 386 (1798)

Cole v. Arkansas, 333 U.S. 196 (1948)

Coleman v. Risley, 663 P.2d 1154 (Mont. 1983)

Coleman v. Risley, 839 F.2d 434 (9th Cir. 1988)

Coleman v. Risley, 874 F.2d 434 (9th Cir. 1989)

Coleman v. State, 633 P.2d 624 (Mont. 1981)

Commonwealth v. Story, 440 A.2d 488 (Pa. 1981)

Dobbert v. Florida, 432 U.S. 282 (1977)

Faretta v. California, 422 U.S. 806 (1975)

Gardner v. Florida, 430 U.S. 349 (1977)

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

Holloway v. Arkansas, 435 U.S. 475 (1978)

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

Meller v. Stete, 581 P.2d 3 (Nev. 1978)

Miller v. Florida, 482 U.S. 423 (1987)

Moore v. Zant, 57 U.S.L.W. 4399

(U.S., March 29, 1989)

Penry v. Lynaugh, 57 U.S.L.W. 4958 (1989)

People v. Harvey, 76 Cal.App.3d 441,

142 Cal.Rptr. 887 (1978)

People v. Hill, 401 N.E.2d 517 (Ill. 1980)

Presnel]_v. Georgia, 439 U.S. 14 (1978)

Rose v. Clark, 478 U.S. 570 (1986)

Satterwhite v. Texas, 108 S.Ct. 1792 (1988)

State v. Coleman, 597 P.2d 732 (Mont. 1978)

State v. Coleman, 605 P.2d 1000 (Mont. 1979)

State v. Coleman, 633 P.2d 624, 633 (Mont. 1981)

State v. Collins, 370 So.2d 533 (La. 1979)

State v. Lee, 340 So.2d 474 (Fla. 1976)

ii.

11,12

State v. Lindquist, 589 P.2d 101 (Id. 1979)

State v. Rodgers, 242 S.E.2d 215 (S.C. 1978)

Strickland v. Washington, 466 U.S. 668 (1983)

Teague v. Lane, 109 S. Ct. 1060 (1989)

Weaver v. Graham, 459 U.S. 24 (1981)

STATUTES

RCM 1947 §95-2206.10 (Supp. 1977)

iii.

No. 89-187

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

JACK McCORMICK, Warden of the

Montana State Prison, and

MARC RACICOT, Attorney General

of the State of Montana,

Petitioners,

Vv.

~ DEWEY E. COLEMAN,

Respondent.

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Respondent Dewey Coleman respectfully submits that the Court

should not issue a writ of certiorari to review this case.

STATEMENT OF THE CASE

Petitioner's recitation of the facts and procedural history

of this case does not give a fully balanced view of the record on

which the Court of Appeals rendered its decision below.2

lfhe disturbing facts of this case produced several sharply

divided decisions from the Montana Supreme Court. See State v.

Coleman, 605 P.2d 1000 (Mont. 1979) (affirming death sentence,

one Justice dissenting) ; , 633 P.2a 624 (Mont.

1981) (denying postconviction relief, two Justices dissenting) :

Co. , 663 P.2a 1154 (Mont. 1983) (denying habeas

corpus relief, three Justices dissenting).

oi

Respondent Dewey Coleman, a black man with no criminal

record, and Robert Nank, a white man with a criminal record and a

history of violence, were arrested in 1974 and charged with the

kidnaping and murder of a young white woman named Peggy Harstad,

near Forsyth in eastern Montana. At the time of the arrest

Montana had a mandatory death sentence for the crime of

aggravated kidnaping resulting in the death of the victim.

In early May 1975, Mr. Nank made a plea bargain, agreeing to

plead guilty and to testify against Mr. Coleman in return for the

state dropping the capital kidnaping count. Shortly thereafter,

Mr. Coleman offered to plead guilty on the same terms, although

he maintained his innocence. That offer was refused by the

prosecution, for a variety of ostensible reasons, most of them

focusing on Mr. Coleman's denial of participation in the crime.

When the trial judge expressed an inclination to accept Mr.

Coleman's offer, the prosecutor disqualified him from the case.

The case was then taken over by the Judge A. B. Martin, who

eventually presided at trial. Shortly after Judge Martin entered

the case, Mr. Coleman's then-counsel twice offered in open court

to have Mr. Coleman plead guilty and admit guilt.? Each time the

offer was refused by the prosecution. Counsel was then allowed

to withdraw, new counsel was appointed, and the case went to

trial.

At trial, the main evidence against Mr. Coleman was Robert

Nank's testimony that he had initiated the crime and Coleman had

helped him. Mr. Coleman denied. any participation in the crime;

he testified he was hitchhiking with Nank on the day in question,

but that Nank had left him behind (because drivers would not stop

2The offer was first made at a hearing at which Mr. Coleman

was not present. In that hearing, defense counsel informed Judge

Martin and the prosecution--falsely, we maintain--that a sodium

amytal test had shown that "there was participation on his part

in the crime." The offer was renewed the next day in Mr.

Coleman's presence--but without any direct statement by defense

counsel that Mr. Coleman had participated in the crime.

to pick up a black man) and later returned with the victim's car.

The circumstantial evidence was at least equally consistent with

Mr. Coleman's version of the events as it was with Mr. Nank's;

but the all-white jury convicted Mr. Coleman of all three counts.

On the kidnaping count, Judge Martin imposed the mandatory

sentence of death by hanging.

On appeal, the Montana Supreme Court affirmed Mr. Coleman's

conviction, but held that Montana's mandatory death »enalty

statute was unconstitutional and vacated his sentence of death.

State v. Coleman, 597 P.2d 732 (Mont. 1978). The court remanded

the case for resentencing, without directions.

Over Mr. Coleman's objection, Judge Martin decided to

resentence him under Montana's new death penalty statute, which

had been passed in 1977, three years after the crime and two

years after the trial and first death sentence. That statute

required the trial judge to sentence a defendant to death if one

of seven enumerated aggravating circumstances existed and there

were “no mitigating circumstances sufficiently substantial to

call for leniency.” RCM 1947 §95-2206.10 (Supp. 1977).

At the resentencing, a presentence report was prepared, but

no new evidence was taken on the existence of mitigating

circumstances. Instead, the trial judge used the evidence at

trial to find mitigating circumstances absent, in a written order

sentencing Mr. Coleman to death. The sentencing order was handed

to counsel before either side presented any argument at the

sentencing hearing. It gave no weight to any of a number of

mitigating factors: Mr. Coleman's total lack of a criminal

record at age 28; his honorable military service and his history

of involvement in community service organizations; his emotional

problems which had resulted in his hospitalization immediately

before the crime; the lesser sentence given to Robert Nank

despite his admitted participation and criminal record; and the

——e

fact there was "practically no cridible evidence connecting the

defendant to the commission of the crime." State v. Coleman, 633

P.2d 624, 633 (Mont. 1981) (Morrison and Shea, JJ., dissenting).

On appeal, the Montana Supreme Court affirmed the new death

sentence. Two state court petitions for postconviction relief

were denied, without an evidentiary hearing. A petition for

habeas corpus was similarly denied. on the Responden*'s motion

for summary judgment, by the United States District Court for the

District of Montana.

That decision was affirmed by a panel of the Ninth Circuit,

over a lengthy and strongly worded dissent. Coleman v. Risley,

839 F.2d 434 (9th Cir. 1988); Petition App. 74. Upon en banc

review of that panel decision--in a opinion written by Judge

Thompson, the author of the original panel majority opinion--the

Court of Appeals reversed itself and unanimously? held Mr.

Coleman's death sentence unconstitutional. Coleman v. Risley,

874 F.2d 434 (9th Cir. 1989); Petition App. 1. Its decision was

limited to one of the several sentencing issues raised in the en

banc petition; it held the others mooted by its order vacating

Mr. Coleman's sentence of death. Petition App. 11.

REASONS FOR DENYING THE WRIT

I. THE PETITIONERS HAVE SET FORTH NO GROUND UNDER RULE i7 TO

JUSTIFY GRANTING THE PETITION FOR CERTIORARI.

Mr. Coleman's case is one of first impression; in all

likelihood, it is a case of last impression as well. Mr. Coleman

is the only person either side has identified who is directly

affected by the holding of the Court of Appeals. His case is

unique; it does not meet any of the grounds for granting a writ

of certiorari set out in this Court's Rule 17.

3yudge Alarcon dissented from the determination of the Court

of Appeals majority that, in light of its disposition of the

sentencing issue, Mr. Coleman's race discrimination claim did not

have to be reached. Pet. App. 58. We assume that his silence on

the due process issue itself indicates his agreement with the

majority on that point.

For all the hypothetical protests of Petitioners and their

Amici, they do not identify a single capital case treated like

Mr. Coleman's. That is because no other state court has done

what Montana did here: applied a new death penalty statute to a

defendant already tried and sentenced under an unconstitutional

statute after the sentence imposed under the unconstitutional

statute was reversed. avery other state court to confront such a

situation appears to have held such retroactive application of a

new statute impermissible. ‘4

Nor is it likely that a state court would allow a similar

aberration of due process--writing the legal rules after the

trial has ended--in a noncapital case. In years of argument on

this issue, no one has found even one other case where that

occurred. Probably because they were so obviously unfair--and a

product of a legal era where the law was in flux and extremely

difficult to decipher, Lockett v. Ohio, 438 U.S. 586, 602 (1978)

--the procedures followed in Mr. Coleman's case are sui generis.

This Court's Rule 17 sets forth the considerations

governing review on certiorari. This case meets none of its

criteria. There is no conflict between federal courts of

appeals; no other federal court has faced or is likely to face

this question. There is no conflict with a state court of last

resort°--except for the Montana Supreme Court in the instant

case, of course, the kind of one-to-one conflict present in every

grant of the federal habeas writ.

4notably, this includes the supreme courts of several of the

states appearing here as Amici. See State v. Lindquist, 589 P.2d

101 (Id. 1979); People v. Harvey, 76 Cal.App.3d 441, 142

Cal.Rptr. 887 (1978); Meller v, State, 581 P.2d 3 (Nev. 1978);

State v. Rodgers, 242 S.E.2d 215 (S.C. 1978); , 401

N.E.2d 517 (Ill. 1980); Commonwealth v. Story, 440 A.2d 488 (Pa.

1981). See also State v. Lee, 340 So.2d 474 (Fla. 1976); State

v. Collins, 370 So.2d 533 (La. 1979).

Samici misspeak themselves in their string citation of cases

involving “aggravating circumstances arising subsequent to

conviction." Brief of Amici 10. In every one of the cases they

cite, the aggravating facts were all known prior to, and placed

in evidence during, a sentencing or resentencing hearing.

‘. :

4 . |

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id Os ee en, ee ee ee ee ee Se. en ee Ses aI |

As discussed below, we believe the decision of the en banc

Court of Appeals was plainly correct. But even if it were not,

because of the unique procedural history it addressed, it is a

decision ill suited for review by this Court.

II. THE DECISION OF THE EN BANC COURT OF APPEALS IS A CORRECT

AND STRAIGHTFORWARD APPLICATION OF LONG-ESTABLISHED

PRINCIPLES OF DUE PROCESS.

The central, unanimous holding of the Court of Appeals

attacked by the Petitioners here, was this:

The defendant is due at least that amount of process

which enables him to put on a defense during trial

knowing what effect such a strategy will have on the

subsequent capital sentencing, the results of which may

. be equally if not more critical to the defendant than

the conviction itself.

Petition App. 18. Petitioners never directly attack either that

unexceptionable statement of the law, or its application to this

case. They do not argue that Mr. Coleman had such knowledge;

they de not deny the importance of such knowledge; and they do

not say that deprivation of such knowledge should not violate the

Due Process Clause's norms of procedural fairness. ®

Instead, the Petitioners make three arguments: that the

Court of Appeals analysis has "blurred the distinction between

clauses of the Constitution" (Petition 12); that the due process

principles underlying its decision constitute a “backward leap"

which should be held nonretroactive "new" law under Teague v.

Lane, 109 S. Ct. 1060 (1989) (Petition 13); and/or that any due

process violation in this case should be held harmless (Petition

15). These arguments are both unimportant beyond the confines of

this case and wrong.

Spetitioners' Amici do take this tack, denigrating the

interest of capital defendants in the "mere trial stratagems" of

informed counsel. Brief of Amici 5. This Court's cases give

more respect than Amici do to the role of defense counsel

“consult(ing) with the defendant on important decisions ... in

the course of the prosecution." Strickland v. Washington, 466

U.S. 668, 688 (1983).

Petitioners' main argument against the Court of Appeals'

unanimous determination that Montana's application of its laws to

this case violated the Due Process Clause, is that the state's

actions did not violate the Ex Post Facto Clause.’ Petition at

9-12. Plainly, this argument misses the Court of Appeals' point.

Mr. Coleman has consistently argued that his death sentence

violated both clauses. However, in light of its disposition of

this case on due process grounds, the Court of Appeals did not

find it necessary to reach the much more difficult ex post facto

issue. Petition, App. 13 n.7. Dobbert v. Florida, 432 U.S. 282

(1977) obviously would be the starting point for analyzing that

issue. Mr. Dobbert, however, was both tried and sentenced under

a constitutional statute. Unlike Mr. Coleman, Mr. Dobbert could

not show any way in which the retroactive legislation made any

substantial difference in his position, beyond providing a

constitutional sentencing statute. That statute was in effect at

all points in Mr. Dobbert's trial. The due process concern

central to this case, therefore, played no part in Mr. Dobbert's,

and the Court had no occasion to address it there.

The Ex Post Facto and the Due Process Clauses are not

coextensive in all their applications. It is true that many

actions with retroactive effects could be held to violate either

provision. But that does not mean--as Petitioners assume--that

7petitioners' Amici take a similar approach, confounding two

lines of due process decisions, to argue that the Ex Post Facto

and Due Process Clauses must, in all their applications, be held

coterminous. Brief of Amici Curiae at 6-8. There may or may not

be merits to that argument when--as in the cases amici cite, a

due process issue focuses on a change in the law after the time

of the offense. But the argument makes no sense in reference to

due process issues arising, like those here, changes in the law

after the trial.

—

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9

the converse is true, so that a retroactive action which does’not

violate the Ex Post Facto Clause can never violate the Due

Process Clause. The exclusive focus of the Ex Post Facto Clause

is on the moment "'when the crime was consummated.'" Miller v.

Florida, 482 U.S. 423, 430 (1987), quoting Weaver v. Graham, 450

U.S. 24, 30 (1981); see Calder v. Bull, 3 Dall. 386, 390 (1798).

The Due Process Clause has a parallel application, where a

retroactive judicial change in the law deprives an individual of

“fair warning that his contemplated conduct constitutes a crime."

Bouie v. Columbia, 378 U.S. 347, 355 (1964). But that is

certainly not the only concern of the Due Process Clause, or even

its principal one. In most of its applications, the Due Process

Clause looks more to "the character of the procedure which leads

to the imposition of ems wl than the legal availability of "a

particular result of the sentencing process." Gardner v.

Florida, 430 U.S. 349, 358 (1977).

Consider this hypothetical: After both the crime and the

trial in a particular case, a state, faced with a federal

determination that it is constitutionally insufficient to make a

conviction for a particular crime turn on proof of facts A and B,

enacts a new statute which requires proof of facts A, B, and Cc.

The defendant ir that case plainly cannot claim that the

statutory change is ex post facto, because the change has

increased the state's burden of proof. But that defendant

certainly could complain, under the Due Process Clause, if a

state appellate court upheld that conviction by finding that fact

C had been proved at trial--although the defendant and his

counsel were never told that fact C was in issue.

Of covrse, that is not really a hypothetical; it is

essentially this case. It is also, with slight modification,

Cole v. Arkansas, 333 U.S. 196 (1948) and Presnel] _v. Georgia,

439 U.S. 14 (1978). It is a factual scenario which is so

obviously and fundamentally unfair that every Justice in those

two cases agreed that, if established, it would violate due

process. The unanimous judgment of the Court of Appeals to the

same effect says nothing about the Ex Post Facto Clause, and

presents no controversy sufficient to call for this Court's

resolution.

B. The Decision Below Presents No Retroactivity Question.

As is the fashion this year, Petitioners argue here for the

first time that Mr. Coleman is seeking the application of a "new"

constitutional rule under Teague v. Lane, 109 S.Ct. 1060 (1989),

which they argue should not be “retroactive” and thus should not

have been considered by the Court of Appeals below. Petition 15.

Petitioners never said that in the Court of Appeals, in

argument or on rehearing, although the en banc decision below

postdated Teague by over two months. This petition marks the

first time at any level the State has pled, argued, or suggested

that Mr. Coleman's claims could not be considered in a habeas

corpus action. We do not think the State should be permitted to

withhold this argument until it comes to this Court. See Moore

v. Zant, 57 U.S.L.W. 4399 (U.S., March 29, 1989) (dissenting

opinion of Justice Blackmun). If there were a legitimate claim

of nonretroactivity here, it could and should have been presented

to the courts below.

But there is no real question of retroactivity in this case.

Petitioners' effort to manufacture one strains credulity: its

explicit argument is that Boulje v. City of Columbia, 378 U.S. 347

(1964) --decided some sixteen years before Mr. Coleman's sentence

became final--should not be applied "retroactively" here.

Petition 13, 14. Petitioners' complaint in this regard is

confusing: its concern appears to be not that Bouijie is too new,

but that it is too old, so that its application to this case

constitutes "an unwarranted backward leap...." Petition 14.

— af ~~ i a eee, te

The due process principles chat govern the Court of Appeals’

decision are actually much older than Bouie. In 1948, Justice

Black wrote this for a unanimous Court:

No principle of procedural due process is more clearly

established than that notice of the specific charge,

and the chance to be heard in a trial of the issues

raised by that charge, if desired, are among the

constitutional rights of every accused in a criminal

proceeding in all courts, state and federal.

Cle v. Arkansas, 333 U.S. at 199. The unanimous judgment of the

Court of Appeals was that the disposition of this case was

"dictated by” this "({uJnderlying ... principle ...." Penry v.

Lynaugh, 57 U.S.L.W. 4958, 4961, 4962 (1989), quoting Teague v.

Lane, 109 S. Ct. at 1090 (original emphasis):

Coleman was given no notice whatsoever of the life and death

consequences of his actions in defending himself against the

State's prosecution before and during trial. A defendant's

right to notice and to fair warning of the conduct that

impacts upon his liberty is a basic principle long

recognized by the Supreme Court. Cf.

, 378 U.S. 347, 350-51 (1964)? In re Oliver, 333

U.S. 257, 273 (1948). Because Coleman had no reason to

suspect that his decisions at trial would come back to haunt

him at a sentencing hearing, we must conclude that he was

denied due process when he was resentenced to death under

Montana's revised death penalty statute.

Petition App. 18.

Petitioners' argument would reduce Teague to an absurdity:

a declaration that every application of the law to a novel

situation constitutes a "new rule" which cannot be applied

"retroactively" to the only set of facts it will ever fit.

Surely, Teague does not forbid federal habeas courts from

returning in this manner to bedrock due process principles,® in

assessing the constitutionality of aberrant state proceedings,

like those in this case.

8the fundamental nature of the due process principles

applied here provides another reason Teague would not prohibit

their application here, even if they could be called "new":

Teague exempts from its rule of nonretroactivity the "bedrock

procedural elements" of a fair trial, "the kind of absolute

prerequisite to fundamental fairness that is ‘implicit in the

concept of ordered liberty.'" 109 S.Ct. at 1076-77.

10

There was some disagreement among the judges of the Court of

Appeals on the issue of whether the constitutional error they all

found was harmless. Eight of the ten judges found that "the due

process error here is not subject to harmless error analysis."

Petition App. 21. Judge Trott apparently believed harmless error

analysis could apply; but he was convinced that the record made

"it virtually certain in my judgment that the error cannot be

said to have been harmless beyond a reasonable doubt." Petition

App. 57. Judge Wallace disagreed, arguing that "the record, in

its present state, cannot yield an answer to the harmless error

inquiry." Petition App. 29.

Though nominally adopting Judge Wallace's position, the

thrust of Petitioners' argument is directly contrary to it:

Petitioners' claim is that the record shows that the error,

admitted arguendo, was harmless. Petition 15-17. It is not

usually this Court's practice to spend its time making fact-bound

harmless error determinations, Rose v. Clark, 478 U.S. 570, 583

(1986); much less is a claim of error in such a determination by

a lower court a ground for granting certiorari. But even if it

were, there was no error here in this regard. There is ample

evidence of prejudice in the present record. Petitioners’

contrary claim that there is none cannot be squared with the

record, and was rejected by every judge below.?

9petitioners' argument focuses solely on the Court of

Appeals' three examples of the most obvious decisions affected by

Mr. Coleman's counsel's ignorance of the legal implications of

his actions at trial, forgetting that they were just that:

examples. It also misrepresents the record.

Petitioners dismiss the idea that Mr. Coleman might have

disqualified the trial judge, had he known he was the sentencer,

telling this Court there is no "reflection of bias against

Coleman in the record." Pet. 17. The Court of Appeals knew

better: Judge Martin's apparent racial bias, exemplified by his

reference to the 28-year-old Mr. Coleman as "this black boy", has

been a major issue throughout this case. See Pet. App. 108-9,

182-3. (cont nued)

11

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The broader legal question of the amenability of this kind

of error to a harmlessness evaluation was resolved in Judge

Thompson's majority opinion by a faithful application of this

Court's well-developed jurisprudence in this area. The majority

recognized that harmless error analysis can apply to capital

cases, after Satterwhite v. Texas, 108 S.Ct. 1792 (1988).

Petition App. 19. It acknowledged "that the ‘errors to which

Chapman does not apply ... are the exception and not the rule.'

Rose v. Clark, 478 U.S. 570, 578 (1986)." Petition App. 20. It

then carefully considered whether this was the kind of error that

could ever be determined, beyond a reasonable doubt, to be

harmless, or whether the error was so pervasive that the inquiry

would be "'purely speculative'". Petition App. at 18-21, quoting

Satterwhite v. Texas, 108 S.Ct. at 1797. j

After a detailed examination of the impact of the change in

Montana law on ur. Coleman's defense (Petition App. 15-17), the

Court of Appeals majority found that a harmless error

determination in this case would require such pure speculation.

5 {cont.)-

Petitioners' contention that the trial judge gave no crucial

weight to the evidence of the uncharged "Roundup burglary",

unknowingly interjected into the trial by defense counsel, is

based on a partial quote from the trial judge's decision, taken

out of context. That quote is inconsistent with the trial

judge's written findings which show that it was this evidence

which made the crucial difference in denying Mr. Coleman credit

in mitigation. This is what the written find said:

The only other criminal act which appears the trial

record in this cause is the aggravated burglary of a

home in Roundup, Montana, where certain guns were

stolen by the defendant and Robert Nank on July 4,

1974. By reason of the foregoing, the credit in

mitigation allowed by Sections 95-2206.9(1) is not

appropriate to this defendant.

Pet. App. 329-30 (emphasis added).

Petitioners' simplistic suggestion as to how the question

"“(w)hether Coleman would have testified may be analyzed from the

record", Petition at 17, shows no appreciation of the complex

considerations that go into that crucial trial decision in a

capital case. As Judge Trott wrote in his concurring opinion,

"(a)nyone familiar with death penalty cases knows the issues

confronting defense counsel highlighted by Judge Thompson are

real. This is not a matter of speculation.” Pet. App. 57.

12

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Coleman's counsel made countless tactical decisions at

trial aimed solely at obtaining Coleman's acquittal,

without even a hint that evidence in the record would

be considered as either mitigating or aggravating

factors. This due process violation had a pervasive

effect on the composition of the trial record. As we

have already observei, Coleman's counsel might not have

called his client to testify under the new statute. He

might not have brought in evidence of Coleman's prior

criminal activity in his cross-examination of Nank. He

might have challenged the trial judge. It would be

fruitless in this case to require trial counsel to

provide a record of how he or she would have handled

the case differently. The error is such that no

additional evidence is needed to demonstrate that the

error “pervade(s) the entire proceeding." [Satterwhite

v. Texas, 108 S. Ct. at 1797) .... We will not affirm

Coleman's death sentence by speculating that his

defense counsel might have made the same pretrial and

trial decisions regardless of the sentencing scheme.

Petition App. 21.

A consideration of the mechanics of Judge Wallace's

theoretically reasonable counterproposal of a remand and an

evidentiary hearing, we believe, demonstrates the wisdom of the

majority's decision. What would be the State's burden at such an

evidentiary hearing? With respect to every tactical decision

made at trial, the State would have to prove beyond a reasonable

doubt that Mr. Coleman's counsel would not have done anything

differently had he known that Mr. Coleman would be sentenced

under a discretionary statute. Trial counsel is still alive, and

could be called; but what testimony could he give? In all

likelihood on most points, he and Mr. Coleman--like any defendant

or defense lawyer in a similar situation--could only theorize

whether they might have done things differently. To show

anything beyond a reasonable doubt from such counterfactual

speculation is impossible. And that speculation would

potentially apply to nearly every decision made!°--or not made,

because there were no countervailing sentencing considerations to

weigh--throughout the trial and pretrial proceedings in the case.

10one point on which there would be little need for

speculation was defense counsel's introduction of the Roundup

burglary evidence. It was this point that convinced Judge Trott

--who said he otherwise might agree with Judge Wallace--that it

is "virtually certain ... the error cannot be said to have been

harmless beyond a reasonable doubt." Pet. App. 57.

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It is for this reason we believe the majority below was

right, and this case is a perfect example of those exceptional

situations where harmless error analysis is not possible. The

pervasiveness of the impact of the error here places it ina

class with the situations where this Court has found harmless

error analysis most clearly useless: total denial of counsel,

Gideon v. Wainwright, 372 U.S. 335 (1963); denial of the right to

self-representation, Faretta v. California, 422 U.S. 806 (1975);

or conflicts of interest in defense representation, Holloway v.

Arkansas, 435 U.S. 475 (1978).

But right or wrong, the Court of Appeals' analysis of this

issue was sound, and opened no new territory in this well-

surveyed area of harmless error Suptdprudince: The precise

question it answered is unlikely to be raised again, as the

constitutional error to which it applies will probably never

recur. There is no good reason to grant certiorari to reexamine

this question.11

The petition for a writ of c ari-should be denied.

Sao ly submitted,

TIM K. —

HENRY T. GREELY

CHARLES F. MOSES

ATTORNEYS FOR RESPONDENT

September 29, 1989.

llciting Judge Alarcon's separate opinion, Petitioners

make a final argument that the Court of Appeals' directions

for disposition of the case on remand were unclear or erroneous.

Petition 19-20. They do not even make a pretext of an argument

that this aspect of the decision below presents an issue worthy

of review under Rule 17. If Petitioners' had questions about the

basis for, or nature of, the Court of Appeals' remand order,

those should have been raised in that court in a motion for

reconsideration or clarification; it is not a matter which, bv

any test, warrants this Court's time and attention.

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