Amicus Curiae Brief — Utah v. Ott

—_ a .

) iS (Z) eee 0 Cae

No. 10-490 NOV 15 2610

OFFICE OF THE CLE®&K

In The

Supreme Court of the Anited States

STATE OF UTAH.

Petitioner,

V.

MARK ANTHONY OTT,

Resp ymndent

_— a ————

On Petition For Writ Of Certiorari

To The Utah Supreme Court

*

BRIEF OF AMICUS CURIAE THE

NATIONAL CRIME VICTIM LAW INSTITUTE

SUPPORTING PETITIONER

4-

PAUL G. CASSELL

(Counsel of Record)

S.J. QUINNEY COLLEGE OF LAW

AT THE UNIVERSITY OF UTAH*

332 S. 1400 E., Room 101

Salt Lake City, UT 84112

(801) 585-5202

cassellp@law.utah.edu

MARGARET GARVIN

ALISON WILKINSON

NATIONAL CRIME VICTIM LAW

INSTITUTE AT LEWIS &

CLARK LAW SCHOOL*

310 SW 4th Ave., Suite 540

Portland, OR 97204

(503) 768-6819

Counsel for Amicus Curiae

*Law Schools are not amicus

and are listed for location

purposes only

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF CONTENTG............. sesguneus seosenealaeteuevaes

TAAL sks CPP PALS FORA P Wee Ie ocr cinsinresereseicadnscdevucwiness

INTERESTS OF AMICUS CURIAE .....................

REASONS FOR GRANTING THE PETITION

THIS COURT SHOULD REVIEW THE

IMPORTANT QUESTION OF WHETHER

THE EIGHTH AMENDMENT ERECTS A

PER SE BAR AGAINST A CRIME VIC-

TIM OFFERING A SENTENCING REC-

OMMENDATION

[.

A.

The Court’s Opinions are the Origin

of the Confusion Regarding the Scope

of Permissible Victim Impact State-

ments

The Impact of the Confusion Caused

by this Court’s Precedents is a Split

of the Courts Below

Only this Court Can Resolve the Conflict.

as to Whether the Eighth Amendment

Bars Victim Sentencing Recommendations

in a Capital Case and this Case Pre-

sents an Appropriate Vehicle for Clarifi-

cation

THE EIGHTH AMENDMENT DOES NOT

ERECT A PER SE BAR AGAINST VIC-

TIM SENTENCING RECOMMENDA-

TIONS IN A CAPITAL CASE....................0..

14

TABLE OF CONTENTS — Continued

Page

A. Fairness to Victims at Sentencing is

Critical to the Administration of Jus-

ALOR PE eT OU EEE eee SREY Pea RE 15

B. State Law Has Evolved to Recognize

that Victim Allocution at Sentencing,

Including Sentencing Recommenda-

tions, is a Necessary Component of

Fairness and Justice ..............0.csceeceeeeees 17

C. Any Danger of Prejudice from Victim

Allocution that Includes a Sentencing

Recommendation Can be Tempered by

the Use of Evidentiary Rules and Does

Not Require a Per Se Bar..................006. 20

Se LPI UID ce riscanc ncn cenicarshsasasisrenstssiestocipaneneent . @n

11]

TABLE OF AUTHORITIES

Page

CASES

Beck v. Commonwealth, 484 S.E.2d 898 (Va.

rr tha ae ad he re 10

Booth v. Maryland, 482 U.S. 496 (1987)............ passim

Brecht v. Abrahamson, 507 U.S. 619 (1993).............. 13

Conover v. State, 9383 P2d 904 (Okla. Crim.

NE RMNENT nnd cessusetosacexyssdeuseneanaueeasincseenavesanpacntin il, 23

Ex parte McWilliams, 640 So. 2d 1015 (Ala.

IE 0a ine ee os Ree ee 10

Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002) ....9, 13

Hooper v. Mullin, 314 F3d 1162 (10th Cir.

STREETS a ad Sard ne ee APNE I A ae ee 9,13

Ivey v. Catoe, 36 Fed. Appx. 718 (4th Cir. 2000),

cert. denied, 537 U.S. 952 (2002).................seccceeess. 10

Kelly v. California, Nos. 07-11073, 07-11425,

129 S.Ct 564, 172 L.Ed.2d 445 (2008)..........0.0000000... 8

Ledbetter v. State, 933 P2d 880 (Okla. Crim.

App. 1997) ......... PiuLaNua peste sana bedsdeweb eed cx meneaebaeentacacaas 1]

Lynn v. Reinstein, 68 P.3d 412 (Ariz. 2003)........... 7,11

Murphy v. State, 47 P.3d 876 (Okla. Crim. App.

2002), cert. dented, 538 U.S. 985 (2003)........... 11, 12

Ohio v. Huertas, 498 U.S. 336 (1991)...............ccc ccc cc sees 7

Parker v. Bowersox, 188 F.3d 923 (8th Cir.

1999), cert. denied, 529 U.S. 1038 (2000)........ ee 10

Payne v. Tennessee, 501 U.S. 808 (1991)............ passim

TABLE OF AUTHORITIES — Continued

Page

Snyder v. Massachusetts, 291 U.S. 97 (1934) .............. 4

South Carolina v. Gathers, 490 U.S. 805 (1989) ...5, 7, 15

State v. Carter, 888 P.2d 629 (Utah 1995) ................. L6

State v. Fautenberry, 650 N.E.2d 878 (Ohio),

cert. dented, 516 U.S. 996 (1995).......0... cece eee ee eee 10

State v. Huertas, 553 N.E.2d 1058 (Ohio 1990),

cert. dismissed, 498 U.S. 336 (1991).........0.0c cece. 7

State v. Koskovich, 776 A.2d 144 (N.J. 2001) ............ LO

State v. Middlebrooks, 995 S.W.2d 550 (Tenn

| Rea GE SIE I EEE ae Nr ERA RE AER EAS A 10

State v. Ott, No. 20040638, 2010 WL 11138

en i) i scawcndsunecenvaucvebnses 16, 17

State v. Payne, 791 8.W.2d 10 (Tenn. 1990)............... 16

State v. Pirtle, 904 P.2d 245 (Wash. 1995), cert.

GOI, BLS U.S. LOGS CLG GG) oceceseccescacsccvccssescsscvesces LO

Trop v. Dulles, 356 U.S. 86 (1958) (plurality

Levi saisciaidticvusiuiesavexent+esentasecdueseeeasesdenseateciss 4,14

Turrentine v. State, 965 P2d 955 (Okla. Crim.

App. 1997), cert. dented, 525 U.S. 1057

i ot ee a ce cavaperadaieaanss 11,13

Ware v. State, 759 A.2d 764 (Md.), cert. denied,

er re CES 1 - scuavevavavcuvavasesuntedvsceesses 10

Weems v. United States, 217 U.S. 349 (1910) ............ 14

Welch v. State, 2 P.38d 356 (Okla. Crim. App.),

cert. denied, 531 U.S. 1056 (2000)........................ 12

TABLE OF AUTHORITIES — Continued

Page

Woods v. Johnson, 75 F.3d 1017 (5th Cir. 1996)........ 10

Young v. State, 12 P.3d 20 (Okla. Crim. App

2000), cert. dented, 532 U.S. 1055 (2001)....... 12,13

CONSTITUTION

U.S. Const. amend. VIII......... , | _ passim

FEDERAL STATUTES

18 U.S.C. § 3771(a)....... een ony 4 ..18

$9 OR ROM Bo veg TC } Nene abanGlonateiinee

Fed. R. Crim. Proc. 32(c)(3)(E) ee ee

STATE STATUTES

Utah Code Ann. § 76-3-207 ..... wh | ) .....16

Utah Code Ann. § 76-3-207(2)(b)........... ......16

Utah Code Ann. § 77-38-4(1)(b)..... | Mis ey |

Utah Const., art. I, § 28........ SA PREIS Vm RA Eo R l6

OTHER AUTHORITIES

150 Cong. Rec. $2468 (daily ed. Apr. 22, 2004).........18

Dean G. Kilpatrick & Randy K. Otto, Constitu

tionally Guaranteed Participation in Crimi

nal Proceedings for Victims: Potential Effects

on Psychological Functioning, 34 WAYNE L

Ss 9 IEEE cha seen ca gure deratncemieccovonmeaeeneumecetaodss paca

Vi

TABLE OF AUTHORITIES — Continued

Douglas E. Beloof, Constitutional Implications

of Crime Victims as Participants, 88 CORNELL

i eccannkcocnese 9,

Douglas E. Beloof, Weighing Crime Victims’

Interests in Judicially Crafted Criminal Pro

Page

cedure, 56 CATH. U. L. REv. 1135 (2007) ..................3

Elijah Lawrence, Victim Opinion Statements:

Providing Justice for Grieving Families, 12 J.

L. & FAM. STUDIES 511 (2010) ...........ccccccccccccccsscvcsess 3

Task Force on the Victims of Crime and Vio-

lence, Executive Summary: Final Report of

I

the APA Task Force on the Victims of Crime

and Violence, 40 Am. Psychologist 107 (1985)

Theodore Eisenberg et al., Victim Characteris-

tics and Victim Impact Evidence in South

Carolina Capital Cases, 88 CORNELL L. REV.

I dre tos alec cebndbcacteekevenuanbens

Uli Orth, Secondary Victimization of Crime

Victims by Criminal Proceedings, 15 Social

Justice Research 313 (2002).............0.0..0.0.0c. ee.

Wayne A. Logan, Opining on Death: Witness

Sentence Recommendations in Capital Trials,

Oe Be Bes Bs OE © CD bsinecvcvscieedeseencecevessnce

INTERESTS OF AMICUS CURIAE

The National Crime Victim Law Institute (NCVLI)

is a nonprofit educational organization located at

Lewis & Clark Law School in Portland, Oregon.

NCVLI’s mission is to actively promote balance and

fairness in the justice system through crime victim

centered legal advocacy, education, and resource

sharing. NCVLI accomplishes its mission through

education and training; technical assistance to attor-

neys; promotion of the National Alliance of Victims’

Rights Attorneys; and research and analysis of devel

opments in crime victim Jaw. In addition, NCVLI

actively participates as amicus curiae in cases involv-

ing crime victims’ rights nationwide. This case in

volves the fundamental right of all crime victims to

be fully heard at sentencing.

No counsel for a party authored this orief in whole or in

part, and no such counsel or party made « monetary contribu

tion intended to fund the preparation or submission of this brief

No person other than amicus curiae or its counsel made a

monetary contribution to its preparation or submission. The

parties have consented to the filing of this brief and have been

given at least 10 days notice of amicus curiae’s intention to file

it.

bo

REVIEW IS WARRANTED ON THE

IMPORTANT QUESTION OF WHETHER

THE CONSTITUTION BARS VICTIMS

FROM COMMENTING ON THE

APPROPRIATE SENTENCE DURING

DELIVERY OF THEIR VICTIM IMPACT

STATEMENT AT SENTENCING.

REASONS FOR GRANTING THE PETITION

In the case below, the Utah Supreme Court held

that it constitutes cruel and unusual punishment for

family members of a murder victim to offer their

opinion regarding the appropriate sentence for the

murderer. The decision squarely presents the ques-

tion whether the Eighth Amendment erects a per se

bar against a victim’s sentencing recommendation, a

question this Court deferred in Payne v. Tennessee,

501 U.S. 808 (1991). While Payne overruled parts of

the Court’s earlier opinion in Booth v. Maryland, 482

U.S. 496 (1987), barring general victim impact evi-

dence, the Court specifically reserved the question of

whether it should likewise overrule that part of Booth

that the Court described as barring crime victims

from delivering opinions on the proper sentence.

Despite the characterization in Payne, the Court did

not have the question of sentencing recommendations

squarely presented in Booth. Consequently, whether

the Eighth Amendment erects such a bar has not

been ruled upon and therefore the answer is far from

clear.

The ambiguity of the interaction between Payne’s

overruling of Booth and the scope of Booth’s original

‘

holding has created significan

lower courts regarding the scope of permis

impact statements and has resulted in a

authorities in the lower courts, as the Stat

has explained at length in its petition for certiorari

See also Elijah Lawrence, Victim Opinion Statement

Providing Justice for Grieving Families, 12 J. L. &

FAM. STUDIES 511, 522 (2010) (“The split in authority

in the lower courts is apparent This state of confu

sion 1s the result of the U.S. Supreme Court’s ambig

uous holding in Booth, followed by its obfuscatin

opinion in Payne. Some courts are construing the

Court’s ruling in Payne to mean the Eighth Amend

ment creates a per se bar on the admission of victin

opinion statements in capital cases."); Wayne A

Logan, Opining on Death: Witness Sentence Recon

mendations tn Capital Trials, 41 B.C. L. Rev. 517

528 (2000) (reviewing authorities and noting that

is readily apparent that marked uncertainty now

persists over the extent. and indeed the continued

existence, of the prohibition [against victim senten

ing recommendations} ostensibly established

Booth”). Perhaps even more important, this confusior

among the lower courts is undermining key aspect

victims mghts codified in all 50 states and the Di

trict of Columbia, and impeding legislative action 1

further ds velop these right

S06 Dougla k Beloof Wel, hin, {

in Judicially Crafted Criminal Proceduri

1135, 1169 (2007) (noting that victim

Continued on followir

‘;

‘

Only this Court c: intangie the situation a!

ettle the dispute splitting the courts below. Ther

no value in letting the conflict continue to percolate

ause court on mach ide have, after CADP ly

considering the alternative, repeatedly tated their

conflicting opinion Further, continuation of the

tatus quo means ongoing deprivation of victim

constitutional and statutory rights to be heard freely

which in turn stymies the “evolving standards of de

cency that mark the progress of a maturing society.’

Trop Dulles: 356 US ° 1] (195% plurality

PINOT)

This Court Should Review the Important

Question of Whether the Eighth Amend-

ment Erects a Per Se Bar Against a Crime

Victim Offering a Sentencing Recommen-

dation.

A. The Court’s Opinions are the Origin of

the Confusion Regarding the Scope of

Permissible Victim Impact Statements.

his Court’s opinions have created confusion a

whether the St: may constitutionally permit a

tLatute ind in me thar ‘ ny constituts

imendment These legislative lor ave also included

titutional consideration A number of recent Convresses have

considered, and different Administrations have upported

constitutional amendments to “keep the balance true,” Snyder ¢

Vassachusett 291 U.S. 97, 122 (1934 betwee! he meht

ctims and those of criminal defendant

1

crime victim or crime victim’s representative to offer

a recommendation on the appropriate sentence to

the sentencing judge or jury. The source of this con-

troversy is dictum in a footnote in Payne v. Tennessee,

501 U.S. 808 (1991). The Court there heid that “if the

State chooses to permit the admission of victim

impact evidence and prosecutorial argument on that

subject, the Eighth Amendment erects no per se bar.”

Payne, 501 U.S. at 827. In so holding, the Court

clearly and explicitly overruled Booth v. Maryland,

482 U.S. 496 (1987), which prohibited the admission

of such a victim impact statement.

The Court in Payne limited the scope of its deci-

sion, however, with the following footnote:

Our holding today is limited to the holdings

of Booth v. Maryland, 482 U.S. 496 (1987)

and South Carolina v. Gathers, 490 U.S. 805

(1989) that evidence and argument relating

to the victim and the impact of the victim’s

death on the victim’s family are inadmissible

at a capital sentencing hearing. Booth also

held that the admission of a victim’s family

members’ characterizations and opinions

about the crime, the defendant, and the

appropriate sentence violates the Eighth

Amendment. No evidence of the latter sort

was presented at the trial in this case.

Payne, 501 U.S. at 830 n.2 (emphasis added). See also

id. at 833 (O’Connor, J., concurring) (“Booth also

addressed another kind of victim impact evidence

opinions of the victim’s family about the crime, the

6

defendant, and the appropriate sentence. As the

Court notes in today’s decision, we do not reach this

issue as no evidence of this kind was introduced at

petitioner’s trial.”)

The puzzle, however, is that the Court in Booth

was not presented with, did not address, and there-

fore could not and did not erect a bar against victims’

characterizations about the appropriate sentence.

The victim impact statement in Booth contained two

types of victim information: “First, it described the

personal characteristics of the victims and the emo-

tional impact of the crimes on the family. Second, it

set forth the family members’ opinions and character-

izations of the crimes and the defendant.” Booth, 482

U.S. at 502. The jury was not presented with any

victim recommendation for or characterization of the

appropriate sentence. There were passing statements

from the victims’ son that he “doesn’t think anyone

should be able to do something like that and get away

with it” and from the victims’ daughter that “she

doesn’t want them to be able to do this again or put

another family through this,” id. at 508, which the

Court rightly described as characterizations of the

crimes and the defendant.

The Arizona Supreme Court summarized the

situation well:

The victims’ statements in Booth only in-

directly hinted at the punishment the vic-

tims were recommending. Indeed the only

statements regarding sentencing were that

the victims did not “think anyone should be

able to do something like [the murders at

issue] and get away with it” and that “the

people who did this could never be rehabil-

itated.” Booth, 482 U.S. at 508. No specific

recommendations regarding sentencing were

made. Thus the facts in Booth make it un-

clear whether the Court in that case con-

sidered the effect of the Eighth Amendment

on opinions regarding sentencing. In Payne,

however, the Court characterized Booth as

prohibiting not only family members’ opin-

ions and characterizations, but also recom-

mendations of “the appropriate sentence.”

Payne, 501 U.S. at 830 n.2.

Lynn v. Reinstein, 68 P.3d 412, 416 n.4 (Ariz. 2003).°

Payne thus ascribed to Booth a category of victim

information that was not present in that case. This

erroneous characterization of the victim statements

at issue in Booth is the center of the current contro-

versy. The Court’s mischaracterization not only

* That Booth did not consider a victim sentencing recom-

mendation 1s underscored by the histery of Ohio v. Huertas, 498

U.S. 336 (1991). In reversing a death sentence because the jury

considered a victim’s sentencing recommendation, the Ohio

Supreme Court stated, “The type of evidence given by the

victim’s family in this case goes beyond that considered in Booth

and Gathers. Here, a family member offered his opinion on what

the appropriate sentence would be for the defendant.” State uv.

Huertas, 553 N.E.2d 1058, 1064 (Ohio 1990). This Court granted

certiorari, 498 U.S. 807 (1991), but dismissed the petition as

improvidently granted, 498 U.S. 336 (1991), apparently because

the victim’s sentencing recommendation could be excluded

independently under state evidentiary rules.

reserved for later consideration the question pre-

sented in this petition, but also implicitly and anoma-

lously “preserves” a rule — a per se ban on victim

sentencing recommendations — that did not exist in

prior law.

Members of this Court have recently noted the

uncertainties in victim impact jurisprudence spawned

by its rulings. In Kelly v. California, Nos. 07-11073,

07-11425, 129 S.Ct 564, 172 L.Ed.2d 445 (2008), two

petitioning murderers asked this Court to review the

admission of victim impact videos into evidence at

their trials. While the full Court denied certiorari,

two members of this Court (Justices Souter and

Stevens) would have granted review. Justice Stevens

dissented from the denial of certiorari to explain, “In

the years since Payne was decided, this Court has left

state and federal courts unguided in their efforts to

police the hazy boundaries between permissible

victim impact evidence and its impermissible, ‘unduly

prejudicial’ forms.” 129 S.Ct. at 566.

B. The Impact of the Confusion Caused

by this Court’s Precedents is a Split of

the Courts Below.

Interpreting and applying this Court’s decisions

in Booth and Payne, the lower courts fundamentally

disagree over whether Booth erected a per se bar

against victim sentencing recommendations in capital

cases and whether any such bar survives Payne.* The

conflict, in essence, is one over the baseline Eighth

Amendment rule before and after the dictum in

Payne.

The Court of Appeals for the Tenth Circuit has

held that “the portion of Booth prohibiting family

members of a victim from stating ‘characterizations

and opinions about the crime, the defendant, and the

appropriate sentence’ during the penalty phase of a

capital trial survived the holding in Payne and re-

mains valid.” Hain v. Gibson, 287 F.3d 1224, 1238-39

(10th Cir. 2002) (quoting Payne, 501 U.S. at 830 n.2).

See also Hooper v. Mullin, 314 F.3d 1162, 1174 (10th

Cir. 2002) (same). The flaw in the Tenth Circuit’s

reasoning is that it did not question the assertion

that Booth considered sentencing recommendations,

which resulted in a conclusion that Payne left intact a

holding that the Eighth Amendment erected a per se

bar against victim sentencing recommendations. As

noted above, whether this bar existed in Booth is less

than clear. Like the Tenth Circuit, the court below

* With regard to non-capital cases, the lower courts agree

that there is no constitutional bar against sentencing recom-

mendations in victim impact statements. See Douglas E. Beloof,

Constitutional Implications of Crime Victims as Participants, 88

CORNELL L. REV. 282, 289 n.51 (2003) (“Every state ruling on the

constitutionality of victim recommendations in noncapital cases

has held that trial court judges can hear all three types of

impact evidence, including sentencing recommendations that

are in the public interest.”) (collecting authorities)

10

and the Courts of Appeals for the Eighth Circuit,’ the

Fifth Circuit,” and the Fourth Circuit’ in dictum

and the highest courts of Alabama,*° Maryland,’ New

Jersey,” Ohio,’ Tennessee,” Virginia,” and Wash-

ington” have reached similar conclusions with little

to no critical analysis of the underlying assumption

regarding the scope of the Booth holding.

The Arizona Supreme Court has questioned the

assertion that Booth erected a per se bar against

sentencing recommendations. Ultimately, however,

the Arizona Supreme Court agreed with the Tenth

Circuit. Delving further into the history of Booth and

Payne, the court correctly noted that “the facts in

* See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999),

cert. denied, 529 U.S. 1038 (2000) (dictum).

© See Woods v. Johnson, 75 F.8d 1017, 1037-38 (5th Cir.

1996) (dictum).

" See lvey v. Catoe, 36 Fed. Appx. 718, 725-26 (4th Cir. 2000),

cert. denied, 537 U.S. 952 (2002) (dictum).

" See Ex parte McWilliams, 640 So. 2d 1015, 1017 (Ala

1993).

* See Ware v. State, 759 A.2d 764, 783-86 (Md.), cert. denied,

531 U.S. 1115 (2000).

'° See State v. Koskovich, 776 A.2d 144, 177 (N.J. 2001).

" See State v. Fautenberry, 650 N.E.2d 878, 882 (Ohio), cert.

denied, 516 U.S. 996 (1995).

° See State v. Middlebrooks, 995 S.W.2d 550, 558 (Tenn.

1999),

‘’ See Beck v. Commonwealth, 484 S.E.2d 898, 903-04 (Va.

1997).

‘’ See State v. Pirtle, 904 P.2d 245, 269 (Wash. 1995), cert.

denied, 518 U.S. 1026 (1996).

1]

Booth make it unclear whether the Court in that case

considered the effect of the Eighth Amendment on

opinions regarding sentencing.” Lynn, 68 P.3d at 416

n.4. However, the court “defer|red] to the Court’s

interpretation of its own case,” and held that “Payne

did not overrule and indeed left intact that portion of

Booth which the Court itself has characterized as

prohibiting victims from recommending a sentence in

a capital case.” /d.

In stark contrast to the above-cited courts stands

the Oklahoma Court of Criminal Appeals, the State’s

criminal court of last resort, which has definitively

reached the opposite conclusion and consistently

permits victims to recommend the appropriate sen-

tence in capital cases. “In at least three decisions, this

Court has taken the position that Payne appears to

have overruled Booth with respect to the issue of

whether or not victim impact statements could in-

clude characterizations of the defendant, the crime,

and opinions in regard to sentencing.” Murphy uv.

State, 47 P.3d 876, 885 (Okla. Crim. App. 2002), cert.

denied, 538 U.S. 985 (2003), (citing Turrentine v.

State, 965 P.2d 955, 980 (Okla. Crim. App. 1997), cert.

denied, 525 U.S. 1057 (1998)), Ledbetter v. State, 933

P.2d 880, 890-91 (Okla. Crim. App. 1997); Conover v.

State, 933 P.2d 904, 920 (Okla. Crim. App. 1997).

Noting that this Court has denied past petitions

presenting the question, and that it has “continued to

approve of such evidence in other capital cases,” the

Oklahoma Court of Criminal Appeals reaffirmed

its consistent rejection of the argument that its

“interpretation of Payne and Booth, or for that matter

our own statute, 1s erroneous or unconstitutional.”

Murphy v. State, 47 P.3d at 885 (citing Young v. State,

12 P.3d 20 (Okla. Crim. App. 2000), cert. denied, 532

U.S. 1055 (2001), and Welch v. State, 2 P.3d 356 (Okla.

Crim. App.), vert. denied, 531 U.S. 1056 (2000)).

> Only this Court Can Resolve the Conflict

as to Whether the Eighth Amendment

Bars Victim Sentencing Recommenda-

tions in a Capital Case and this Case

Presents an Appropriate Vehicle for

Clarification.

This Court’s opinions in Booth and Payne are the

crux of the confusion and conflict across the country;

consequently, it will only be when this Court speaks

on the issue again that the conflict will be resolved.

Because the courts on each side of the split have

repeatedly entrenched in their positions even after

consideration of the alternative, there is no value to

letting the conflict continue. Further, the petition

before this Court provides a good vehicle for resolu-

tion of the matter.

As noted above, a number of petitions for re-

view from cases decided by the Oklahoma Court of

Criminal Appeals have been presented to this Court.

Notably, however, each posed a vehicle problem to

this Court’s consideration of the question presented.

In two cases, the petitioner did not object and their

arguments were dismissed on plain error review. See

Murphy, 47 P.3d at 885; Welch, 2 P.3d at 373. The

13

defendant in another case failed to elicit the victim’s

opinion on the appropriate sentence and unsuccess-

fully sought to reopen the proceedings to consider her

recommendation of life. The appellate court held that

the victim recommendation would have been admis-

sible, but that the trial court did not abuse its discre-

tion in denying the motion to reopen. Young, 12 P.3d

at 43. In Turrentine, the Oklahoma Court of Criminal

Appeals held that any constitutional error was harm-

less beyond a reasonable doubt. 965 P.2d at 982.

Likewise, although the Tenth Circuit has held twice

that the Oklahoma courts erroneously permitted

victim opinions on the appropriate sentence, it fur-

ther held in each case that “this constitutional error

was harmless because it did not have a ‘substantial

and injurious effect or influence in determining the

jury’s verdict.’” Hooper v. Mullin, 314 F.3d 1162, 1174

(10th Cir. 2002) (quoting Brecht v. Abrahamson, 507

U.S. 619, 637 (1993)); see also Hain v. Gibson, 287

F.3d 1224, 1239 (10th Cir. 2002).

This case presents no such barriers to the Court’s

consideration of the question presented and, by

contrast, provides a vehicle for the Court to address

the panoply of questions relevant to the conflict and

confusion in the lower courts.

14

Il. The Eighth Amendment Does Not Erect a

Per Se Bar Against Victim Sentencing

Recommendations in a Capital Case.

This Court can resolve the conflict in the lower

courts and eliminate the confusion in the law with a

straightforward clarification: the holding in Payne uv.

Tennessee that “the Eighth Amendment erects no

per se bar” against victim statements to the jury

includes statements about the appropriate sentence.

501 U.S. at 827. “There is no reason to treat such

evidence differently than other relevant evidence is

treated.” Jd. This reading would be well in line with

this Court’s Eighth Amendment jurisprudence.

This Court has long recognized that the Eighth

Amendment’s prohibition on cruel and _ unusual

punishment “is not fastened to the obsolete, but may

acquire meaning as public opinion becomes enlight-

ened by a humane justice.” Weems v. United States,

217 U.S. 349, 378 (1910). Further, the Eighth

Amendment’s prohibition against cruel and unusual

punishment “draw(s] its meaning from the evolving

standards of decency that mark the progress of a

maturing society.” Trop v. Dulles, 356 U.S. 86, 101

(1958) (plurality opinion). “Evolving standards of

decency that mark the progress of a maturing society”

recognize that victims, like defendants, should be

fully heard at sentencing.

15

A. Fairness to Victims at Sentencing is

Critical to the Administration of Jus-

tice.

The cornerstone of this Court’s decision to over

rule Booth (and the follow-on decision in Gathers) was

fairness — fairness to the victim and fairness in the ad-

ministration of justice. The per se bar to victim im-

pact statements erected by Booth “unfairly weighted

the scales in a capital trial.” Payne, 501 U.S. at 822.

In Payne, this Court noted that a litany of

persons — the defendant’s girlfriend and parents,

and even a psychologist — testified favorably about

the defendant during sentencing, id. at 825-26, while

very little was allowed to be said about the victim. Jd.

at 826. The fact that this litany of the defendant's

family and friends were testifying in a capital

sentencing hearing also makes plain that the defen-

dant’s witnesses were implicitly (and perhaps even

explicitly) offering their opinion on the appropriate

sentence — i.e., that the defendant should not receive

a capital sentence.

In Payne, this Court recognized the manifest

unfairness of the per se bar erected by Booth and

quoted the Tennessee Supreme Court approvingly:

It is an affront to the civilized members of

the human race to say that at sentencing in

a capital case, a parade of witnesses may

praise the background, character and good

deeds of Defendant (as was done in this

case), without limitation as to relevancy, but

nothing may be said that bears upon the

16

character of, or the harm imposed, upon the

victims.

Id. at 826 (quoting State v. Payne, 791 S.W.2d 10, 19

(Tenn. 1990)).

During the penalty phase of a capital trial, Utah

law specifically affords the defendant a right of

allocution. See Utah Code Ann. § 76-3-207(2)(b). This

right of allocution permits not only the defendant, but

also his family, to recommend a sentence to the jury.

Utah law regarding defendant allocution is similar to

those in the vast majority of states, as “courts regu-

larly allow ‘pleas for mercy’ by defense witnesses.

Allocution, when the capital defendant himself ad-

dresses the sentencing authority on the question of

death, inevitably bears a close similarity as well.”

Wayne A. Logan, Opining On Death: Witness Sentence

Recommendations in Capital Trials, 41 B.C. L. REv.

917, 545-46 (2000).

In Utah, victims are statutorily and constitution-

ally afforded a similar right to allocute. See Utah

Const., art. I, § 28; Utah Code Ann. § 77-38-4(1)(b);

and Utah Code Ann. § 76-3-207." Despite this clear

expression of the view of Utah’s citizens, the Utah Su-

preme Court has now effectively limited the breadth

This statute was passed in the wake of Payne and after

the Utah Supreme Court raised questions about the admissibil-

ity of victim impact evidence in Utah capital cases as a matter of

state law. State v. Carter, 888 P.2d 629, 652-53 (Utah 1995),

discussed below. State v. Ott, No. 20040638, 2010 WL 11138 at *5

(Utah Jan. 5, 2010)

of victims’ nghts, based on its conclusion that “The

testimony offered at Mr. Ott’s sentencing falls square

ly within the categories of evidence identified a

inadmissible, in capital sentencing hearings, by

Payne and Booth.” State v. Ott, No. 20040638, 2010

WL 11138 at *9 (Utah Jan. 5, 2010). Thus, despite

this Court’s decision in Payne, fairness for victim

remains elusive because, regardless of similar legi:

latively crafted rights for defendants and victims,

court interpretation of those rights is creating vast

disparity in the meaning of each

B. State Law Has Evolved to Recognize

that Victim Allocution at Sentencing,

Including Sentencing Recommenda-

tions, is a Necessary Component of

Fairness and Justice.

States across the country recognize the im

portance of victims being given the opportunity to

speak freely at sentencing. “The constitutions or

statutes of forty states either explicitly or implicitly

grant victims the right to give recommendations at

sentencing. Twenty-three of these states grant vic

tims the constitutional mght to address the sentenc-

ing authority. Seventeen states do not have the right

in their constitutions but grant the right by statute.”

As noted above, Utah is among the states providing

See Douglas E. Beloof, Constitutional Implications of

Crime Victims as Participants, 88 CORNELL L. REV. 282, 286-87

(2003): see also id. at 301-05 (collecting authorities)

| .

victims 1n capital cases with the right to be heard at

entencing. Likewise, federal law entitles victims to

“make a statement or present any information in re

lation to the sentence.” Fed. R. Crim. Proc. 32(cX3)E)

sy overwhelmingly passing legislation allowing

victims to speak freely at sentencing, states across the

country are recognizing a basic principle — that victim:

are affected by the underlying crime and therefore

should, like the defendant, have an unfettered voice at

sentencing. As Justice O’Connor observed,

The Crime Victims’ Rights Act, 18 U.S.C. § 3771(a), alse

requires that victims be given the right to be reasonably heard

at sentencing. 18 U.S.C. § 3771(a)(4). Congress intended thi

right to include the right to give a sentencing recommendation

150 Cong. Rec. 52468 (daily ed. Apr. 22, 2004) (statement of Sen

Kyl) (“When a victim invokes this right [to be heard) during plea

and sentencing proceedings, it is intended that he or she bi

allowed to provide all three types of victim impact — the char

acter of the victim, the impact of the crime on the victim, th:

victims’ family and the community, and sentencing recommen

dations.”); see also id. (statement of Sen. Feinstein) (“The victim

of crime, or their counsel, should be able to provide any infor

mation, as well as their opinion, directly to the court concerning

the release, plea, or sentencing of the accused.”

Social scientists have noted the “secondary harm” that

may befall victims of crime when they feel they are not piven a

meaningful role tn the criminal justice process. See, e.g., Dean G

Kilpatrick & Randy K. Otto, Constitutionally Guaranteed

Participation in Criminal Proceedings for Victims: Potential

Effects on Psychological Functioning, 34 Wayne L. Rev. 7, 22-25

1987) (describing victims’ further victimization by the criminal

justice system); Uli Orth, Secondary Victimization of Crime

Victims by Criminal Proceedings, 15 Social Justice Research

313, 314 (2002) (noting that “secondary victimization” by the

(Continued on following page)

19

The Eighth Amendment stands as a shield

against those practices and punishments

which are either inherently cruel or which so

offend the moral consensus of this society as

to be deemed “cruel and unusual.” Certainly

there is no strong societal consensus that a

jury may not take into account the loss suf-

fered by a victim’s family or that a murder

victim must remain a faceless stranger at

the penalty phase of a capital trial. Just the

opposite is true. Most states have enacted

legislation enabling judges and juries to con-

sider victim impact evidence.

Payne, 501 U.S. at 831 (O’Connor, J., concurring)

(internal quotations omitted).

The only barrier in the way to fully effectuating

the victim’s right to freely speak at sentencing is the

confusion left by the wake of this Court’s dictum in

Payne. The Court in this case can ensure that victims’

rights, as they have been codified across the nation,

are given their full meaning.

criminal justice system can negatively influence victims’ “self-

esteem, faith in the future, trust in the legal system, and faith in

a just world”). This secondary harm is felt most acutely when

the victim perceives that she has been treated poorly in relation

to the defendant. See Task Force on the Victims of Crime and

Violence, Executive Summary: Final Report of the APA Task

Force on the Victims of Crime and Violence, 40 Am. Psychologist

107, 109 (1985) (noting secondary harm occurs because the

victim “perceives that the ‘system’s resources are almost entirely

devoted to the criminal, and little remains for those who have

sustained harm at the criminal’s hands’ ”).

20

C. Any Danger of Prejudice from Victim

Allocution that Includes a Sentencing

Recommendation Can be Tempered by

the Use of Evidentiary Rules and Does

Not Require a Per Se Bar.

Courts in non-capital cases clearly recognize that

victims, like defendants, should have the right to

speak freely at sentencing. In fact, as noted above, no

court has held that the Constitution prohibits victims

from opining on the appropriate sentence in non-

capital cases.”

While death is different, no salient differences

distinguish capital and non-capital cases when it

comes to the victim’s right to make a statement at

sentencing. Ultimately, any Constitutional rationale

for excluding certain types of victim impact evidence

in capital cases would turn on the possibility of

‘ , ‘ 20 ;: 8

prejudice to the jury. Notably, social science research

“directly contradicts the assumption that jurors are

readily influenced, much less prejudiced, by partici-

pant recommendations.”

Moreover, the evidentiary rules, under which

“courts routinely exclude evidence that is unduly

inflammatory,” Payne, 501 U.S. at 831 (O’Connor, J.,

’’ Beloof, supra note 16, at 289 n.51.

” Td. at n.60.

*“ Id. (citing Theodore Eisenberg et al., Victim Character-

istics and Victim Impact Evidence in South Carolina Capital

Cases, 88 CORNELL L. REv. 306, 340 (2003)).

concurring), can contain any risk that a victim’s

sentencing recommendation to a capital jur>’ would be

unduly prejudicial. Similarly, the Due Process Clause

controls the risk of prejudice in cases where “a wit-

ness’ testimony or a prosecutor’s remark so infects

the sentencing proceeding as to render it fundamen-

tally unfair.” Jd.

No justification exists to single out victim opin-

ions about the appropriate sentence for a per se bar.

The Oklahoma Court of Criminal Appeals has recog-

nized the lack of logic and unfairness in singling out

victim sentencing opinions for per se treatment and

allows “a simple statement of the recommended

sentence without amplification.” A per se bar to all

victim capital sentencing recommendations is unnec-

essarily broad given the ability of the trial court to

properly focus the jury’s deliberations and maintain

courtroom decorum through the use of instructions.”

¢—_______—__-

“ Conover v. State, 933 P.2d 904, 921 (Okla. Crim. App

1997).

“ In this case, the Utah Supreme Court never addressed

whether the victims’ family could give some limited form of

opinion about the crime or the sentence. Instead, it flatly held

that the Constitution (as interpreted by this Court in Booth and

Payne) barred any opinion evidence whatsoever. Consequently,

this Court does not have a record before it of how rules and court

instructions can properly contain any risk of prejudice.

9)

CONCLUSION

For the foregoing reasons, and for those provided

by Petitioner, the Court should grant the petition for

certiorar.

Respectfully submitted,

PAUL G. CASSELL

(Counsel of Record)

S.J. QUINNEY COLLEGE OF LAW

AT THE UNTVERSITY OF UTAH*

332 S. 1400 E., Room 101

salt Lake City, UT 84112

(801) 585-5202

cassellp@law.utah.edu

MARGARET GARVIN

ALISON WILKINSON

NATIONAL CRIME VICTIM LAW

INSTITUTE AT LEWIS &

CLARK LAW SCHOOL’®

310 SW 4th Ave., Suite 540

Portland, OR 97204

(503) 768-6819

Counsel far Amicus Curiae

*Law Schools are not amicu

and are listed for location

purposes only

Date: November 12, 2010