Amicus Curiae Brief — Holmes v. Louisiana (No. 08-1358)

MOTION FILED

JUN 4 - 2009 ( SS)

IN THE

Supreme Court of the United States

BRANDY AILEEN HOLMES,

Petitioner,

vV.

STATE OF LOUISIANA,

Respondent.

On Petition For A Writ Of Certiorari To

The Louisiana Supreme Court

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF FOR THE CONSTITUTION

PROJECT AS AMICUS CURIAE

IN SUPPORT OF GRANT

OF CERTIORARI

ANDREW G. HORNE

Counsel of Record

KEVIN N. MALEK

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, New York 10022

June 4, 2009

WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States

No. 08-1358

BRANDY AILEEN HOLMES,

Petitioner,

Vv.

STATE OF LOUISIANA,

Respondent.

On Petition For A Writ Of Certiorari To

The Loutsiana Supreme Court

MOTION FOR LEAVE TO FILE

AN AMICUS CURIAE BRIEF

Pursuant to Rule 37.2 of the Rules of this Court,

the Constitution Project moves for leave to file the

accompanying brief as amicus curiae in support of the

petition for a writ of certiorari. Counsel for petitioner

has consented to the filing of this brief, but counsel for

respondent has refused to consent.

Under Article 905.9 of the Louisiana Code of

Criminal Procedure, the Louisiana Supreme Court

must review every death sentence to determine if it is

2

excessive. That court’s rules require it to review each

death sentence for arbitrariness and to consider

whether the sentence is disproportionate to the

penalty imposed 1n similar cases, considering both the

crime and defendant. In recent years, however, the

state court has repeatedly failed to comply with that

mandate. In particular, as in Ms. Holmes’s case, the

court has repeatedly failed to conduct an adequate

proportionality review, comparing only the facts of a

crime to the facts of other capital cases, while

disregarding defendant’s mitigating circumstances.

The Louisiana Supreme Court’s failure to conduct a

meaningful and vigorous review of mitigation violates

the Eighth Amendment to the United States

Constitution.

Amicus curiae is a bipartisan non _ profit

organization that seeks solutions to constitutional

issues through scholarship and public education.

Although the Constitution Project takes no position on

capital punishment, it is deeply concerned with the

preservation of our fundamental civil rights, including

our Eighth Amendment right to be free from the

arbitrary, capricious, and discriminatory imposition of

the death penalty. In 2000, the Project convened a

blue-ribbon committee to evaluate current procedural

safeguards. The committee was comprised of a broad

spectrum of individuals with extensive experience with

the criminal justice system and included both

supporters and opponents of capital punishment.

After conducting a careful and considered evaluation of

the various death penalty systems in this country, the

committee concluded that there are currently

insufficient protections in place to ensure fundamental

fairness. Among other things, the committee

3

emphasized the need for states to adopt meaningful

appellate review of death sentences, including

adopting proportionality review mechanisms.

Amicus curiae’s extensive knowledge of the

appellate review procedures in place in this country

and its goal of helping to ensure the protection of our

civil rights gives it a strong interest in the resolution

of the question raised by the petitioner in this case.

Accordingly, amicus curiae respectfully requests leave

to file the attached brief that describes in detail those

appellate procedures and why the Louisiana Supreme

Court’s approach is inconsistent with not only its own

state law scheme but also with the requirements of the

Eighth Amendment.

Respectfully submitted,

Andrew G. Horne

Counsel of Record

Kevin N. Malek

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, New York 10022

Counsel for Amicus Curiae

The Constitution Project

June 4, 2009

U

TABLE OF CONTENTS

STATEMENT OF INTEREST 2

SUMMARY OF THE ARGUMENT 4

ARGUMENT 5

I. MEANINGFUL APPELLATE

REVIEW OF MITIGATION IS

REQUIRED TO GUARD AGAINST

THE ARBITRARY AND

CAPRICIOUS ADMINISTRATION

OF THE DEATH PENALTY. )

I]. THE LOUISIANA SUPREME COURT

IS FAILING TO CONDUCT A

MEANINGFUL APPELLATE

REVIEW OF MITIGATING

EVIDENCE. 14

CONCLUSION 22

APPENDIX I: DEATH PENALTY

APPELLATE REVIEW

PROCEDURES a-1

LL

TABLE OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman,

ee ee ED dasa nvsnccssccavsievisseveseccecaiveuns 6

Allen v. State,

636 So. 2d 494 (Fla. 1994)........000 eee 9,11

Amoros v. State,

Se Re Bb 2 ey ae | nr ere 9

Atkins v. Virginia,

Be Sr Be GE) hs vnctvicdicenscsccncevtdervesscessevnan 17

Besaraba v. State,

656 So. 2d 441 (Fla. 1995) .....................000. 9,11

Biondi v. State,

699 P.2d 1062 (Nev. 1985) ..................c cece, 10

Blair v. State,

ta, Se TAGS Ci am, BB) ivi ce cccccsvcvcsscviveecus 9

Blakely v. State,

662 Bo. Ba GSO CE im. LOO) cvcessccnencvcscecsvercsvcsces: 9

Bullock v. State,

525 So. 2d 764 (Miss. 1987)..................... 10, 13

Caruthers v. State,

465 Bo. Za GOS Chim. LOGS) voce cccccvccccecccseccecssasces 9

lil

Chaky v. State,

ee Cos BOE LEG CHIR, LOD cos cscccccccccccscccccccesces 9

Chambers v. State,

Be Fe te COG, LOGE ccc ccccnescoseccccevovcocvancs 13

Clark v. State,

609 So. 2d 513 (Fla. 1992)............. SEP e 9,11

Clemons v. Mississippi,

ED vsusscesishcsnbvecsivsdancsurseeceacess 6

Coleman v. State,

1G OO, SE SEO CAISS. 1978).......ccceccrcccccercsecses 10

DeAngelo v. State,

BLS BO. Bee SEO CHIR. LORS) o...sccccesecccccscescces 9,12

Eddings v. Oklahoma,

EE ID IED... ce cvnueeonvesnacserasensencesdwares 7

Edwards v. State,

GAT BO, Be SE. CIGISS. LOBS).... .ccccccecscccccccess 10, 12

Farinas v. State,

ER Ee AG GS ot) Q

Furman v. Georgia,

SR I OEE nua ccacysncecvecssevocasuasvsncenesacas 3

Carron v. State,

NB a | rr Q

Gregg v. Georgia,

— $i h Bh. Ge. 5) | Finn inneresne

Hall v. State,

BOG Bk Be CEFR. LOTS) occ cccccscccevascccsesss 9,12

Harvey v. State,

or eee Re eh” | ie 10, 12

Haynes v. State,

739 P.2d 497 (Nev. 1987) ......... BM Ae 10, 12

Hazen v. State,

TO Os Bk LOE CHIR. DRED occ cccsvncesccsccesacs 9,12

Henry v. State,

G47 S.W.2d 419 (Ark. 19GB) .......cccccsccccsossessses: 9

Herzog v. State,

BBO BO. 2G LS72 CHIR. LOSS) ncoccesccccscccccisses 9,12

Johnson v. State,

Fae EO, Ge Be CE Is ROD vieivddessvcxesvescccutunccsses 9

Jones v. State,

ee ee, RU FIP ns ccnicc ontsasvccasscocncesncos 9

Jurek v. Texas,

i ON ooo cccacascanussnnasedcnwevndbanevvass 5

Klokoc v. State,

589 So. 2d 219 (Fla. 1991).......... ‘ides dauenaianiacee 11

Knowles v. State,

632 So. 2d 62 (Fla. 1993)...... EAR De 9,12

Kramer v. State,

619 So. 2d 274 (Fla. 1993).................. os Ba 9 12

Livingston v. State,

565 So. 2d 1288 (Fla. 1988) ...................06 9,12

Lloyd v. State,

ee OO. Ce Oe CT. LED oknsovccecssccaccssteversranes 9

McCaskill v. State,

GE TOG. Bee BO COR. LE FD vice ccccencesecccdeccdcvasvas 9

McKinney v. State,

Te OO. SE CIR. LOD) vsisescvcscisssisiscireases 9,12

McKoy v. North Carolina,

SOG C5 es ee CD 65 cksssekssersantvisnnionieninanee 6

Morgan v. State,

GOO BG. We Oe. 1ODO) vives iscsi ccissoccdcan 9,12

Munn v. State,

658 P.2d 482 (Okla. Crim. App. 1983).... 10, 12

Nibert v. State,

674 Bo. Za VOGT CH is VOD) visvcccecacscoscecovens 9,12

Parker v. Dugger,

Ee Se: Se CREED dadsnerdsss cts eres nenne €

Penn v. State,

74 eG. SE DT CP es BED vocicstevavarincevessctase 9

Penry v. Lynaugh

492 U.S. 302 (1989) ......... skacwpedveresensbaweunens tee

People v. Buggs,

493 N.©.20 33Z (1. LOSE) ........ccccccceccsecscececes 10

People v. Carlson,

404 N.E.2d 233 (Ill. 1980)

People v. Gleckler,

411 N.E.2d 849 (Ill. 1980)

People v. Johnson,

538 N.E.2d 1118 (Ill. 1980)

People v. Leger,

597 N.E.2d 586 (Ill. 1992) ...................... 14, a-3

Proffitt v. Florida,

A2ZB U.S. 242 (1976) oo.cccccccccccseecsccessecssevssessseesee $

Proffitt v. State,

510 So. 2d 896 (Fla. 1987)..................csccccceccoees §

Puccio v. State,

701 S0. 2d BES CP la. 1997) .....cccccccsccccccsseces 9.

Reddix v. State,

547 So. 2d 792 (Miss. 1989).................... 10.

Rembert v. State,

445 So. 2d 337 (Fla. 1984)...............ccccsccccccccess )

Robertson v. State

699 So. 2d 1343 (Fla. 1997)....................... 9,

Roper v. Simmons,

543 U.S. 551 (2005)

Ross v. State,

474 So. 2d 1170 (Fla

VUL

Santos v. State,

SIP BO. SE SOS CHI. LODE) ovccccccecccecccesccesccscccovs )

Sinclair v. State,

657 So. 2G 1136 (Pim. LEBB)......cccccesccccvess. 8, a-]

Slater v. State,

SIG So. 2a GSS CRIM. LOTS)....ccccccccccccccccesees 9 12

Smalley v. State,

646 So. Ba TZO (Him. LOSS)... .ccccoccccersccscccse: 9, 1

iw

Songer v. State,

544 So. 2d 1010 (Fla. 1989)................0...... ©. ii

bh

State v. Benson,

yo ge 8 8 E5y gi, £8 ere 10,13

State v. Bocharski,

189 P.3d 403 (Ariz. 2008) ..........ccccccccccccsccccces 13

State v. Bondurant,

Se cee TOD CEG, NUCIED vec cccoccccececcscace 10,13

State v. Chaney,

CGT Be Wee ST GR BOD vscsicecvsccsacacctcccccasics 1]

State v. Claytor,

B74 NB. Be: S7E Oph LGB) oc ccccccccccceccccccccccss 14

State v. DiF risco,

ee ee I a I nd ak scccacobucaceusns 10

State v. Draughn,

Se et, Ge Oe CE, BI FD vce caccccncccdcvecteavecsesces L5

State

State

State

State

State

State

State

State

State

State

State

State

VLLL

v. Fierro,

804 P.2d 72 (Ariz. 1990)...............eeceeee 9,11,13

v. Hale,

840 S.W.2d 307 (Tenn. 1992)...................000. LO

v. Hill,

LS BS. . 1G CIN... TEBE) cccccccccccccccccscccss ay

v. Holmes,

rr rr ro ccesebeeucsaabeen 16

v. Irish,

807 So. 2d 208 (La. 2002) OO ee

v. Jackson,

305 S.E.2d 703 (N.C. 1983)..... fies Joa

v. Kemmerlin,

yp a8 & Boy Ba 8 oe i rr _10

v. Lacaze,

Be Bic, Del BOG (1M, DOOD onccccccccccecoscccccecccesces 15

v. Lafferty,

20 P.3d 342 (Utah 2001)...........ccccscsscereveee Oy AS

v. Mcllvoy,

629 S.W.2d 333 (Mo. 1982) ............scccccee 1O, 13

v. Moore,

hy Bm Rive Fe Sie, ee a-4

v. Papasavvuas,

“or &, fi Fm |: ) Re nneee 10, 13

State v. Pratt,

873 P.2d 800 (Idaho 1993 )..........ccccsccccccscccsees LO

State v. Rogers,

Pe Meee FAG Cae ste BUI) ccnvcccccdesccccssccocseces 10

State v. Roque,

141 P.3G SES (Aris. ZOOG) ......cccccccccccccccccccccece LG

State v. Scroggins,

716 P.2e 11GS CGaNO 1LEBB)....ccccccccccccccccocccces 10

State v. Smith,

400 Ho. 2d BET CLM. LGB) oc ccccoccscccccescoccccsceces 15

State v. Sonnier,

GO eee 10, 15, 17

State v. Stokes,

BOS BF. GOS (N.C, 1687) cccoccescccccocsccssescccs LO

State v. Thompson,

No. E2005-01790-CCA-R3-DD,

2007 WL 1217233

(Tenn. Crim. App. April 25, 2007) ................ 10

State v. Weiland,

505 So. 2d 702 (La. 1987)........ at ee 15

State v. Windsor,

716 P.2d 1182 (Idaho 1985)......................000. 10

State v. Young,

ee ee OEE CEU Ase REID ccecccuccveccdecsvscsesvccs 10

Sumlin v. State,

OR te ee EI, FIED eekccacciccccoecacdcccoccess 9

Tennard v. Dretke,

2 ORR ee Fo) |”) eS Ee ee eee 6

Terry v. State,

GES SO. BA SG4 CE im. 1996) 0... .ccccicccccccscsccvcssese 9

Tillman v. State,

ee ne I UT OR, IPE cece cnsccccicccdsenccsocenes 9

United States v. Curtis,

ee a. ee EER: BI ora cccicivnvedevessnesss aoe GO

Walker v. Georgia,

Ds as Me ID asivcdcdinesdcecaveensrnconsecanecnenken 6

Ward v. State,

a BOE a Bo ES Ly iy 5 re ene y

White v. State,

eB ae) ye ener 9,13

Williams v. State,

TOT TO. Be GES CEI. LGD anes cscs eccc nce cccscssccasescs 9

Wilson v. State,

ee, ee RO ae, RD oon cc cc cccscccccscccceccesns y)

Woods v. State,

Tad CO. 2 GOO CHIR, LIBS) .n....sccccoascccccccsses 9,13

Woodson v. North Carolina,

re II os oo:dnuvdcosvasecnncedaveccusaseapneuweus 6

Zant v. Stephens,

ee I Ds cnsinssscccstcdnnsaccccncconestdcuaansacs D

x

Statutes

Be i I beictisiv dacedGaivivnindceudecsaistaeetireemenicenn a-5

PN, Ms NE eh is ncn csiinchaenccdueseceddsevonraesccuetovcen 13

GS FO, TOUR. ORE. FAIR. BE EE occ creiscconcsscectsosacsscenes a-4

Fe I, NS ohn scenccncnesnvensissnaswsecurwaanes a-3

BT, SA a I aivicescecacessacesncnsdecansvesenssectscusne 8, a-1

Aris. Mev. Stat. Ann. $13-703.06 .........:.ccccssvecseessees a-2

Pete. Se AR. BB -S IG aici cccncsesesccdscsscseccecsessccess a-4

ee, I I ia aovenieca cen snxedawksdensescodieveent a-4

eR, SME, BO, Be at LE sav oicccsevesencsccavensvascosvevs a-3

Conn. Gen. Stat. Ann. §53a-46)D .................cccceceesees a-4

Dei. Code Ann. Titte 11 G4208 ...........cccceecesccccccos 8, a-1

RE Be Re ae | iS. |, eee ene 8, a-1l

RU CN FANG, Be Oo vsdenicciandeusccccncaxceemsescoceades a-4

ape, Ce FAB). BO vk nvcsosncicscine ceacensnsscsvensossene a-3

PRR, TUG, FARR eT cas avin pistons cxcuscanpererakbeensens a-3

Pa. BROW. SHCAE. ATUL. BAN 1 Oo oss cescscvesescevccnsasses 8, a-l

La. Code Crim. Proc. Ann. art. 905.5 ............0....00.« 19

La. Code Crim. Proc. Ann. art. 905.9........... 8, 15, a-1

Ram, eR A I Be a vsavntinccinntadiscscenionciderasemraatee 15, 16

Md Code Ann., Crim. Law §2-401 ......................222. a-3

Miss. Code Ann. §99-19-108 ...........cccecccoccocscegeese 8, a-l

DEO.. Amim. TORE. BGG vvivivsccssnenerscnsonsessnavacerarnens 8, a-l

Mont. Code Ann. §46-18-310 ..................cscecesecees 8, a-1

PG 6S, Ca OR. > Pe on vn detcencncccecasececetveraene 8, a-2

N.H. Rev. Stat. Arm. § GSO:GUAD) onc iscccccsvenesceess 8, a-1

eh RFA ek Be oi inant k cst a-6

POOR. SEGE. Ale. BSI oosecvisenineriiccemennen a-6

BW. Ke. PE, Er Fe wk scenes seeccccancaasnbacaenal a-6

Nob. Fooy. Sete. SEO ie 58 ines case cnvcsescsnencesaeerata 8, a-]

Nav. Bev. TR SF Fe ates ste coniniessesniemseenas a-2

Ohio Rev.-Code Ann. §2929.05 ..............ccececeee eens 8, a-2

S.C. Ge PAI, BA wacins secicrecsiscrocecaccasscnee 8, a-2

S.D. Codified Laws §23A-27A-12..............:.eceeees 8, a-2

Teram. Code Avni. SOR 13 Becca cseccnsecsccenssesssensns 8, a-2

Tex. Code Crim. Proc. art. 44.251 ....:50060.0:scccenecescse MD

Va. Coe S B74 ikke 8, a-2

Wash. Rev. Code Ann. §10.95.130...................8. 8, a-2

ES ES a-4

Other Authorities

Alison Niccols, Fetal Alcohol Syndrome and

the Developing Socio-emotional Brain,

65 BRAIN AND COGNITION 135 (2007)............. 19

American Psychiatric Ass’n, Position

Statement, Diminished Responsibility

in Capital Sentencing (2004),

http://www.psych.org/Departments/ED

U/Library/APAOfficial DocumentsandRe

lated/PositionStatements/200406.aspx ........ 17

Ann P. Streissguth et al., UNDERSTANDING THE

OCCURRENCE OF SECONDARY

DISABILITIES IN CLIENTS WITH FETAL

ALCOHOL SYNDROME (FAS) AND FETAL

ALCOHOL EFFECTS (FAE), FINAL REPORT

TO THE CENTERS FOR DISEASE CONTROL

AND PREVENTION (CDC) (University of

Washington, Fetal Alcohol & Drug

Unit, Tech. Rep. No. 96-06 1996).................. 20

Caron Byrne, The Criminalization of Fetal

Alcohol Syndrome (2002), available at

http://depts.washington.

edu/fadu/legalissues/CFAS. pdf ..................... 20

Christie L. McGee and Edward P. Riley, Brain

Imaging and Fetal Alcohol Spectrum

Disorders, 42 ANN 1ST SUPER SANITA 46

si ccnevceesaces “he 18

xiv

Christopher Slobogin, Minding Justice: Laws

that Deprive People With Mental

Disability of Life and Liberty (Harvard

University Press (2006)

Diagnostic and Statistical Manual of Mental

Disorders (Am. Psychiatric Ass'n. ed.,

4th ed., Text Rev. 2000)

From Neurons to Neighborhoods: The Science

of Early Childhood Development (Nat'l

Research Council et al. eds., 2000)

K. Brady et al., Comorbidity of Psychiatric

Disorders and Posttraumatic Stress

Disorder, 61 J. CLINICAL PSYCHIATRY 22

(2000)

Ronald Kessler, Posttraumatic Stress

Disorder: The Burden to the Individual

and to Society, 61 J. CLINICAL

PSYCHIATRY (Supp. 5) 4 (2000)

Sandra W. Jacobson, et al., Maternal Age,

Alcohol Abuse History, and Quality of

Parenting as Moderators of the Effects

of Prenatal Alcohol Exposure on

7.5-year Intellectual Function,

ALCOHOLISM: CLINICAL &

EXPERIMENTAL RESEARCH (2004)

Soloman, S. & Davidson, J. Trauma:

Prevalence, Impairment and Service,

Use, and Cost, 58 J. CLINICAL

PSYCHIATRY (Supp. 9) 5 (1997) ...............s0see0 21

XU

Symposium, Mental Illness and the Death

Penalty in North Carolina: A Diagnostic

Approach (2006), available at

http://www.charlottelaw.org/downloads/

community/MI_DPreport.pdf

The Constitution Project, Mandatory Justice:

Eighteen Reforms to the Death Penalty

(2001) available at

http://www.constitutionproject.org/man

ec gears bales ad and duo sneiasnne 3

The Constitution Project, Mandatory Justice:

The Death Penalty Revisited (2006),

available at http://www.constitution

project.org/manage/file/30.pdf.....................008. 3

Constitutional! Provisions

Eighth Amendment passim

IN THE

Supreme Court of the United States

No. 08-1358

BRANDY AILEEN HOLMES,

Petitioner,

i ae

STATE OF LOUISIANA,

Respondent.

On Petition For A Writ Of Certiorari To

The Louisiana Supreme Court

BRIEF FOR THE CONSTITUTION PROJECT,

AS AMICUS CURIAE IN SUPPORT OF

GRANT OF CERTIORARI

Amicus curiae, the Constitution Project

respectfully submits this brief in support of the

petition for a writ of certiorari.

2

STATEMENT OF INTEREST

The Constitution Project is a_ bipartisan

nonprofit organization that seeks solutions to

contemporary constitutional issues through

scholarship and public education.! The Project’s

essential mission is to promote constitutional dialogue.

It creates bipartisan committees whose members are

former government officials, judges, scholars, and

other prominent citizens. These committees reach

across ideological and partisan lines to craft consensus

recommendations for policy reforms. The Project is

deeply concerned with the preservation of our

fundamental constitutional guarantees and ensuring

that those guarantees are respected and enforced by

all three branches of government. The Project

promotes this Court’s role as the ultimate arbiter of

the meaning of those constitutional guarantees.

In 2000, the Project’s Death Penalty Initiative

convened a_ blue-ribbon committee including

supporters and opponents of the death penalty,

Democrats and Republicans, former judges,

prosecutors, defense lawyers, victim advocates, and

others with extensive and varied experience in the

criminal justice system. Although the Initiative does

not take a position on the death penalty, it is

No counsel for a party authored this brief in whole or in part,

and no person or entity other than amicus, its members, or its

counsel made any monetary contribution toward the

preparation or submission of this brief. A letter confirming

Petitioner's consent to the filing of this amicus brief has been

submitted to the Clerk. Respondent has refused to give its

consent. Accordingly, amicus is filing concurrently herewith a

motion for leave to file this brief pursuant to Rule 37.2 of the

Rules of this Court.

3

concerned that, as currently administered, the death

penalty lacks adequate procedural safeguards and

other assurances of fundamental fairness. The

Committee issued its first report in 2001,? and in 2006,

issued an updated version of its report with thirty-two

consensus recommendations. The Constitution

Project, Mandatory Justice: The Death Penalty

Revisited (2006), available at

http://www.constitutionproject.org/manage/file/30. pdf

(last visited June 2, 2009).

Recommendation 11 and the corresponding

commentary tn Mandatory Justice describe the need

for states to adopt and implement proportionality

review mechanisms that will meaningfully reduce the

risk of the arbitrary, capricious, and discriminatory

application of the death penalty, as required by

Furman v. Georgia, 408 U.S. 238 (1972). Mandatory

Justice at 39-41. The Louisiana Supreme Court’s

failure in this case and in others to conduct

meaningful appellate review of death sentences is in

direct contravention of this recommendation and poses

an impermissible risk that the death penalty is being

administered in violation of the Eighth Amendment.

The Constitution Project therefore urges that the

petition for certiorari be granted.

“ The Constitution Project, Mandatory Justice: Eighteen

Reforms to the Death Penalty (2001), available at

http://www.constitutionproject.org/manage/file/31.pdf (last

visited June 2, 2009).

SUMMARY OF THE ARGUMENT

Appellate review of mitigation serves as a

necessary check against the arbitrary and capricious

imposition of the death penalty as prohibited by the

Eighth Amendment to the United States Constitution.

Today, the majority of death penalty schemes either

authorizes comparative proportionality review or

provides for an alternative vehicle to ensure

meaningful appellate review of mitigation. Although

the State of Louisiana’s capital punishment scheme

contains provisions purporting to require appellate

comparative proportionality review and review for

arbitrariness, in the case of Brandy Aileen

Holmes — as in other recent Louisiana capital

cases —the Louisiana Supreme Court failed to conduct

such a review or give any consideration to her

mitigating circumstances before affirming her death

sentence

The court’s failure was not for a lack of

compelling mitigation evidence. Born with Fetal

Alcohol Syndrome (“FAS”), Ms. Holmes spent the

majority of her teen and young adult years

institutionalized. In addition to FAS, she suffers from

organic brain damage, borderline mental retardation,

Post-Traumatic Stress Disorder, and chronic and

severe depression. Her chaotic childhood was marked

by physical and sexual violence as well as poverty and

neglect. At the age of twenty-six, Ms. Holmes entered

into an abusive relationship with her co-defendant, an

older man who controlled her and whom the State

argued was the likely triggerman.

5

The important question of law raised by the

Louisiana Supreme Court’s limited review of

Ms. Holmes’s death sentence is whether meaningful

appellate review of such powerful mitigation is

constitutionally required by the Eighth Amendment.

For these reasons, amicus curtae urges the

Court to grant the Petition for certiorari.

ARGUMENT

MEANINGFUL APPELLATE REVIEW OF

MITIGATION IS REQUIRED TO GUARD

AGAINST THE ARBITRARY AND

CAPRICIOUS ADMINISTRATION OF THE

DEATH PENALTY.

Beginning with Gregg v. Georgia, 428 U.S. 153

(1976), this Court has consistently affirmed that

meaningful appellate review is a necessary component.

of a constitutional death penalty scheme.® The Court

See Gregg, 428 U.S. at 195, 206 (upholding Georgia’s death

penalty statute in significant part because of its appellate

review provisions); Proffitt v. Florida, 428 U.S. 242, 251-53

(1976) (upholding Florida’s statute in significant part because

its appellate review provisions require a substantive and

comparative consideration of all cases); Jurek v. Texas, 428

U.S. 262, 276 (1976) (upholding Texas's statute after

concluding that its appellate review provisions provide a

“means to promote the evenhanded, rational, and consistent

imposition of death sentences under law"); Zant v. Stephens,

462 U.S. 862, 890 (1983) (upholding a Georgia death sentence

hecause of, inter alia, the “existence of an important

procedural safeguard, the mandatory appellate review of each

death sentence by the Georgia Supreme Court to avoid

arbitrariness and to assure proportionality”); Parker v

6

has been equally as clear that the Eighth Amendment

requires robust consideration and weighing of

mitigating evidence. See, e.g., Woodson v. North

Carolina, 428 U.S. 280, 304-05 (1976) (striking North

Carolina’s mandatory death scheme because, inter

alia, it “excludes from consideration in fixing the

ultimate punishment of death the possibility of

compassionate or mitigating factors” and holding that

the “fundamental respect for humanity underlying the

Eighth Amendment... requires consideration of the

character and record of the individual offender”);

Tennard v. Dretke, 542 U.S. 274, 278 (2004) (noting

that the Eighth Amendment requires that the

sentencer is able to “consider and give effect” to

mitigating evidence); Abdu-Kabir v. Quarterman, 550

U.S. 2338, 246 (2007) (“[OJur cases had firmly

established that sentencing juries must be able to give

meaningful consideration and effect to all mitigating

Dugger, 498 U.S. 308, 321 (1991) (stressing the “crucial role of

meaningful appellate review in ensuring that the death

penalty is not imposed arbitrarily or irrationally”); Clemons v.

Mississippi, 494 U.S. 738, 749 (1990) (“[T]his Court has

repeatedly emphasized that meaningful appellate review of

death sentences promotes reliability and consistency.”);

McKoy v. North Carolina, 494 U.S. 433, 469 (1990) (Scalia, J..

dissenting) (“Moreover, by enabling the reviewing court to

examine the specific findings underlying the verdict it

facilitates appellate review, which we have described as ‘an

important additional safeguard against arbitrariness and

caprice.” (citation omitted)); see also Walker v. Georgia, 1295S.

Ct. 453, 454 (2008) (Stevens, J., statement respecting the

denial of certiorari) (explaining that the decision in Gregg to

uphold the Georgia statue “was founded on an understanding

that the new procedures the statute prescribed would protect

against the imposition of death sentences influenced by

impermissible factors,” and citing appellate proportionality

review as one of those critical procedures).

7

evidence that might provide a basis for refusing to

impose the death penalty on a particular individual,

notwithstanding the severity of his crime or his

potential to commit similar offenses in the future”).

In two cases, Parker v. Dugger, 498 U.S. 308

(1991) and Eddings v. Oklahoma, 455 U.S. 104 (1982),

the Court has explicitly acknowledged the importance

of appellate review of mitigation. In Parker, the Court

reversed defendant's death sentence because the

Florida Supreme Court had failed to conduct an

independent review of the trial court’s imposition of

the death penalty, and had failed to consider and

weigh the evidence presented at trial of non-statutory

mitigating circumstances. Parker, 498 U.S. at 321-22.

In Eddings, the Court similarly vacated defendant's

death sentence because both the sentencing trial judge

and the reviewing Oklahoma Court of Criminal

Appeals’ had failed to consider and give weight to

defendant’s evidence of mitigation. Eddings, 455 U.S.

at 114-115 (“The sentencer, and the Court of Criminal

Appeals on review, may determine the weight to be

given relevant mitigating evidence, [b]ut they may not

give it no weight by excluding such evidence from their

consideration.”) (emphasis added).

Of the thirty-five states that authorize the death

penalty today, the majority, nineteen, require

comparative proportionality review, as does the

' The Oklahoma Court of Criminal Appeals reviewed the

defendant's death sentence in connection with its

consideration of appellant's claim that his death sentence was

excessive in light of mitigating factors. Eddings, 455 U.S. at

lig ng

8

military law.5 See Appendix I, Death Penalty

Appellate Review Procedures. As the Court observed

in examining Georgia’s approach in the early 1970s,

the collective experience of those jurisdictions is that a

comparative proportionality review can be an effective

method of preventing the infliction of arbitrary death

sentences. Gregg, 428 U.S. at 205 (describing

reversals by the Georgia Supreme Court and

concluding that the court “has taken its review

responsibilities seriously” with respect to

proportionality review, thereby reducing the risk of the

arbitrary infliction of the death penalty). In the years

since Gregg, a number of courts have used comparative

5 Proportionality review is required by statute or case law in

the following states: Alabama, Ala. Code §13A-5-53(b)(3)

(enacted 1981); Delaware, Del. Code Ann. Title 11

§4209(g)(2)(a); Florida, by case law, see, e.g., Sinclair v. State,

657 So. 2d 1138 (Fla. 1995); Georgia, Ga. Code Ann.

§17-10-35(c)(3) (enacted 1973); Kentucky, Ky. Rev. Stat. Ann.

§532.075(3)(c) (enacted 1976); Louisiana, La. Code Crim.

Proc. Ann. art. 905.9.1(1)(c) (enacted 1977); Mississippi, Miss.

Code Ann. §99-1-105(3)(c) (enacted 1977); Missouri, Mo. Ann.

Stat. §565.035(3)(3) (enacted 1983); Montana, Mont. Code

Ann. §46-18-310(1)(c) (enacted 1977); Nebraska, Neb. Rev.

Stat. §29-2521.03 (enacted 1978); New Hampshire, N.H. Rev.

Stat. Ann. § 630:5(XI)(c) (enacted 1986); North Carolina, N.C.

Gen. Stat. §15A-2000(d)(2) (enacted 1977); Ohio Rev. Code

Ann. §2929.05(A) (enacted 1981); South Carolina, S.C. Code

Ann. §16-3-25(C)(3) (enacted 1977); South Dakota, S.D.

Codified Laws §23A-27A-12(3) (enacted 1979); Tennessee,

Tenn. Code Ann. §39-13-206(c)(1)(D) (enacted 1992); Utah, by

case law, see, e.g., State v. Lafferty, 20 P.3d 342 (Utah 2001),

Virginia, Va. Code § 17.1-313(C)(2) (enacted 1998);

Washington, Wash. Rev. Code Ann. §10.95.130(2)(b) (enacted

1981). Death sentences imposed under the Uniform Code of

Military Justice must also be reviewed using a comparative

proportionality analysis. See United States v. Curtis, 32 M.J

252, 270-271 (C.M.A. 1991).

9

proportionality review to set aside arbitrary death

sentences.®

Henry v. State, 647 S.W.2d 419, 488 (Ark. 1983); Sumlin v.

State, 617 S.W.2d 372, 375 (Ark. 1981); State v. Fierro, 804

P.2d 72, 90 (Ariz. 1990); Hall v. State, 244 S.E.2d 833, 839

(Ga. 1978); Ward v. State, 236 S.E.2d 365, 368 (Ga. 1977);

Allen v. State, 636 So. 2d 494, 497-98 (Fla. 1994); Amoros v.

State, 531 So. 2d 1256, 1261 (Fla. 1988); Besaraba v. State,

656 So. 2d 441, 447 (Fla. 1995); Blair v. State, 406 So. 2d

1103, 1109 (Fla. 1981); Blakely v. State, 561 So. 2d 560, 561

(Fla. 1990); Caruthers v. State, 465 So. 2d 496, 498-99 (Fla.

1985); Chaky v. State, 651 So. 2d 1169, 1173 (Fla. 1995); Clark

v. State, 609 So. 2d 513, 516 (Fla. 1992); DeAngelo v. State,

616 So. 2d 440, 443-44 (Fla. 1993); Farinas v. State, 569 So. 2d

425, 431-32 (Fla. 1990); Garron v. State, 528 So. 2d 353, 361

(Fla. 1988); Hazen v. State, 700 So. 2d 1207, 1214-15 (Fla.

1997); Herzog v. State, 439 So. 2d 1372, 1381 (Fla. 1983);

Johnson v. State, 720 So. 2d 232, 238-39 (Fla. 1998); Jones v.

State, 963 So. 2d 180, 187 (Fla. 2007); Klokoc v. State, 589 So.

2d 219, 222 (Fla. 1991); Knowles v. State, 632 So. 2d 62, 67

(Fla. 1993); Kramer v. State, 619 So. 2d 274, 278 (Fla. 1993);

Livingston v. State, 565 So. 2d 1288,1292 (Fla. 1988); Lloyd v.

State, 524 So. 2d 396, 403 (Fla. 1988); McCaskill v. State, 344

So. 2d 1276, 1280 (Fla. 1977); McKinney v. State, 579 So. 2d

80, 85 (Fla. 1991); Morgan v. State, 639 So. 2d 6, 13-14 (Fla.

1994); Nibert v. State, 574 So. 2d 1059, 1062-63 (Fla. 1990);

Penn vu. State, 574 So. 2d 1079, 1083-84 (Fla. 1991); Proffitt v.

State, 510 So. 2d 896, 898 (Fla. 1987); Puccio v. State, 701 So.

2d 858, 863 (Fla. 1997); Rembert v. State, 445 So. 2d 337,

340-41 (Fla. 1984); Robertson v. State 699 So. 2d 1343, 1347

(Fla. 1997); Ross v. State, 474 So. 2d 1170, 1174 (Fla. 1985);

Santos v. State, 629 So. 2d 838, 840 (Fla. 1994); Slater v.

State, 316 So. 2d 539, 542-43 (Fla. 1975); Smalley v. State, 546

So. 2d 720, 723 (Fla. 1989); Songer v. State, 544 So. 2d 1010,

LOLL-12 (Fla. 1989); Tillman v. State, 591 So. 2d 167, 169 (Fla.

1991); Terry v. State, 668 So. 2d 954, 965-66 (Fla. 1996); Waite

v. State, 616 So. 2d 21, 25-26 (Fla. 1993); Williams v. State,

707 So. 2d 683, 686 (Fla. 1998); Wilson v. State, 493 So. 2d

1019, 1023-24 (Fla. 1986); Woods v. State, 733 So. 2d 980,

991-92 (Fla. 1999); State v. Pratt, 873 P.2d 800, 823-25 (Idaho

10

Many of those reversals resulted from the

consideration given to mitigation by the appellate

courts during their comparative review analysis. See,

e.g., State v. Thompson, No. EZ005-01790-CCA-R3-DD,

2007 WL 1217233, at *33-36 (Tenn. Crim. App. April

25, 2007) (reversing death sentence of a defendant

with a “long and documented history of mental illness”

after conducting a comparative review of all cases

involving similar defendants and similar crimes); State

v. Kemmerlin, 573 S.E.2d 870, 897-99 (N.C. 2002)

(setting aside death sentence as disproportionate given

1993); State v. Scroggins, 716 P.2d 1152, 1158-61 (Idaho

1985); State v. Windsor, 716 P.2d 1182, 1192-95 (Idaho 1985);

People v. Buggs, 493 N.E.2d 332, 336-37 (Ill. 1986); People v.

Carlson, 404 N.E.2d 233, 244-45 (Ill. 1980); People v. Gleckler,

411 N.E.2d 849, 861 (Ill. 1980); People v. Johnson, 538 N.E.2d

1118, 1130-31 (Ill. 1980); Biondi v. State, 699 P.2d 1062,

1066-67 (Nev. 1985); Harvey v. State, 682 P.2d 1384, 1385-87

(Nev. 1984); Haynes v. State, 739 P.2d 497, 503-04 (Nev.

1987); State v. Sonnier, 380 So. 2d 1, 7-9 (La. 1979); Coleman

v. State, 378 So. 2d 640, 649-50 (Miss. 1979); Edwards uv.

State, 441 So. 2d 84, 92-94 (Miss. 1983); Reddix v. State, 547

So. 2d 792, 794-95 (Miss. 1989); Bullock v. State, 525 So. 2d

764, 768-70 (Miss. 1987); State v. Chaney, 967 S.W.2d 47,

59-60 (Mo. 1998); State v. MclIlvoy, 629 S.W.2d 333, 341-42

(Mo. 1982); State v. Kemmerlin, 573 S.E. 2d 870, 897-99 (N.C.

2002); State v. Benson, 372 S.E.2d 517, 552-23 (N.C. 1988);

State v. Bondurant, 309 S.E.2d 170, 182-83 (N.C. 1983); State

v. Hill, 319 S.E.2d 163, 170-72 (N.C. 1984); State v. Jackson,

305 S.E.2d 703, 716-18 (N.C. 1983); State v. Rogers, 341

S.E.2d 713, 731-33 (N.C. 1986); State v. Stokes, 352 S.E.2d

653, 663-68 (N.C. 1987); State v. Young, 325 S.E.2d 181,

192-94 (N.C. 1985); State v. DiFrisco, 900 A.2d 820, 832-33

(N.J. 2006); State v. Papasavvas, 790 A.2d 798, 804-12, 817-18

(N.J. 2002); Munn v. State, 658 P.2d 482, 487-88 (Okla. Crim.

App. 1983); State v. Hale, 840 S.W.2d 307, 314-15 (Tenn.

1992); State v. Thompson, No. E2005-01790-CCA-R3-DD, 2007

WL 1217233, at *33-36 (Tenn. Crim. App. April 25, 2007).

11

the totality of circumstances, including weak evidence

in aggravation and the presence of six mitigating

factors); State v. Chaney, 967 S.W.2d 47, 60 (Mo. 1998)

(reversing death sentence following a comparative

proportionality review based, inter alia, on mitigating

evidence of defendant’s positive character); Alokoc v.

State, 589 So. 2d 219, 222 (Fla. 1991) (mitigating

evidence, including evidence that defendant suffered

from bipolar’ affective disorder, outweighed

aggravating factors and required a life sentence); State

v. Fierro, 804 P.2d 72, 90 (Ariz. 1990) (reducing death

sentence on proportionality grounds because, inter

alia, “considering Fierro’s history of psychological

illness, we believe a careful examination of his

background renders him less, not more, deserving of a

death sentence than the ‘typical’ first degree

murderer”); People v. Carlson, 404 N.E.2d 233, 245 (11.

1980) (reducing penalty to life imprisonment because

defendant’s “mitigating circumstances do not bespeak

a man with a malignant heart who must be

permanently eliminated from society’).

Appellate courts in, several states have reversed death

sentences in light of many of the same mitigating factors

presented by Petitioner in this case, including evidence of

brain damage and mental illness, learning disabilities,

childhood abuse, reduced role in the crime, and relative youth.

See Allen, 636 So. 2d at 497-98 (young age); Besaraba, 656 So.

2d at 447 (no significant history of prior criminal activity,

crimes were committed while defendant was under the

influence of great mental or emotional disturbance,

defendant’s history of alcohol and drug abuse and physical

and emotional problems, good character, and badly deprived

and unstable childhood); Clark, 609 So. 2d at 516 (on review

finding only one aggravating factor was applicable and

concluding that non-statutory mitigation evidence of menta}

health disturbance, sexual and psychological abuse as child,

12

and substance abuse at time of crime required a life sentence);

DeAngelo, 616 So. 2d at 443-44 (“significant mental

mitigation,” including evidence of bilateral brain damage,

hallucinations, and delusional beliefs); Edwards, 441 So. 2d

at 93-94 (evidence of serious mental illness); Hall, 244 S.E.2d

at 839 (reversing where the co-defendant-triggerman, received

life and defendant received death); Harvey, 682 P.2d at 1386

(young age, lack of prior criminal history, and extreme mental

or emotional disturbance at time of the crime); Haynes, 739

P.2d at 503-04 (mentally ill defendant was in and out of

mental institutions for four to five years leading up to the

crime); Hazen, 700 So. 2d at 1214-15 (disposition of co-

defendant’s case); Herzog, 439 So. 2d at 1381 (disposition of

co-defendants’ cases); Knowles, 632 So. 2d at 67 (organic

mental disorder and brain damage, low average intelligence,

chronic memory impairment, and substance abuse); Kramer,

619 So. 2d at 278 (history of alcoholism, evidence of mental

stress, severe loss of emotional control, and potential for

productive functioning in prison); Livingston, 565 So. 2d at

1292 (youth, inexperience, marginal intellectual! functioning,

childhood history of abuse, neglect, and substance addiction);

McKinney, 579 So. 2d at 85 (mental deficiencies and alcohol

and drug history); Morgan, 639 So. 2d at 13-14 (youth, brain

damage, drug use at the time of the crime, and borderline

intelligence); Munn, 658 P.2d at 487-88 (mental state at time

of crime); Nibert, 574 So. 2d at 1062-63 (Fla. 1990) (physical

and psychological child abuse, remorse, and influence of

alcohol at time of crime); Carlson, 404 N.E.2d at 245 (extreme

mental or emotional disturbance and remorse); Johnson, 538

N.E.2d at 1131 (lack of prior criminal record, remorse,

capacity for rehabilitation and good character); Puccio, 701 So.

2d at 863 (role in offense); Reddix, 547 So. 2d at 794 (youth,

mild mental retardation, mild mental illness, and accomplice

role in the victim’s death); Robertson, 699 So. 2d at 1347

(youth, impaired capacity, childhood abuse, history of mental

illness, and borderline intellectual functioning); Ross, 474 So.

2d at 1174 (history of alcoholism and alcohol use at time of

crime); Slater, 316 So.2d at 542 (reduced culpability as

accomplice); Smalley, 546 So. 2d at 723 (“substantial”

mitigating evidence, including evidence of clinical depression);

Songer, 544 So. 2d at 1011-12 (“sigmificant mitigation,”

13

The majority of states without proportionality

review and the Federal death penalty scheme have

other appellate statutory mechanisms — including

review for arbitrariness and review of

mitigation — that permit appellate courts to reverse

death sentences in light of defendant’s mitigating

circumstances. See Appendix I; see also State v.

Bocharski, 189 P.3d 403, 426 (Ariz. 2008)

(independently weighing aggravating and mitigating

circumstances and reversing death sentence because of

the “limited aggravation evidence and the strong

mitigation evidence”); State v. Roque, 141 P.3d 368,

406 (Ariz. 2006) (independently weighing mitigating

evidence, including evidence of defendant’s mental

illness and low IQ, and concluding that a life sentence

should be imposed because, “taken as a whole, the

mitigating evidence here raises a substantial question

whether death is an appropriate sentence”); Chambers

v. State, 944 P.2d 805, 811 (Nev. 1997)® (reversing

death sentence after conducting an excessiveness

including mental health evidence); Benson, 372 S.E.2d at

522-23 (“strong” mitigating factors, including evidence that

defendant was under the influence of a mental or emotional

disturbance); Bondurant, 309 S.E.2d at 182-83 (defendant’s

remorse and intoxication at time of crime); Bullock, 525 So. 2d

at 770 (lesser role in crime); Fierro, 804 P.2d at 90 (history of

psychological illness); McIlvoy, 629 S.W.2d at 341-342 (limited

education and intelligence, alcohol problems, and follower

rather than leader personality); Papasavvas, 790 A.2d at

804-11 (brain damage, child abuse, youth, and remorse):

White, 616 So. 2d at 26 (mental health problems and drug

use); Woods, 733 So. 2d at 991 (borderline intellectual

functioning, learning disabilities, and difficult childhood).

Nevada amended its statute in 1985 to require only an

excessiveness review, rather than proportionality and

excessiveness. 1985 Nev. Stat. 1597, § 1.

14

review because of a lack of aggravating factors and

because of evidence that defendant was intoxicated at

the time of the crime); People v. Leger, 597 N.E.2d 586,

612 (Ill. 1992) (reducing defendant’s sentence to life

under constitutional authority based on evidence of

mitigation, including military and work history,

medical problems, lack of criminal history, and history

of alcohol abuse); see also State v. Claytor, 574 N.E.2d

472, 481 (Ohio 1991)9 (reversing death sentence after

independently weighing aggravating and mitigating

circumstances because the “mitigating factor involving

[the defendant’s] undisputed mental illness and the

impact it had on his reasoning process should have

been accorded more weight’).

I. THE LOUISIANA SUPREME COURT IS

FAILING TO CONDUCT A MEANINGFUL

APPELLATE REVIEW OF MITIGATING

EVIDENCE.

On its face, the plain language of the Louisiana

death penalty statute and the state supreme court’s

rules provide for both comparative proportionality

review and arbitrariness review.!° Early Louisiana

In addition to a reweighing of mitigating and aggravating

circumstances, Ohio authorizes a comparative proportionality

review under its statute. See Appendix I.

10 Under the state scheme, the Louisiana Supreme Court is

required to review every death sentence to determine, inter

alia, whether (1) “the death sentence was imposed under the

influence of passion, prejudice, or any other arbitrary factors;”

(2) “the evidence supports the jury’s finding of a statutory

aggravating circumstance”; and (3) the death sentence is

“disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” La. Sup. Ct.

15

cases reflect that at the beginning of its experience

with comparative’ proportionality review, the

Louisiana Supreme Court took this charge seriously

and conducted meaningful and vigorous reviews

pursuant to these rules and constitutional principles.

In State v. Sonnier, 380 So. 2d 1 (La. 1979), for

example, the court set aside defendant’s death

sentence as excessive after comparing it to other first

degree murder cases given the extensive mitigating

evidence in defendant’s case. Id. at 7-9. Similarly, in

State v. Weiland, 505 So. 2d 702 (La. 1987), the court

concluded that defendant’s death sentence was

disproportionate to other sentences because of the

presence of a large number of mitigating

circumstances. Jd. at 709-11. In State v. Smith, 400

So. 2d 587 (La. 1981), the court remanded the case to

the trial court for factual development and

re-evaluation of an aggravating circumstance as part

of its excessiveness review because of the “scrupulous

appellate review” required in death cases. Id. at 593.

In recent years, however, the Louisiana

Supreme Court has failed to comply with this

mandate. See, e.g., State v. Draughn, 950 So. 2d 583,

635 (La. 2007) (comparing the facts and circumstance

of the crime to other capital cases but ignoring

mitigating evidence); State v. Lacaze, 824 So. 2d 1063,

1085 (La. 2002) (same); State v. Irish, 807 So. 2d 208,

217 (La. 2002) (same). Certainly, in petitioner’s case,

the Louisiana Supreme Court did not conduct

anything approaching the type of proper vigorous and

meaningful proportionality review it conducted in the

Rule 28 (specifying three step inquiry); La. Code Crim. Proc.

art. 905.9.

16

1970s and 1980s. See Pet. Br. at 11, 27-28. Despite

the data collection procedures designed to facilitate a

robust comparison of the petitioner's case with

others,!! the Louisiana Supreme Court limited its

analysis to consideration and comparison only of the

facts of petitioner’s crime compared to the facts of

other death-sentence crimes. State v. Holmes, 5 So. 3d

41, 86-87 (La. 2008) (listing other cases with the same

aggravating factors and concluding on this basis that

the death sentence was not disproportionate). In

conducting its proportionality review, the Louisiana

Supreme Court did not so much as cite, iet alone

discuss, the trial record or defendant’s sentencing

memorandum that set forth the extensive mitigation

evidence in Ms. Holmes’s case, including her mental

health diagnoses of FAS and post-traumatic stress

disorder, her low intelligence, the fact that she likely

had a reduced role in the crime, and her chaotic

childhood. 7d.

The Louisiana Supreme Court’s current practice

of conducting only a limited proportionality review

without weighing or giving effect to mitigation

evidence violates the Eighth Amendment. As the

Louisiana Supreme Court recognized itself in the

early years of its analysis, appellate review of

mitigating circumstances is necessary to determine if

the death penalty was imposed in an arbitrary fashion.

The Louisiana State Supreme Court rules require the trial

judge, prosecution, and defense counsel to submit information

relevant to a proportionality review, including information

about the defendant's background, family situation, educativn,

economic and employment status as well as information about

all other first-degree murder cases from the district in which

the sentence was imposed. La. Sup. Ct. Rule 28.

17

See Sonnier, 380 So. 2d at 7-8 (“Another indication of

arbitrariness would be a jury’s recommendation of

death in disregard of numerous and persuasive

mitigating circumstances which clearly outweigh any

aggravating circumstances found to be present.”).

As this Court has repeatedly recognized, juries

sometimes improperly disregard mitigation, leading to

disproportionate death sentences. In Atkins ov.

Virginia, 536 U.S. 304 (2002), and Penry v. Lynaugh,

492 U.S. 302 (1989), the Court explained that

mitigating evidence of mental retardation and

childhood abuse may act as a double-edged sword

when evaluated by the jury because it may increase

the jury’s sense of fear of defendant. Atkins, 536 U.S.

at 331; Penry, 492 U.S. at 324. Similarly, in Roper uv.

Simmons, 543 U.S. 551 (2005), the Court described the

risk that the brutality and violence of the crime would

overshadow the mitigating evidence of defendant’s age,

noting that in some cases, juries may conclude that

defendant’s age is an aggravating rather than

mitigating factor. Roper, 543 U.S. at 573.

Mental health evidence is precisely the kind of

mitigating evidence that some jurors may mistakenly

treat as aggravating or give little or no weight. See,

e.g., American Psychiatric Ass’n, Position Statement,

Diminished Responsibility in Capital Sentencing

(2004), available at http://www.psych.org/

Departments/EDU/Library/APAOfficial Documentsan

dRelated/PositionStatements/200406.aspx (last visited

June 2, 2009) (“[M]any observers of capital sentencing

proceedings, including participating psychiatrists,

believe that juries tend to give too little weight to

mitigating evidence of severe mental disorder, leading

to inappropriate execution of offenders whose

18

responsibility was significantly diminished by mental

retardation or mental illness”); Christopher Slobogin,

Minding Justice: Laws that Deprive People With

Mental Disability of Life and Liberty 90 (Harvard

University Press 2006) (“[M]Jental illness is seen as a

stigmatizing sign of violence proneness, not as a

mitigating factor.”); Symposium, Mental Illness and

the Death Penalty in North Carolina: A Diagnostic

Approach 25 (2006), available at

http://www.charlottelaw.org/downloads/community/M

I_DPreport.pdf (last visited June 2, 2009) (“Even when

juries do consider mental disability as a mitigating

factor, they tend to devalue that information in

relation to aggravating evidence.”).

Ms. Holmes’s case is a textbook example of this

risk. The penalty-phase testimony was uncontroverted

that Ms. Holmes suffers from Fetal Alcohol Syndrome

and brain damage due to her mother’s consumption of

whiskey and beer during pregnancy. Pet. App’x A8-9.

Experts testified that Ms. Holmes has the dysmorphic

facial features that are a hallmark of FAS, that

neurological testing revealed significant cognitive

deficits, and that neurological brain imaging confirmed

organic brain damage. ld.

The most severe of the fetal alcohol spectrum

disorders, FAS has “a devastating impact on the

structure and function of the developing central

nervous system.” Christie L. McGee and Edward P.

Riley, Brain Imaging and Fetal Alcohol Spectrum

Disorders, 42 ANN 1ST SUPER SANITA 46, 46 (2006); see

also From Neurons to Neighborhoods: The Science of

Early Childhood Development 201 (Nat'l Research

Council et al. eds., 2000). FAS results in structural

and functional brain damage. Alison Niccols, Fetal

19

Alcohol Syndrome and the Developing Socio-emotional

Brain, 65 BRAIN AND COGNITION 135, 136 (2007). Some

children with FAS, such as Ms. Holmes, are diagnosed

as mentally retarded.!2 All suffer from serious

cognitive, attention, and behavioral problems. Id. at

135. Children with FAS suffer from impairments in

frontal lobe executive functions, such as deficits in

learning, memory, abstract reasoning, and judgment

skills and social skills. /d. at 138. They have

significantly impaired adaptive functioning skills. /d.

at 139. These deficits will persist throughout their

lifetimes. From Neurons to Neighborhoods at 200.

The secondary effects of FAS and its related

organic brain damage result in increased “risk of

victimization, criminalization, substance abuse, and

12 Although there was evidence from both a psychologist and

psychiatrist that Ms. Holmes is mentally retarded and mects

the definitions of mental retardation under Louisiana law, the

Louisiana Supreme Court concluded that trial counsel did not

submit this question to the jury and so was she not entitled to

relief. Pet. App’x A22; see also Pet. App’x B. (Calogero, C.J.,

dissenting) (“In the case before us, Dr. Vigen and Dr. Williams

both testified prior to trial that the defendant in their opinion

met the definition of mental retardation set out in La. Code

Crim. Proc. art. 905.5.1; Pet. App’x C. (Johnson, J. dissenting)

(defense presented evidence from a_ psychiatrist and

psychologist who testified that she met the definition of

mental retardation). Negative 1Q effects are associated with

exposure to heavy prenatal alcohol consumption by mothers

during the first trimester. See, e.g., Sandra W. Jacobson, et

al., Maternal Age, Alcohol Abuse History, and Quality of

Parenting as Moderators of the Effects of Prenatal Alcohol

Exposure on 7.5-year Intellectual Function, ALCOHOLISM:

CLINICAL & EXPERIMENTAL RESEARCH (2004). Ms. Holmes's

mother testified that she drank whiskey every day during the

first trimester of her pregnancy before switching to beer. Pet.

Appx A&.

20

psychiatric illness.” See, e.g., Caron Byrne, The

Criminalization of Fetal Alcohol Syndrome 1 (2002),

avatlable at http://depts.washington.edu/fadu/

legalissues/CFAS.pdf (last visited June 2, 2009). One

study found that over seventy percent of teens and

adults with FAS are the victims of sexual or physical

abuse. Ann P. Streissguth et al., UNDERSTANDING THE

OCCURRENCE OF SECONDARY DISABILITIES IN CLIENTS

WITH FETAL ALCOHOL SYNDROME (FAS) AND FETAL

ALCOHOL EFFECTS (FAE), FINAL REPORT TO THE

CENTERS FOR DISEASE CONTROL AND PREVENTION

(CDC) (University of Washington, Fetal Alcohol &

Drug Unit, Tech. Rep. No. 96-06 1996).

Ms. Holmes’s life history followed this risk

pattern. At age eleven, she began to smoke marijuana

daily. Presentence Report, at 10. One year later, at

age twelve, she was raped by her sister’s boyfriend and

subsequently hospitalized for six months, where she

was diagnosed with Post-Traumatic Stress Disorder

and Major Depression. Pet. App’x A7; Appellant’s

Capital Sentence Review Memorandum (App. SRM) at

6-7. She was also sexually abused by her father and

other adults living in his house. App. SRM at 7. This

pattern of abuse and mental illness continued

throughout Ms. Holmes’s teen years. App. SRM at 6-7.

Individuals, such as Ms. Holmes, who are

exposed to multiple traumas frequently develop

Post-Traumatic Stress Disorder (“PTSD”). See Ronald

Kessler, Posttraumatic Stress Disorder: The Burden to

the Individual and to Society, 61 J. CLINICAL

PSYCHIATRY (Supp. 5) 4 (2000). For many individuals

suffering from PTSD, the condition will persist for

many years. Soloman, S. & Davidson, J. Trauma:

Prevalence, Impairment and Service, Use, and Cost, 58

21

J. CLINICAL PSYCHIATRY (Supp. 9) 5 (1997). PTSD

itself is associated with a host of additional symptoms,

including social withdrawal, impaired relationships

with others, and self-destructive and impulsive

behaviors. Diagnostic and Statistical Manual of

Mental Disorders 465 (Am. Psychiatric Assoc. ed., 4th

ed., Text Revision 2000).

Numerous studies have found that the majority

of people suffering from PTSD also meet the diagnostic

criteria for at least one other psychiatric disorder. See

Ronald Kessler et al., Posttraumatic Stress Disorder in

the National Comorbidity Survey, 52 Archives Gen.

Psychiatry, 1048 (1995); K. Brady et al., Comorbidity

of Psychiatric Disorders and Posttraumatic Stress

Disorder, 61 J. CLINICAL PSYCHIATRY 22-23, 27 (2000).

In Ms. Holmes’s case, she was diagnosed with Major

Depression with psychotic features and prescribed

both anti-psychotic medications and anti-depressants.

App. SRM at 6.

The Louisiana Supreme Court was

constitutionally required to consider Ms. Holmes’s

compelling mitigating circumstances when deciding

whether her death sentence was proportionate.

Meaningful appellate review is a constitutionally

required component of any capital punishment scheme

and, to serve its constitutional function, this review

must contain a mechanism that enables the appellate

court to assess the mitigation in a defendant’s case.

22

CONCLUSION

For the foregoing reasons, amicus curiae urges

the Court to grant Brandy Aileen Holmes’s Petition for

Certiorart.

Respectfully submitted,

Andrew G. Horne

Counsel of Record

Kevin N. Malek

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, New York 10022

Counsel for Amicus Curiae

The Constitution Project

June 4, 2009

APPENDIX

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APPENDIX I:

DEATH PENALTY APPELLATE REVIEW

PROCEDURES

Of the thirty-five states that currently have the death

penalty, nineteen states provide for comparative

proportionality review:

Alabama, Ala. Code §13A-5-53(b)(3) (enacted

1981);

Delaware, Del. Code Ann. Title 11

§4209(g)(2)(a);

Florida, by case law, see e.g., Sinclair v. State,

657 So. 2d 1138 (Fla. 1995);

Georgia, Ga. Code Ann. §17-10-35(c)(3) (enacted

1973);

Kentucky, Ky. Rev. Stat. Ann. §532.075(3)(c)

(enacted 1976);

Louisiana, La. Code Crim. Proc. Ann. art.

905.9.1(1)(c) (enacted 1977);

Mississippi, Miss. Code Ann. §99-19-105(3)(c)

(enacted 1977);

Missouri, Mo. Ann. Stat. §565.035(3)(3) (enacted

1983);

Montana, Mont. Code Ann. §46-18-310(1)(c)

(enacted 1977);

Nebraska, Neb. Rev. Stat. §29-2521.03 (enacted

1978);

New Hampshire, N.H. Rev. Stat. Ann.

§630:5(X])(c) (enacted 1986);

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North Carolina, N.C. Gen. Stat. §15A-2000(d)(2)

(enacted 1977);

Chio Rev. Code Ann. §2929.05(A) (enacted

1981);

South Carolina, S.C. Code Ann. §16-3-25(C)(3)

(enacted 1977);

South Dakota, S.D. Codified Laws

§23A-27A-12(3) (enacted 1979);

Tennessee, Tenn. Code Ann. §39-13-206(c)(1)(D)

(enacted 1992);

Utah, by case law, see, e.g., State v. Lafferty, 20

P.3d 342 (Utah 2001);

Virginia Code § 17.1-313(C)(2) (enacted 1998);

Washington, Wash. Rev. Code Ann.

§10.95.130(2)(b) (enacted 1981).

One state has eliminated “proportionality” review but

has maintained “excessiveness” review:

Nevada, Nev. Rev. Stat. § 177.055(2)(e).

Seven states provide for substantive appellate review

of mitigation through another mechanism:

Arizona, Ariz. Rev. Stat. Ann. §13-703.04(A)

(enacted 1994) (“On review, the supreme

court shall independently review the trial

court’s findings of aggravation and

mitigation and the propriety of the death

sentence.”);

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Colorado, Colo. Stat. Rev. §18-1.3-1201(6)(a)

(2002) (“(T]he supreme court shall review

the propriety of that sentence, having regard

to the nature of the offense, the character

and record of the offender, the public

interest, and the manner in which the

sentence was imposed, including the

sufficiency and accuracy of the information

on which it was based.”);

Illinois, 720 [1l. Comp. Stat. §5/9-1(1) (enacted

2003) (requiring the Illinois Supreme Court

to ask whether a death sentence is

“fundamentally unjust” as part of its

review); see also People v. Leger, 597 N.E.2d

586, 610 (Ill. 1992) (“This court has vacated

death sentences where such an extreme

penalty was found to be inappropriate, in

view of any relevant mitigating factors.”);

Indiana, Ind. Code Ann. §35-50-2-9(G) (enacted

2003) (review if “otherwise erroneous’);

Kansas, Kan. Stat. Ann. §21-4627(c)(2) (enacted

1994) (appellate court review “whether the

evidence supports the findings that an

aggravating circumstance or circumstances

existed and that any mitigating

circumstances were insufficient to outweigh

the aggravating circumstances.”);

Maryland, Md Code Ann., Crim. Law

§2-401(d)(2)G@i1)_ ~=(enacted 2002) (“the

evidence supports a finding by the court or

jury that the aggravating circumstances

outweigh the mitigating circumstances

under §2-303(h) and (i)(1) of this title”);

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Oregon, by case law, State v. Moore, 927 P.2d

1073 (Or. 1996) (ruling State Supreme Court

will review juror’s conclusions about death

penalty, including decision to impose death

penalty).

Four states, although not providing for proportionality

review or reweighing of mitigation, require an

arbitrariness, prejudice, or product of passion review:

Connecticut, Conn. Gen. Stat. Ann. §53a-46b(b)

(“The Supreme Court shall affirm the

sentence of death unless it determines that:

(1) The sentence was the product of passion,

prejudice or any other arbitrary factor”);

Idaho, Idaho Code Ann. §19-2827 (c)(1) (same);

Pennsylvania, 42 PA. Cons. Stat. Ann. §9711

(h)(3)(i) (same);

Wyoming, Wyo. Stat. Ann §6-2-103(d)(i) (same).

Three states, Arkansas, California, and Texas fail to

provide for proportionality review, explicit appellate

review of mitigation, or arbitrariness review.

Arkansas, Ark. Code Ann. §5-4-603(d)(1)

(Arkansas Supreme Court is only required to

conduct harmless error review of death sentence

if no mitigation is found and one or more

aggravators do not exist);

California, Cal. Penal Code §190.4(e) (California

Supreme Court will review on appeal the trial

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court’s denial of a motion to modify a sentence

of death to life);

Texas, Tex. Code Crim. Proc. art. 44.251(a)

(Texas court of criminal appeals shall reform a

death sentence for “legally insufficient evidence”

to support an affirmative answer to one of three

questions under Texas sentencing statute for

reversible error).

Federal law provides for both a substantive review of

penalty-phase evidence and an_ arbitrariness,

prejudice, or product of passion review:

18 U.S.C. 3595(b) & (c) (“The court of appeals

shall review the entire record in the case,

including .. . the information submitted during

the sentencing hearing” and shall determine

whether “the sentence of death was imposed

under the influence of passion, prejudice, or any

other arbitrary factor.”)

By case law, a review of death sentences imposed

under the Uniform Code of Military -Justice requires a

review of all of the facts and circumstances of the case

and a comparative proportionality analysis.

United States v. Curtis, 32 M.J. 252, 270-271

(CMA 1991).

a-6

* The three states who have recently abolished the

death penalty either through legislative action or

constitutional rulings — New Jersey, New Mexico, and

New York — all provided for proportionality review.

See New Jersey, N.J. Stat. Ann. §2C:11-3; New

Mexico, N.M. Stat. Ann. §31-20A-4(C)(4) (enacted

1979); New York, N.Y. Crim. Proc. Law §470.30(3)(b)

(enacted 1995).