Amicus Curiae Brief — Elliott v. Virginia

MOTION FILED oe

NOV 17 No. 04-515

IN THE

Supreme Court of the Anited States

LARRY BILL ELLIOTT,

Petitioner,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

MOTION FOR LEAVE TO FILE BRIEF

AMICI CURIAE AND BRIEF AMICI CURIAE OF

THE NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AND THE VIRGINIA

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

PAMELA HARRIS DAVID W. DEBRUIN *

Co-Chair, Amicus Committee LORELIE S. MASTERS

NATIONAL ASSOCIATION OF VICTORIA H. JUEDS

CRIMINAL DEFENSE LAWYERS JENNER & BLOCK LLP

1625 I Street, NW, 10th FI. 601 Thirteenth Street, N.W.

Washington, D.C. 20006 Washington, D.C. 20005

(202) 383-5386 (202) 639-6000

STEVEN BENJAMIN CHRISTOPHER V. PARENTE

President JENNER & BLOCK LLP

VIRGINIA ASSOCIATION OF One IBM Plaza

CRIMINAL DEFENSE LAWYERS 330 N. Wabash Avenue

P.O. Box 2452 Chicago, IL 60611

Richmond, VA 23218 (312) 222-9350

(804) 788-4444

* Counsel of Record

Counsel for Amici Curiae

SSS

a EN A CE LL I SI CI TE LE ET APT EE BCE EE ELT IE AO: AS

WILSON-EPES PRINTING CO., INC.- — (202) 789-0096 - WASHINGTON, D. C. 20001

No. 04-515

IN THE

Supreme Court of the Anited States

LARRY BILL ELLIOTT,

Petitioner,

Wa

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Virginia

MOTION FOR LEAVE TO FILE BRIEF AMICI

CURIAE AND BRIEF AMICI CURIAE OF THE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AND THE VIRGINIA

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

Pursuant to Supreme Court Rule 37.2, the National

Association of Criminal Defense Lawyers (““NACDL”) and

the Virginia Association of Criminal Defense Lawyers

(“VACDL”) respectfully request leave to file the attached

brief amici curiae in support of Petitioner, Larry Bill Elliott.

Petitioner has consented to the filing of the brief. Counsel

for Respondent has not consented to the filing of the brief.

NACDL is a non-profit corporation with more than

10,000 members nationwide and 28,000 affiliate members in

50 states, including private criminal defense lawyers, public

defenders, and law professors. Among NACDL.’s objectives

are to ensure that appropriate measures are taken to

safeguard the rights of all persons involved in the criminal

justice system and to promote the proper administration of

justice. NACDL has appeared as amicus curiae in this Court

on numerous occasions.

VACDL - formerly the Virginia College of Criminal

Defense Attorneys before it became an affiliate of

NACDL - is a statewide organization of attorneys whose

practice primarily focuses on the representation of those

accused of criminal violations. VACDL seeks to improve

the quality of justice in Virginia by working to ensure

fairness and equality before the law.

In this case, the Virginia Supreme Court affirmed

Petitioner’s death sentence based upon a “vileness”

aggravator, which the trial court applied without a narrowing

construction. The vileness aggravator used by the jury to

sentence Petitioner to deaili is virtually indistinguishable

from the vileness aggravator that this Court held to be a

violation of the Eighth Amendment in Godfrey v. Georgia,

446 U.S. 420 (1980). Amici’s members are actively involved

in representing defendants in capital cases. The members of

both organizations have represented thousands of individuals

charged with capital crimes. Amici can therefore bring the

extensive experience of their members to bear on the issues

before this Court. Moreover, because the Virginia Supreme

Court’s decision conflicts with this Court’s precedents and

violates the Constitution, amici have an interest in having

that decision overturned.

NACDL and VACDL can bring an important perspective

to the issues before this Court and, for the foregoing reasons,

respectfully request leave to file the attached brief amici

curiae in support of the petition.

PAMELA HARRIS

CO-CHAIR, AMICUS COMMITTEE

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1625 I Street, NW, 10th FI.

Washington, D.C. 20006

(202) 383-5386

STEVEN BENJAMIN

PRESIDENT

VIRGINIA ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

P.O. Box 2452

Richmond, VA 23218

(804) 788-4444

Respectfully submitted,

DAVID W. DEBRUIN*

LORELIE S. MASTERS

VICTORIA H. JUEDS

JENNER & BLOCK LLP

601 Thirteenth Street, NW

Washington, D.C. 20005

(202) 639-6000

CHRISTOPHER V. PARENTE

JENNER & BLOCK LLP

One IBM Plaza

330 N. Wabash Avenue

Chicago, IL 6061 1

(312) 222-9350

Counsel for Amici Curiae

*Counsel of Record

November 17, 2004

I.

II.

Il.

IV.

1

TABLE OF CONTENTS

BECAUSE THERE ARE NO CLEAR OR

OBJECTIVE STANDARDS, VIRGINIA

JURIES AND JUDGES CAN FIND

“VILENESS” IN ALMOST ANY MURDER

CASE, LEADING TO ARBITRARY AND

CAPITA Gers Riise tics ennciishsdinetdvarusncedssavas 4

VIRGINIA PRESENTS A STARK

CONTRAST TO OTHER STATES WHICH

HAVE ALTERED THEIR DEATH-PENALTY

REGIMES TO COMPLY WITH THE

CONSTITUTIONAL STANDARDS SET

PPC IIE RW BOO CAE IN Fa dina vnsvnrichalasdnsensensiniaebiasainns 10

VIRGINIA’S DEATH-PENALTY SCHEME

SERIOUSLY BURDENS THE RIGHTS OF

CARTE AL, DF ROtU NAN Ei ascsaissscnnsncstancnpranaonncstaie 12

THIS CASE PRESENTS A GOOD VEHICLE

Pe RO carsctinitscsrcnceapuaiencoasianeaenamis 15

COIN BAIR i nssncshsnicnntornsisttiteniceisbitiiatalatabanibad eed ida 17

il

TABLE OF AUTHORITIES

CASES

Buchanan v. Kentucky, 483 U.S. 402 (1987) ...........:::0000 13

Bunch v. Commonwealth, 304 S.E.2d 271 (Va.

DGB) onccascossxssspscsescencessnssnsessiousnmebsenssssunsnsanseustensaibasaaanennelan 6

Edmonds v. Commonwealth, 329 S.E.2d 807 (Va

ADDY nssocsecssnsssneseceenscsnscsscseqnasuspnepeunnensucsssseabeeeuenaanenias 7

Elliot v. Commonwealth, 593 S.E.2d 270 (Va

DOB) arceccseccccsnsseserssesseesescenitontucsesanussiompaspeainnaalenaansiinn 6

Ford v. Georgia, 498 U.S. 411 (1991).......ccceceeeeeeeeeetees 16

Godfrey v. Georgia, 446 U.S. 420 (1980)..........0 passim

Green v. Commonwealth, 580 S.E.2d 834 (Va.

2003), cert. denied, 124 S. Ct. 1448 (2004)..............44. 7,9

Gregg v. Georgia, 428 U.S. 153 (1976).......cccsesseseeeees 2,4

Hudson v. Commonwealth, 590 S.E.2d 362 (Va.

BODE) «.ccceervsiscecesetscrncseessssecsnvasseesenmiasssseabnemnaninaiassnasianeninin 8

Jordan v. Watkins, 681 F.2d 1067 (Sth Cir. 1982) ........... 11

King v. Commonwealth, 570 S.E.2d 863 (Va. 2002)........ 15

Lockhart v. McCree, 476 U.S. 162 (1986)..........cc:ccceeeeee 13

Maynard v. Cartwright, 486 U.S. 356 (1988)............. 2, 4,6

NAACP v. Alabama, 357 U.S. 449 (1958) ........cccceeeseeeeeees 16

Poyner v. Commonwealth, 329 S.E.2d 815 (Va.

DBS) nnccrassinserncsscsscexssesiessneisinsesnanibinaateesiennesnapeaeheania 7,9

Reid v. Commonwealth, 506 S.E.2d 787 (Va. 1998) .......... 8

Richmond v. Lewis, 506 U.S. 40 (1992)..........ccccccceeeeeeeeeeees 4

ee

Shell v. Mississippi, 498 U.S. 1 (1990) ....cccccccccccceecceecceeee 11

Smith v. Commonwealth, 248 S.E.2d 135 (Va.

NESE SRE IN Pa Sr Ce Te a TA: 5,6

State v. Dicks, 615 S.W.2d 126 (Tenn. 1981) ...........c0000- 11

State v. Moeller, 548 N.W.2d 465 (S.D. 1996)......0....0000.. 1]

State v. Preston, 673 S.W.2d 1 (Mo. 1984) .......ccccccccceseeee 11

State v. Ramseur, 524 A.2d 188 (N.J. PIPEEE Srtsapslietnannanicians 11

State v. Wood, 648 P.2d 71 (Utah 1982)... cccccecceceeseees 11

Stewart v. Commonwealth, 427 S.E.2d 394 (Va.

FOP 1c dstvieniiehencadisialdaaicipaarheaceicecabianmon aces | 8,9

Stout v. Commonwealth, 376 S.E.2d 288 (Va.

FIED suc isibiaihilcniticbeicablaiahennibicts Denil citi et ot oe eS 8

Stuarts Draft Shopping Center, L.P. v. S-D

Associates, 468 S.E.2d 885 (Va. 1996)........ccccccccceeeeeee 15

United States v. Quinones, 313 F.3d 49 (2d Cir.

a ibtcinsiteliasiiaepiatiisnesaiceapiads ian ee oe LS 14

Wade v. Hunter, 336 U.S. 684 (1949)... occccccccceceseceseeees 15

Watkins v. Commonwealth, 331 S.E.2d 422 (Va.

IPI einiaiitiniletsninehinailcai idee oie rr tht) 13

Zant v. Stephens, 462 U.S. 862 (1983) .....cccccccccceeeeeee 2, 4,5

STATUTES

Ga. Code. §27-2534.1(b)(7) (1978) ou... ccccccccccsscesscesecescees 5

Va. Code. Ann § 8.01-384(A)....0...ccccccccceceeeeceseeeseceees 15

po i: Se ee eee 5

WM, CHUD PA. © TOG FO ssc cecsnccscccnsenotecosennnneses 13

iV

i I, BF FE sic ntntinsinessactnnctcdicisasintananin

i ee I Oe WI a casincscciscccindctniscibninrentascatene

MISCELLANEOUS

Douglas R. Banghart, A Quarter-Century of Death:

A Symposium on Capital Punishment in Virginia

Since Furman v. Georgia, 12 Cap. Def. J. 77

Is ee a ee ee

Samuel R. Gross, The Risks of Death: Why

Erroneous Convictions are Common in Capital

Cases, 44 Buffalo L. Rev. 469 (1996) ............0..00.....

Melissa A. Ray, ‘Meaningful Guidance’:

Reforming Virginia's Model Jury Instructions on

Vileness and Future Dangerousness, 13 Cap.

BE Fe Sey ee I dacncishncnsncnaipnnhonghiananhinsnisdnassimannee

Richard A. Rosen, The “Especially Heinous”

Aggravating Circumstance in Capital Cases —

The Standardless Standard, 64 N.C. L. Rev. 941

NU chucisaileshecsasnillaladiiinudisitanansicctasaubnadiimiemncnaiiainadansindain’

14

a a

No. 04-515

IN THE

Supreme Court of the Anited States

LARRY BILL ELLIOTT,

Petitioner,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Virginia

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AND THE VIRGINIA ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

The interest of amici curiae is set forth in the

accompanying Motion for Leave to File Brief Amici Curiae.'

' Pursuant to Supreme Court Rule 37.6, amici state that no counsel for a

party authored this brief in whole or in part and no person or entity, other

than amici, their members, or their counsel made a monetary contribution

to the preparation or submission of this brief.

2

REASONS FOR GRANTING THE WRIT

Almost thirty years ago, this Court raised questions about

the vagueness of the “vileness” aggravator in Georgia’s

death penalty scheme. See Gregg v. Georgia, 428 U.S. 153

(1976). Four years later, after the Georgia courts failed to

heed the Court’s concern, the Court invalidated a death

sentence, finding that the guidance given to the jury by

Georgia’s vileness aggravator did not “channel the

sentencer’s discretion by ‘clear and objective standards’ that

provide ‘specific and detailed guidance,’ and that ‘make

rationally reviewable the process for imposing a sentence of

death.” Godfrey v. Georgia, 446 U.S. 420, 428 (1980)

(plurality opinion) (footnote omitted). Since Godfrey, the

Court has repeatedly reaffirmed the principle that a state that

elects the death penalty has “‘a constitutional responsibility to

tailor and apply its law in a manner that avoids the arbitrary

and capricious infliction of the death penalty.” Jd.; see also

Maynard v. Cartwright, 486 U.S. 356, 363 (1988); Zant v.

Stephens, 462 U.S. 862, 877 & n.15 (1983).

Despite having a vileness aggravator virtually identical to

that at issue in Godfrey, the Commonwealth of Virginia has

repeatedly failed to narrow its breadth to conform to the

Eighth and Fourteenth Amendments and to this Court's

ruling in Godfrey. As a result, Virginia’s death-penalty

scheme does not provide, as required, a “principled way to

distinguish this case, in which the death penalty was

imposed, from the many cases where it was not.” 446 US.

at 433 (plurality opinion).

The result of Virginia’s refusal to narrow its vileness

aggravator is just what this Court predicted in Godfrey — a

system of arbitrary and capricious punishment, which allows

juries unbridled discretion to impose the ultimate penalty of

death in virtually every case. As a review of Virginia capital

3

cases shows (Part I infra), Virginia juries — unguided by

specific and definite instructions — can find vileness in any

murder case, regardless of its facts. And the Virginia

Supreme Court — applying contradictory and inconsistent

standards -- has never once overturned a finding of vileness.

Virginia’s refusal to comply with the Constitution and

this Court’s decisions is extraordinary, particularly when

compared to the many states that have responded to this

Court’s decision in Godfrey by narrowing analogous

aggravators and providing additional guidance to juries (Part

II infra). Virginia’s refusal to do what other states have done

threatens the due process nghts of criminal defendants in

Virginia and the public’s interest in the fair administration of

justice (Part III infra). Defendants charged with capital

murder in Virginia, facing death-qualified juries that are

more likely to convict than other juries and total uncertainty

as to the factors relevant to their sentencers’ determination

of “vileness,” may consequently forfeit their right to contest

their own innocence at trial.

Virginia’s death-penalty scheme clearly violates the

principles established in Godfrey and its progeny. This case

presents the issue squarely, and the Petitioner clearly raised

the issue at the trial court and in the Virginia Supreme Court

(Part IV infra). Amici request that the Court grant the writ

and direct Virginia, at long last, to comply with the

Constitution and this Court’s decisions. See S. Ct. R. 10(c)

(review is appropriate where “a state court has decided an

important question of federal law . . . in a way that conflicts

with relevant decisions of this Court’).

4

I. BECAUSE THERE ARE NO CLEAR OR

OBJECTIVE STANDARDS, VIRGINIA JURIES

AND JUDGES CAN FIND “VILENESS” IN

ALMOST ANY MURDER CASE, LEADING TO

ARBITRARY AND CAPRICIOUS RESULTS.

“{Where] discretion is afforded a sentencing body on a

matter so grave as the determination of whether a human life

should be taken or spared, that discretion must be suitably

directed and limited so as to minimize the risk of wholly

arbitrary and capricious action.” Gregg, 428 U.S. at 189. In

Godfrey, the Court held that an ambiguous instruction to the

jury — that it could impose the death penalty if the murder

was “outrageously or wantonly vile, horrible, or inhuman, in

that it involved torture, depravity of mind, or an aggravated”

battery” — was so vague that it would permit the jury to find

any murder to be “vile” and thus would result in the arbitrary

and capricious imposition of capital sentences. 446 US. at

422: see also Maynard, 486 U.S. at 363 (“A person of

ordinary sensibility could fairly characterize almost every

murder as ‘outrageously or wantonly vile, horrible and

inhuman.””’).

To avoid that unconstitutional result, an “aggravating

circumstance must genuinely narrow the class of persons

__ eligible for the death penalty and must reasonably justify the

imposition of a more severe sentence on the defendant

compared to others found guilty of murder.” Zant, 462 U.S.

at 877. Moreover, “{a] statutory aggravating factor is

unconstitutionally vague if it fails to furnish principled

guidance for the choice between death and a lesser penalty.”

Richmond v. Lewis, 506 U.S. 40, 46 (1992); see also

Maynard, 486 U.S. at 364.

The vileness aggravator used in Virginia is the same

vileness instruction used in Georgia prior to the Godfrey

5

decision. Compare Va. Code Ann. § 19.2-264.2 with Ga.

Code § 27-2534.1(b)(7) (1978). Since Godfrey, the Virginia

legislature and the Virginia Supreme Court have had

numerous opportunities to do what this Court required: to

amend the statute or to impose a limiting instruction for

juries that would “narrow([] the class of persons eligible for

the death penalty.” Zant, 462 U.S. at 877.

Unlike other states (Part II infra), however, neither the

judiciary nor the legislature in Virginia has complied with

the Court’s directive. Rather, Virginia has left its

unconstitutionally vague vileness aggravator in place, to be

applied by judges and juries across the Commonwealth

without clear and objective standards. See Godfrey, 446 U.S.

at 428. The only “clarifications” that the Virginia Supreme

Court has provided sentencers consist of the same inadequate

definitions of the terms “aggravated battery” and “depravity

of mind” that existed before Godfrey was decided.

According to the Virginia Supreme Court, an “aggravated

battery” is “a battery which, qualitatively and quantitatively,

is more culpable than the minimum necessary to accomplish

the act of murder.” Smith v. Commonwealth, 248 S.E.2d

135, 149 (Va. 1978). “Depravity of mind” is “a degree of

moral turpitude and psychical debasement surpassing that

inherent in the definition of ordinary legal malice and

premeditation.” /d.

Neither of these definitions gives any additional guidance

to juries or provides any principled basis for “distinguishing

the few cases in which [the penalty] is imposed from the

many in which it is not.” Godfrey, 446 U.S. at 427 (plurality

opinion) (internal quotation marks omitted; alteration in

original); see also Melissa A. Ray, ‘Meaningful Guidance’:

Reforming Virginia’s Model Jury Instructions on Vileness

and Future Dangerousness, 13 CaP. DEF. J. 85, 89 (2000).

6

Indeed, they provide no more guidance than the aggravator

invalidated in Maynard, which merely added the word

“especially” to an otherwise unconstitutionally vague

instruction. See 486 US. at 364.

The Virginia Supreme Court has made clear that it has no

intention of narrowing these terms further or providing

additional guidance to juries. In its view, the aforementioned

definitions “are the only constructions rationally related to

the commonly accepted connotation of the prefatory words

‘outrageously or wantonly vile, horrible or inhuman,”

Smith, 248 S.E.2d at 149. Moreover, in blatant disregard of

Godfrey and its progeny, the Virginia Supreme Court has

held that “‘it is not reversible error for a trial court to refuse to

define the statutory terms included in the aggravating

circumstances upon which a sentence of death may be

based.” Bunch v. Commonwealth, 304 S.E.2d 271, 285 (Va.

1983); see also Elliott v. Commonwealth, 593 S.E.2d 270,

289 n.9 (Va. 2004) (acknowledging that the Virginia

Supreme Court has never endorsed any jury instruction

limiting the “vileness” aggravator).

As the Court predicted in Godfrey, by refusing to provide

“specific and detailed guidance,” Virginia today maintains a

system under which all capital murders potentially meet the

vileness standard. See Douglas R. Banghart, A Quarter-

Century of Death: A Symposium on Capital Punishment in

Virginia Since Furman v. Georgia, 12 CaP. DEF. J. 77, 79,

89-90 (1999); Richard A. Rosen, The “Especially Heinous”

Aggravating Circumstance in Capital Cases — The

Standardless Standard, 64 N.C. L. REV. 941, 987-89 (1986).

Sentencers in Virginia have virtually unbridled discretion to

impose the death penalty in murder cases, and the Virginia

Supreme Court has never once overturned a finding of

vileness.

7

As shown by an examination of capital cases decided in

Virginia since Godfrey, it is impossible to derive any

principled boundaries on the Commonwealth’s vileness

aggravator. The Virginia Supreme Court has given such

elastic meaning to “aggravated battery” and “depraved

mind” that these categories act effectively as catch-alls,

sweeping within their potential scope almost any fact

scenario.

For example, one factor used by the Virginia Supreme

Court to determine vileness has been the number of bullets

fired. The Virginia Supreme Court has repeatedly found that

multiple gunshots are sufficient to support a finding of

“aggravated battery” and hence vileness justifying the death

penalty. See Green v. Commonwealth, 580 S.E.2d 834

(2003) (finding that multiple gunshots constituted

“aggravated battery’’), cert. denied, 124 S. Ct. 1448 (2004).

If multiple gunshots constitute “aggravated battery” and

therefore establish the vileness predicate, one might assume

that a single gunshot killing would not. Yet the Virginia

Supreme Court has also determined that crimes involving a

single gunshot can be “vile” if the victim sees the bullet

coming because this represents psychological torture and

therefore shows a “depraved mind.” See, e.g., Poyner v.

Commonwealth, 329 S.E.2d 815, 832 (Va. 1985).

Similarly, the Virginia Supreme Court has found that

murders involving suffering by the victim and murders in

which the victim dies immediately are both vile. If the

victim dies slowly, the suffering caused may constitute an

aggravated battery. See, e.g., Edmonds v. Commonwealth,

329 S.E.2d 807, 814 (Va. 1985) (finding aggravated battery

where defendant left “the victim to suffer an interval of

agony awaiting death, evinc[ing] a criminal animus more

culpable than that involved in a battery which causes sudden

8

death.”). If the victim dies instantly, however, it has been

found the crime involves a “depraved mind,” apparently

because such killings are “execution-style.” See, e.g.,

Stewart v. Commonwealth, 427 S.E.2d 394, 409 (Va. 1993)

(finding aggravated battery even though both victims died

instantly).

Other examples abound. In Virginia, multiple stab

wounds have been held to demonstrate “aggravated battery”

sufficient to meet the vileness predicate, see, e.g., Reid v.

Commonwealth, 506 S.E.2d 787, 792 (Va. 1998) (finding

that stabbing the victim many times sufficed for aggravated

battery), but so has a single stab wound because it

demonstrates killing in a “savage” and “methodical” manner.

See, e.g., Stout v. Commonwealth, 376 S.E.2d 288, 292 (Va.

1989) (finding one stab wound enough to establish

“agoravated battery”).

Indeed, the Virginia Supreme Court would likely find the

exact facts of the Godfrey case sufficient to support the death

penalty — despite contrary instruction from this Court. And

given the elasticity of Virginia’s vileness aggravator, it could

do so on any number of different grounds. Under Virginia

Supreme Court precedent, the fact that Godfrey killed his

victims with a shotgun would be sufficient, without more, to

justify the death penalty. See, e.g., Hudson v.

Commonwealth, 590 S.E.2d 362, 364 (Va. 2004) (upholding

vileness finding due to the “maximum damage” the shotgun

pellets caused the victims). The Godfrey Court, on the other

hand, expressly noted that “it is constitutionally irrelevant

that the petitioner used a shotgun instead of a rifle as the

murder weapon, resulting in a gruesome spectacle.” 446 USS.

at 433 n.16.

The Virginia Supreme Court also could rely, if it chose,

on the fact that Godfrey killed his wife first, then entered the

9

trailer and killed his mother-in-law. Under Virginia law, the

few seconds of anticipation the mother-in-law felt while

Godfrey entered the trailer and reloaded his gun could have

been “psychological torture” sufficient for a finding of

vileness. See, e.g., Poyner, 329 S.E.2d at 832 (victim seeing

the gun and defendant letting victim see his face established

“psychological torture”). But the Godfrey plurality did not

even discuss this factor and “the trial judge, the prosecutor,

and the jury did not believe that the evidence showed: that

either victim was tortured.” 446 U.S. at 434 (Marshall, J.,

concurring).

Finally, because Godfrey killed his wife in front of his

mother-in-law and his eleven-year-old daughter, the Virginia

Supreme Court could find such a crime reflecting a

“depravity of mind.” See, e.g., Green, 580 S.E.2d at 848

(finding “depravity of mind” because victim was shot “in

front of her husband”). In contrast, this Court found that this

circumstance “cannot be said to have reflected a

consciousness materially more ‘depraved’ than that of any

person guilty of murder.” Godfrey, 446 U.S. at 433.

Indeed, in a case with facts very similar to Godfrey, a

defendant was sentenced to death after a jury found the

vileness aggravator to apply. The key distinction the

Virginia Supreme Court found between that case and

Godfrey was that the victims were shot from close range,

which, in its view, was sufficient to show depravity of mind.

See Stewart, 427 S.E.2d at 409.

This partial rendition of death-penalty cases in Virginia

illustrates what this Court forewarned in Godfrey — where

there is a lack of clear and objective standards, every murder

becomes eligible for the death penalty, and the unbridled

discretion given to sentencers leads to arbitrary and

capricious results in violation of the Eighth and Fourteenth

10

Amendments. The Court should grant the writ in this case to

address Virginia’s refusal to comply with constitutional

norms and to invalidate, once again, a death sentence based

on the vague vileness aggravator that it found

unconstitutional twenty-four years ago.

Il. VIRGINIA PRESENTS A STARK CONTRAST

TO OTHER STATES WHICH HAVE ALTERED

THEIR DEATH-PENALTY REGIMES TO

COMPLY WITH THE CONSTITUTIONAL

STANDARDS SET FORTH IN GODFREY.

The Commonwealth of Virginia stands in stark contrast

to other states across the country, which — in response to the

Court’s series of holdings requiring implementation of “clear

and objective” standards for sentencers — have modified their

vileness aggravators in an attempt to satisfy the requirements

of the Constitution. Indeed, the Petition in this case

understates the extent to which Virginia is out of step.

As explained in the Petition, jurisdictions in which

assessment of the death penalty may be premised on an

aggravating factor that incorporates the language found

unacceptable in Godfrey have — with the sole exception of

Virginia — limited the reach of that factor through one means

or another. See Pet. at 17-19. For example, the New Jersey

Supreme Court has undertaken to narrow “outrageously or

wantonly vile, horrible or inhuman in that [they] involved

torture, depravity of mind, or an aggravated assault to the

victim.” The aggravator is now understood to include only

those murders that were not the “product of greed, envy,

revenge, or another of those emotions ordinarily associated

with murder, and served no purpose for the defendant

beyond his pleasure of killing,” or in which “the defendant

intended to cause, and did in fact cause, severe physical or

psychological pain or suffering to the victim prior to the

11

victim’s death.” State v. Ramseur, 524 A.2d 188, 231 (N.J.

1987). Similarly, under the battery prong of South Dakota’s

“vileness” factor, that state’s highest court has required a

“specific intention, design or purpose of maliciously

inflicting unnecessary pain” and “infliction of serious

physical abuse upon the victim by depriving him of a

member of his body, or by rendering a member of his body

useless, or by seriously disfiguring his body or a me*nber

thereof.” State v. Moeller, 548 N.W.2d 465, 490-91 (S.D.

1996); see also State v. Preston, 673 S.W.2d 1, 5 (Mo. 1984)

' (limiting construction of “depravity of mind . . . outrageously

or wantonly vile, horrible or inhuman’’).

In other states with similarly vague aggravators, the

courts, citing Godfrey, have either invalidated sentencing

schemes outright or responded to this Court’s direction by

imposing a limiting construction. See, e.g., Jordan v.

Watkins, 681 F.2d 1067, 1082 (Sth Cir. 1982) (invalidating

“death sentence . . . imposed under guidelines that provided

even less guidance to the jury in exercising its sentencing

discretion than did those held unconstitutional in Godfrey’);

State v. Dicks, 615 S.W.2d 126, 132 (Tenn. 1981)

(narrowing a statutory aggravator which assesses how

“heinous, atrocious or cruel” was the murder committed by

defendant); State v. Wood, 648 P.2d 71, 85 (Utah 1982)

(holding that consideration of “the ruthlessness and brutality

of the murder” — a factor which was “essentially the same”

as that on which the faulty death sentence in Godfrey had

been based — was unconstitutional) (internal quotation marks

omitted); see also Shell v. Mississippi, 498 U.S. 1, 1 (1990)

(per curiam) (reversing decision of Mississippi Supreme

Court to the extent that it affirmed a death sentence based on

the aggravating factor of being “especially heinous, atrocious

or cruel,” without a constitutionally sufficient limiting

instruction).

12

Although amici do not concede that these systems are

constitutionally sufficient in all respects, they sharply

contrast with Virginia’s utter failure to act in response to this

Court’s rulings. The Commonwealth’s anomalous

position — not to mention its disregard for well-established

Eighth Amendment law and this Court’s precedents -—

demands this Court’s attention.

Ill. VIRGINIA’S DEATH-PENALTY SCHEME

SERIOUSLY BURDENS THE RIGHTS OF

CAPITAL DEFENDANTS.

Amici, representing counsel for capital defendants across

the country and particularly in Virginia, have first-hand

knowledge of the practical impact of Virginia’s vileness

aggravator on the ability of capital defendants to obtain a fair

hearing on all issues of guilt and sentencing. As discussed

below, Virginia’s current death-penalty scheme unfairly

influences the strategic choices defendants make in their

efforts to avoid the unjust imposition of the death penalty.

As such, the unconstitutionally vague vileness aggravator

burdens the constitutional mghts of defendants and

contravenes the public interest in the full and fair

adjudication of criminal cases.

First and most fundamentally, as discussed supra Part I,

the aggravator as currently phrased could be understood to

comprehend all cases of murder; thus, it sweeps in even

those defendants who should be ineligible for capital

punishment under this Court’s jurisprudence. Moreover, the

vagueness of the vileness aggravator results in widespread

sentencing disparities within Virginia, just the sort of

arbitrary and capricious result this Court has feared. Indeed,

a state-sponsored study has shown that the factor most

relevant to the application of the death penalty throughout

the Commonwealth is the geographic location of the crime,

13

demonstrating that the choices of prosecutors and the

character of the jury pool — not principled guidance from the

statute or courts — determine who gets the death penalty. See

Joint Legislative Audit and Review Commission of the

Virginia General Assembly, Review of Virginia’s System of

Capital Punishment (2001) at 43 (“The location of the

offense has the strongest effect on the probability that a

person who commits a capital-eligible offense will face the

possibility of the death penalty.”’).

Second, defendants in Virginia who are not properly

eligible for the death penalty under Godfrey face juries that

are more likely to convict than the average jury panel.

Because it is constitutionally permissible for a court to

exclude from capital juries those potential jurors who

maintain an absolute objection to the death penalty, see

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

Virginia state law provides for the use of the same jury in

both the guilt and sentencing phases of a capital trial, see Va.

Code Ann. § 19.2-264.3(C); Watkins v. Commonwealth, 331

S.E.2d 422, 431 (Va. 1985), individuals against whom the

state plans to seek the death penalty face “death-qualified”

juries not only during the sentencing phase of their trials, but

at the guilt phase as well. Although facing a death-qualified

jury at the guilt phase may not, by itself, violate the

Constitution, see, e.g., Buchanan v. Kentucky, 483 U.S. 402

(1987), substantial evidence shows that such juries are more

likely to convict than non-death qualified juries. See Samuel

R. Gross, The Risks of Death: Why Erroneous Convictions

are Common in Capital Cases, 44 BUFFALO L. REV. 469, 494

n.109 (1996) (citing studies). Defendants in Virginia should

not be so prejudiced because of the Commonwealth’s

recalcitrance in providing adequate standards for imposition

of the death penalty.

14

Third, the all-encompassing nature of Virginia’s vileness

aggravator places no manageable limits on evidence

admissible at the sentencing phase. Pursuant to Virginia

state law, at the sentencing phase of a capital trial, “evidence

may be presented as to any matter which the court deems

relevant to sentence.” Va. Code Ann. § 19.2-264.4. Because

any capital murder might be considered “vile” for any

number of reasons under Virginia’s undifferentiated

standard, an overwhelming range of evidence could be

deemed relevant to the sentence. Defense counsel in capital

cases have no guidance in preparing the substance of their

defense during the sentencing phase. Virginia law requires

the state to give a defendant notice only of its intention “to

introduce . . . evidence of defendant’s unadjudicated criminal

conduct.” Jd. § 19.2-264.3:2. As the state is under no

obligation to inform the defendant of other evidence to be

adduced at sentencing, and because almost anything could be

relevant to a determination of vileness under Virginia’s

death-penalty regime, the defense may be critically

disadvantaged in its preparation of rebuttal evidence.

Fourth, the wide sweep of the vileness aggravator

undoubtedly forces many defendants in Virginia — whether

or not they are properly eligible for the death penalty

pursuant to Godfrey — to forfeit their right to contest their

innocence at trial. Defendants may naturally fear going to

trial, even where they have a meritorious claim of innocence,

because of the threat of an unwarranted death sentence. It

can hardly be doubted that the prospect of execution

constitutes a major disincentive for a defendant to challenge

his guilt, at least where he is able to opt out of the process.

See, e.g., United States v. Quinones, 313 F.3d 49, 59 (2d Cir.

2002). Moreover, “if the death penalty remains a possibility

during trial, a defendant may be forced into trial tactics that

PO LR IORI RIN PO Ne 1 ED

15

are designed to avoid the death penalty but that have the

consequence of making conviction more likely.” Jd.

In each of these ways, Virginia’s vague death-penalty

scheme undermines not only the full and fair adjudication of

criminal matters and contravenes not only defendants’ rights

but also the public’s interest in fair proceedings for all

citizens. See Wade v. Hunter, 336 U.S. 684, 689 (1949)

(recognizing the “public[] interest in fair trials designed to

end in just judgments”).

IV. THIS CASE PRESENTS A GOOD VEHICLE

FOR REVIEW.

Amici agree that Petitioner fully and adequately raised

his objections in the courts below. Under Virginia law, “[n]o

party, after having made an objection or motion known to the

court, shall be required to make such objection or motion

again in order to preserve his right to appeal, challenge, or

move for reconsideration of, a ruling, order, or action of the

court.” Va. Code Ann. § 8.01-384(A). The Virginia courts

have stated in the past that “motions made before, during,

and after the trial clearly preserve[] this issue for appeal.”

Stuarts Draft Shopping Center, L.P. v. S-D Associates, 468

S.E.2d 885, 888 n.1 (Va. 1996).

The pretrial motion made by Petitioner and ruled on by

the trial court thus preserves the issue for appeal. As the

Virginia Supreme Court has noted, “(t]he undeniable

purpose of Code § 8.01-384(A) is to relieve counsel of the

burden of making repeated further objections to each

subsequent action of the trial court that applies or

implements a prior ruling to which an objection has already

been noted.” King v. Commonwealth, 570 S.E.2d 863, 866

(Va. 2002). Since the trial court had already ruled on

Petitioner’s motion regarding the constitutional infirmity of

16

the vagueness aggravator, no “subsequent action” on his part

was required.

The Virginia Supreme Court’s new ruie requiring repeat

objections is novel and also fails to serve any legitimate state

purpose. Requiring a defendant to renew, after a mistrial, a

pretrial motion that had previously been denied is by no

means “a firmly established and regularly followed state

practice” that may justify denial of “subsequent review by

this Court of a federal constitutional claim.” Ford v.

Georgia, 498 U.S. 411, 423-24 (1991). Because the ruling

by the Virginia Supreme Court on this issue was, at best, a

novel procedural rule, it “cannot bar federal review of

constitutional claims that have been plainly and reasonably

raised.” See, e.g., NAACP v. Alabama, 357 U.S. 449, 457

(1958) (holding that “[njovelty in procedural requirements

cannot be permitted to thwart review in this Court applied

for by those who, in justified reliance upon prior decisions,

seek vindication in state courts of their federal constitutional

rights.”).

17

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

PAMELA HARRIS DAVID W. DEBRUIN*

Co-CHAIR, AMICUS COMMITTEE LORELIE S. MASTERS

NATIONAL ASSOCIATION OF VICTORIA H. JUEDS

CRIMINAL DEFENSE LAWYERS JENNER & BLOCK LLP

1625 I Street, NW, 10th FI. 601 Thirteenth Street, NW

Washington, D.C. 20006 Washington, D.C. 20005

(202) 383-5386 (202) 639-6000

STEVEN BENJAMIN CHRISTOPHER V. PARENTE

PRESIDENT JENNER & BLOCK LLP

VIRGINIA ASSOCIATION OF One IBM PLaza

CRIMINAL DEFENSE LAWYERS 330 N. Wabash Avenue

P.O. Box 2452 Chicago, IL 60611

Richmond, VA 23218 (312) 222-9350

(804) 788-4444

Counsel for Amici Curiae

*Counsel of Record

November 17, 2004