Amicus Curiae Brief — New York v. Mateo

~, Supreme Court, U.8.

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L J JUN 17 2004

No. 03-1570 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

THE STATE OF NEW YORK,

Petitioner,

vs.

ANGEL L. MATEO,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of the State of New York

BRIEF AMICUS CURIAE OF THE CRIMINAL

JUSTICE LEGAL FOUNDATION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf-org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. When a federal constitutional question presented in a

state criminal case is decided in a technically separate pretrial

proceeding and not reconsidered by the state appellate courts on

appeal from the final criminal judgment, does this Court have

jurisdiction to review the question on that appeal?

2. Does a state statute which forbids a guilty plea to capital

murder, but makes an exception when the defendant, the

prosecutor, and the court all agree on the plea and to a sentence

less than death, violate the rule of United States v. Jackson, 390

U. S. 570 (1968)?

3. If so, should Jackson be overruled or declared inappli-

cable to post-Furman statutes?

(i)

[

f

TABLE OF CONTENTS

er ere i

ID ovo nc cvvceesseedvceseuswcecees IV

MOTOR OT GIMCUS CUTIGE 26.6 cece cece ssencess 1

Summary of facts, statutes, and case .................. 2

SE ee 3

et aks 2 0G iw ne se ia VaR eas Ye eS ee awe 4

I

The jurisdictional objection raised by petitioner is,

by itself, worthy of this Ceurt’s review .............. 4

II

The state court’s decision in this case was constrained by

an ill-considered summary reversal issued 33 years ago,

but which is still binding precedent ................ 10

Il

Jackson’s uncertain scope continues to cause damage to

this day, inhibiting reforms with a shadow of

ee 14

a a a ik wy 9 ke aire oie ia eg ee 16

SE ER arene eee rer ee aera A-1

(iii)

iV

TABLE OF AUTHORITIES

Cases

Arizona v. Evans, 514 U.S. 1, 131 L. Ed. 2d 34,

pee eR | eer errr rere 14

Atkinson v. North Carolina, 403 U. S. 948,

29 L. Ed. 2d 859, 91 S. Ct. 2283 (1971) ......... 10, 13

Baldwin v. Reese, 541 U.S. __ (No. 02-964,

Pa I 6a es Ss ee Ae a 9

Bivens v. Six Unknown Fed. Narcotics Agents,

403 U. S. 388, 29 L. Ed. 2d 619,

ee 8 Pee rr eT Terre rT ree 11

Blackledge v. Allison, 431 U. S. 63, 52 L. Ed. 2d 136,

oe Bg. Rr ee ee re 15

Bordenkircher v. Hayes, 434 U. S. 357,

54 L. Ed. 2d 604, 98 S. Ct. 663 (1978) .......... 5 mY.

Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274,

eo Be | Peer Seer ee rrr rr ee ere 11

Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982,

Pe es ee PEE 6 awa e sakes eeendigussiennns 11

Cox Broadcasting Corp. v. Cohn, 420 U. S. 469,

43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975) ...........-. 6

Edelman v. Jordan, 415 U. S. 651, 39 L. Ed. 2d 662,

of ee gt ne re 13

Edwards v. Carpenter, 529 U. S. 446, 146 L. Ed. 2d 518,

oe ee Re | rrr ae 12

Elk Grove Unified School District v. Newdow,

542 U.S. __ (No. 02-1624, June 14, 2004) .......... 14

Ex parte Bollman, 4 Cranch (8 U. S.) 75,

re rrr er ean 5

Fisher v. District Court of Sixteenth Judicial Dist.

of Mont., 424 U. S. 382, 47 L. Ed. 2d 106,

Pe BD. Oe, BIS I x 6 65 50 4K bes ees eee eaeene 6

Florida v. Thomas, 532 U. S. 774, 150 L. Ed. 2d 1,

Bae OU, FO ID nox oo in chk cas anensuccseeues 9

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

of Rb eee Ti.) rer ewer me 11, 16

Griffith v. Kentucky, 479 U. S. 314, 93 L. Ed. 2d 649,

OOF ©. GA, Fe 6 oiinvansscucheaeae a. 14

Hathorn v. Lovorn, 457 U. S. 255, 72 L. Ed. 2d 824,

SCs . CR, BUR) Clee + vs doc eceiveyesse 8

Hicks v. Miranda, 422 U. S. 332, 45 L. Ed. 2d 223,

Fo DS. CY, TIO ATS) so 6 kes 6d 4500 en eee, 13

Hunter v. Bryant, 502 U. S. 224, 116 L. Ed. 2d 589,

E52 BS. CO SHO CISSE) sg x x x nsw cwncouweeeeeessees 13

Johnson v. California, 541 U.S. __ (No. 03-6539,

DEY 2, BOGE on ved avessceduceaveeee 9

Lowenfield v. Phelps, 484 U. S. 231, 98 L. Ed. 2d 568,

WOW &. C0, SOI SD iv cc cre bccus vuesbauee ue 2

Marbury v. Madison, 1 Cranch (5 U. S.) 137,

re Ek errr, Pere rre eo 5

Maryland v. Dyson, 527 U. S. 465, 144 L. Ed. 2d 442,

SEP D. Oh. Be Gee os ooo 00 dendcaeneneee eee 13

Matter of Hynes v. Tomei, 92 N. Y. 2d 613,

706 N. E. 2d 1201 (1998) .............. 3, 5, 10, 12, 13

vi

Matter of Relin v. Connell, 251 App. Div. 2d 1041,

G74 He. FT. &, Be Wie Cee 0 cnc kenessakasconesens 3

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

OGD. Ch, GE CPU 0 600 conn teeeseaseeeeneses 11

New York ex rel. Bryant v. Zimmerman, 278 U. S. 63,

73 L. Ed. 2d 184, 49 S. Ct. 61 (1928) ..... ccc eee eee’ 6

Osborne v. Ohio, 495 U. S. 103, 109 L. Ed. 2d 98,

15GS. Co SOE Cire ovo cceeeces ctrapbueuceveted 9

O’Sullivan v. Boerckel, 526 U. S. 838, 144 L. Ed. 2d 1,

bee SOR ff.) Pe ee ee 9

Parish v. Fulcomer, 150 F. 3d 326 (CA3 1998) ......... 10

Parker v. North Carolina, 397 U. S. 790,

25 L. Ed. 2d 785, 90 S. Ct. 1458 (1970) ......... 12, 13

People v. Collins, 26 Cal. 4th 297,

109 Cal. Rptr. 2d 836, 27 P. 3d 726 (2001) .......... 15

Reece v. Georgia, 350 U. S. 85, 100 L. Ed. 77,

FOG, CO. ROE CURSE oon 0nnespinsece eee 8

Rescue Army v. Municipal Court of Los Angeles,

331 U.S. 549, 91 L. Ed. 1666, 67 S. Ct. 1409

CIDEF) occ cvcveseuseuves=4a5es eee 5, 6, 7

State v. Atkinson, 275 N. C. 288,

167 S. BH. SSO CUS oc ee venice geeueweseneae 12

State v. Peele, 274 N. C. 106, 161 S. E. 2d 568 (1968) ... 12

United States v. Jackson, 390 U. S. 570, 20 L. Ed. 2d 138,

88 S. Ct. 1209 (1968) ........ cess eee 3, 10, 11, 12, 14

United States Constitution

U. 3. Comet... AmiGl: 66 os accu eesedbeeeenee ee 14

Vii

United States Statute

ey a EE fc koe code Se ks bee cee 11

State Constitution

ae? 8 eer eee 2

State Statutes

Ny. ¥. Comm, Poos. Law OZIB. 1G... ww cc ccovcccccveccees 2

N. Y. Crim. Proc. Law § 220.30......... 0... cc eee eeee 2

N. ¥. Cotm. Pros. Law § 290.40... ...cccccccccccccecs 2

N. ¥. Crim. Pooe. Law § 400.27 ......cccccccccccvcccs 2

Wee Wc WUE CNET $6 cob 0 00k wok c0cedadendusens 2

Rule

8 re ns 10

Treatise

5 W. LaFave, J. Israel, & N. King, Criminal Procedure

SP Ss wher baats Booed bese 15

Miscellaneous

B. Boskey & E. Gressman, The Supreme Court Bids

Farewell to Mandatory Appeals,

a A SE ono od dda bad enasevesneeaks cs 7

Hoffman, Kahn, and Fisher, Plea Bargaining in the

Shadow of Death, 69 Fordham L. Rev. 2313 (2001) ... 11

R. Stern, E. Gressman, S. Shapiro, & K. Geller,

Supreme Court Practice (9th ed. 2002) ............ 7,8

oe

IN THE

Supreme Court of the United States

THE STATE OF NEW YORK,

Petitioner,

VS.

ANGEL L. MATEO,

Respondent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)! is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tion of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

In this case, the highest court of a state felt compelled to

declare the state’s death penalty law unconstitutional in part and

overturn well-deserved sentences of multiple murderers, based

on an ill-considered summary disposition by this Court 33 years

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

ago. Further, a dubious precedent of this Court casts a shadow

over efforts to reform plea-bargaining. These results are

contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS, STATUTES, AND CASE

On November 2, 1996, Angel Mateo kidnapped and

murdered Juan Rodriguez-Matos, a mentally irnpaired young

man whom Mateo thought might have information on the

whereabouts of Mateo’s estranged girlfriend. This murder was

part of a month-long spree of crimes. Pet. for Cert. 3-4.

In New York’s capital punishment ‘aw, the constitutionally

required narrowing of the death-eligible class is built into the

definition of first-degree murder. See N. Y. Penal Law

§ 125.27(1)(a)*; see also Lowenfield v. Phelps, 484 U. S. 231,

246 (1988) (holding that this is a constitutionally permitted

method of narrowing). Murder in the course of a kidnapping is

one of the circumstances that will raise an intentional murder

to first degree, and hence make the defendant eligible for the

death penalty. N. Y. Penal Law § 125.27(1)(a)(vii). If the

prosecutor has given notice of intent to seek the death penalty,

see N. Y. Crim. Proc. Law (“CPL”) § 250.40, the jury deter-

mines the penalty by weighing the aggravating and mitigating

factors. CPL § 400.27(11)(a). The aggravating factors are the

eligibility factors from the guilt phase plus certain prior

convictions. CPL § 400.27(3), (7).

The New York Constitution forbids jury waivers in capital

cases. N.Y. Const., Art. I, §2. By statute, murder defendants

are forbidden to plead guilty to first-degree murder except with

the consent of both the court and the prosecution and with a

stipulated sentence less than death. CPL §§220.10(5)(e),

220.30(3)(b)(vii).

2. The pertinent New York statutes are printed in the Appendix to this

brief.

ca PATE NER IAT REAL NTE OT a —

Mateo was indicted for first-degree murder. The trial court

held that the plea statutes were unconstitutional under United

States v. Jackson, 390 U. S. 570 (1968) because of the excep-

tion clause. The district attorney sought a writ of prohibition.

See Matter of Relin v. Connell, 251 App. Div. 2d 1041, 674

N. Y. S. 2d 192 (1998).> The Appellate Division denied the

writ but converted the proceeding into a declaratory judgment

action and declared that the statute was constitutional. Ibid

The New York Court of Appeals consolidated its review of this

decision with a similar case from another division and reversed. ;

It held that the plea provisions were invalid but severable.

“Under the resulting statute, a defendant may not plead guilty

to first degree murder while a notice of intent to seek the death

penalty is pending.” Matter of Hynes v. Tomei, 92 N. Y. 2d

613, 629, 706 N. E. 2d 1201, 1208-1209 (1998).

The trial was not stayed during these proceedings. Mateo

was convicted on December 3, 1998, and sentenced to death on

December 16, 1998, six days before the Court of Appeals’

decision. People v. Mateo, App. to Pet. for Cert. 9-10. Mateo

appealed directly to the Court of Appeals. See id., at 1. Given

its prior decision in Hynes, the Court of Appeals determined

that reversal of the death sentence was required by the hypo-

thetical possibility that the defendant might have sought to

avoid the death penalty by pleading guilty. Jd., at 10. The fact

that both parties had unequivocally rejected the sentence

bargain that was a statutory prerequisite to such a plea, see Pet.

for Cert. 5-6, was not mentioned.

SUMMARY OF ARGUMENT

Respondent has raised a question regarding this Court’s

jurisdiction that is important and unresolved, and on'y this

Court can resolve it. He claims that whenever this Court has

3. Relin was the district attorney, and Connell was the trial judge. Mateo

was an additional respondent.

jurisdiction to review an issue decided before a criminal trial in

a nominally separate action, it necessarily /acks jurisdiction to

review that issue on appeal from the final criminal judgment.

That conclusion does not follow, but the unsettled state of the

law on this point causes continuing problems for both the Court

and counsel.

The state court in the present case rejected an argument that

United States v. Jackson was distinguishable bi:ed on an

unexplained summary disposition by this Court 33 years ago in

Atkinson v. North Carolina. ‘That summary disposition was ill-

considered, because *t did not meet this Court’s criteria for

summary disposition. Even so, it was binding on the state

court. This is not a case where a state court has simply erred on

a federal question. It is a case where that error was mandated

by an old, improvident action of this Court which has never

been corrected.

The continuing effect of Jackson is much broader than its

prohibition of one particular, rare type of statute. The broad

language of that opinion and the lack of resolution with the

seemingly contrary results of later cases cast a shadow of

uncertainty over attempts to control pleas and plea-bargaining

in order to achieve more uniform and even-handed justice.

ARGUMENT

I. The jurisdictional objection raised by petitioner is,

by itself, worthy of this Court’s review.

Respondent Mateo claims that this Court lacks jurisdiction

to review the question presented at this stage of the proceedings

and that the question was only reviewable in this Court at an

earlier stage. See Respondent’s Brief in Opposition (“Opp.”)

8-9. Amicus CJLF submits that the jurisdictional question

raised by Respendent is an important one, unresolved to date,

which can only be resolved by this Court. The jurisdictional

question, by itseif, is worthy of this Court’s review.

oy

Respondent contends that the decision of the New York

Court of Appeals at the previous stage of this litigation was a

final judgment for the purpose of defining this Court’s jurisdic-

tion to review the issue at that time, and therefore this Court

does not have jurisdiction to review it now. See ibid. The

_ premise of this argument is doubtfu!. Much more importantly,

thowgh, the conclusion does not follow.

In the previous stage of this case, the Appellate Division

decided a federal constitutional question in a proceeding that

was technically a separate, original action but was in substance .

a review ofa ruling of the trial judge in the criminal case. That

decision was then reviewed by the Court of Appeals. This

mode of proceeding is neither novel nor unusual, and this Court

has a long history of looking past the form and considering the

substance when determining its own jurisdiction.

Nearly two centuries ago, a defendant in a pending federal

prosecution for treason petitioned this Court for an original writ

- Of habeas corpus. See Ex parte Bollman, 4 Cranch (8 U. S.) 75

(1807). Under tiie then-recent decision of Marbury v. Madison,

1 Cranch (5 U. S.) 137 (1803), this Court had no jurisdiction to

issue an original writ to an executive officer. Despite the case

being original in form, the Bollman Court decided it was

appellate in reality, revising the decision of the committing

court. 4 Cranch, at 100-101.

Similarly, Matter of Hynes v. Tomei, 92 N. Y. 2d 613, 705

N. E. 2d 1201 (1998) was a separate proceeding in form, but in

reality it was an interlocutory appeal of rulings in the underly-

ing criminal cases, one of which was Mateo’s. Respondent

cites Rescue Army ~. Municipal Court of Los Angeles, 331

U.S. 549, 553-555 (1947) for the proposition that this “separate

proceeding” form, and only the form, gave this Court jurisdic-

tion to review the issue at that stage. See Opp. 8. Rescue Army

does not go that far.

In Rescue Army, defendants facing trial in a criminal case

petitioned the state appellate court for a writ of prohibition,

contending the trial court had no jurisdiction because the

ordinance was unconstitutional. 331 U. S., at 550, 552. A

ruling in the petitioners’ favor, finding the statutes unconstitu-

tional, would have ended the criminal action. See id., at 567-

568. Similarly, in the other case cited by Respondent, New

York ex rel. Bryant v. Zimmerman, 278 U. S. 63 (1928), pretrial

habeas corpus was used for the same purpose. See Rescue

Army, supra, at 566-568. Both of these cases fall into the

fourth category of Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 482-483 (1975), “where reversal of the state court on the

federal issue would be preclusive of any further litigation on the

relevant cause of action rather than merely controlling the

nature and character of . . . the state proceedings still to come.”

This is because of the effect, not the form, of the judgment at

issue. This is how the Court has understood Rescue Army in

the years since it was decided. “A judgment that terminates

original proceedings in a state appellate court, in which the only

issue decided concerns the jurisdiction of a lower state court,

is final, even if further proceedings are to be had in the lower

court.” Fisher v. District Court of Sixteenth Judicial Dist. of

Mont., 424 U. S. 382, 385, n. 7 (1976) (emphasis added). If

Rescue Army stood for as broad a proposition as Respondent

contends, the italicized clause in this passage would not be

there.

The “final judgment” status of Hynes was a more difficult

question than Respondent would have the Court believe.

Indeed, as the Court has noted more than once, these questions

are frequently difficult. See, e.g., Cox Broadcasting, 420 U.S.,

at 478, n. 7. That is why the second step of Respondent’s

argument presents the much more important question. If this

Court does have jurisdiction to review a judgment which is a

separate proceeding in form but an interlocutory appeal in

practice, does it follow that the Court does not have jurisdiction

to review the same question on appeal from the final judgment

in the underlying action?

Rescue Army strongly implies that the answer is no. At the

time of that decision, cases challenging the constitutionality of

statutes came under this Court’s mandatory appeal jurisdiction

and not the discretionary certiorari jurisdiction. See B. Boskey

& E. Gressman, The Supreme Court Bids Farewell to Manda-

tory Appeals, 109 S. Ct. /09, 123 (1988). Even so, the Rescue

Army Court declined to decide the merits for prudential reasons.

331 U. S., at 584-585. “Our decision of course should be

without prejudice to any rights which may arise upon final

determination of the Municipal Court proceeding, relative to

review in this Court of that determination.” Id., at 584 (empha-

sis added). In other words, the Rescue Army Court held that it

had the power to decide the constitutionality of the ordinances

at the preliminary stage, but it declined to do so and stated that

it could review them after final judgment in the underlying

criminal action.

Respondent cites R. Stern, E. Gressman, S. Shapiro, and

K. Geller, Supreme Court Practice 159, 161 (9th ed. 2002)

(“Stern”) to support the proposition that this Court did have

jurisdiction to review Hynes. Opp. 9. Fair enough. But a few

pages earlier in the same treatise, these authors state that the

jurisdiction of this Court to review the same issue in the second

round is an important but unresolved question:

“The dilemma posed in such situations is one of the

unintended consequences of ascribing finality to the first of

two rulings by the highest state court. It is one thing to hold

that a litigant may seek early review of a state court deci-

sion because otherwise the federal constitutional issue

might disappear or be eroded. But it is quite a different

matter to hold that a litigant is precluded from review if,

having carefully preserved his constitutional claims on the

remand, he waits for the end of the state court litigation

before bringing his federal claims to the Supreme Court.

Finality is too practical a doctrine to be turned into such a

trap for litigants and such an erosion of the Court’s jurisdic-

tion to pass on substantial federal claims in state court

cases. Nothing in the Court’s decision in Cox, or related

cases, suggests that this result is mandated by the finality

doctrine, as now interpreted.

“Nevertheless, the Supreme Court has not yet supplied

a definitive answer to this question... . [PJending some

definite ruling on the matter, it is best to seek review of the

first judgment whenever its finality is a reasonable possibil-

ity, and, if unsuccessful, to bring up the second judgment

later.” Stern, supra, at 156.

The last sentence of this passage is sound advice for the

practitioner, but it generates unnecessary expense for the parties

and creates an institutional problem for this Court. In this

situation, two certiorari petitions are required where there

should be only one.

A regime of mutually exclusive jurisdiction—first stage or

second stage but not both—creates an additional problem for

the Court. As noted earlier, the finality of a state court judg-

ment at the first stage is often a close and difficult question.

But the process of sorting through the thousands of certiorari

petitions this Court receives each term, see id., at 58, does not

lend itself to deciding close and difficult questions at this stage.

Where the substantive question is “certworthy” but the finality

question is borderline, it would be better in most cases to deny

certiorari on the first round and take up the issue when it comes

back on an indisputably final judgment.

Respondent says that the New York courts could not revisit

the issue in the second round because the decision in the first

round was res judicata. Opp. 9. It is well settled that the

refusal of state courts to reconsider an issue under the law-of-

the-case doctrine does not preclude this Court’s review. See,

e.g., Hathorn v. Lovorn, 457 U.S. 255, 261-262 (1982); Reece

v. Georgia, 350 U. S. 85, 87 (1955). Does this Court’s

jurisdiction depend upon whether state practice gives a pretrial

writ decision res judicata effect as opposed to law-of-the-case

effect? That would require this Court to be familiar with the

practices of all 50 states in this regard, keep that information

current, and apply it when deciding whether to grant certiorari

in pretrial matters.’

Two simple rules would provide the clearest guidance for

counsel and place the least burden on the Court. First, a

decision which contemplates further proceedings in the state

courts is a final judgment reviewable in this Court if and only

if it fits within one of the four Cox Broadcasting categories,

regardless of the form of the proceeding. Second, this Court

always has jurisdiction to review federal questions on which the

judgment rests, if properly presented to the state court, regard-

less of the stage of the litigation in which the question was

decided.

The “properly presented” aspect of the second rule requires

a brief mention here. In Osborne v. Ohio, 495 U.S. 103, 123-

124 (1990), the defendant made his federal! claims in a pretrial

motion and received a definite ruling from the trial judge. The

fact that he did not make a pointless and repetitive objection on

the same ground when the jury was instructed did not bar this

Court’s review. “Were we to accept this position, we would

force resort to an arid ritual of meaningless form, . .. and would

further no perceivable state interest.” Jd. at 124 (internal

quotation marks omitted; ellipsis in original). So it is in this

case. A party must, of course, fairly present his claim to the

highest state court with jurisdiction to hear it, see e. g., Baldwin

v. Reese, 541 U.S.__ (No. 02-964, Mar. 2, 2004) (slip op., at

1), but repetitive submission to the same court is not required

in habeas corpus, see O'Sullivan v. Boerckel, 526 U. S. 838,

844 (1999), and it ought not be required on direct review. In

the present case, it makes no difference whether the People

renewed their Hynes argument to the Court of Appeals on

4. Regrettably, counsel cannot always be depended on to fully brief

jurisdictional issues. See, e.g., Florida v. Thomas, 532 U. S. 774, 777

(2001); Johnson v. California, 541 U.S. _ (No. 03-6539, May 3,

2004) (slip op., at 4) (per curiam).

10

appeal from the final judgment. Just as in Osborne, they had

made the argument, received the ruling, and preserved the issue

for this Court’s review.

The jurisdictional question in this case is, by itself, a

“compelling reason[ ]” to grant a writ of certiorari, see Supreme

Court Rule 10, postponing the jurisdictional question until the

case is fully briefed and argued.

II. The state court’s decision in this case was constrained

by an ill-considered summary reversal issued 23 years

ago, but which is still binding precedent.

When criminal defendants cite United States v. Jackson,

390 U. S. 570 (1968) most courts recognize that Jackson was

limited by later decisions and decline to extend it beyond its

facts. See, e.g., Parish v. Fulcomer, 150 F. 3d 326, 328 (CA3

1998). In an earlier stage of the present case, however, the New

York Court of Appeals extended Jackson well beyond its facts,

based on the unexplained summary disposition by this Court in

Atkinson v. North Carolina, 403 U.S. 948 (1971). See Matter

of Hynes v. Tomei, 92 N. Y. 2d 613, 624, 706 N. E. 2d 1201,

1205 (1998). This remarkable extension of a precedent which

has been universally understood to be limited demonstrates that

the scope of Jackson requires further definition, and, in

particular, that Atkinson must be reconsidered.

Jackson dealt with a seemingly straightforward federal

kidnapping statute that provided for the death penalty when the

victim was harmed “and if the jury shall so recommend... .”

390 U. S., at 571 (quoting 18 U. S. C. § 1201(a)). The defen-

dant’s contention was that the statute prohibited the death

penalty in any case where there was no guilt-phase jury, thereby

penalizing the defendant who elects to contest his guilt before

a jury. See id., at 571-572.

The Government suggested several ways this result could

be avoided. One was that a jury could be convened for the

11 :

penalty phase only. The Court held that such a procedure was

not legally authorized. See id., at 576-577.° Another sugges-

tion, particularly important to the present case, was that the

Court exercise its supervisory power to forbid acceptance of

guilty pleas and jury waivers in kidnapping cases subject to the

death penalty. Jd., at 584. The Court did not dispute that,

under this proposal, “no defendant tried under the federal

statute would be induced to forego a constitutional right.” Jbid.

However, the Court said, such a requirement must come from

the legislative branch and not the judiciary. See id., at 585.

Reading Jackson, it is striking how far the Court bent over

backwards to invalidate the death penalty portion of this statute.

The notion that Congress really intended to empower kidnap-

pers to unilaterally preclude the death penalty by pleading

guilty is preposterous on its face. In other contexts, the Court

has had no difficulty creating new procedures when necessary

to meet constitutional requirements. See, e.g., Miranda v.

Arizona, 384 U. S. 436 (1966); Boykin v. Alabama, 395 U. S.

238 (1969); Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971). One cannot help but suspect that the Jackson

Court’s real problem with this statute was that it imposed the

death penalty for a crime less than murder. Cf. Coker v.

Georgia, 433 U.S. 584 (1977). Perhaps the Court’s contrived

procedural conundrum was a device for avoiding that result

when it was not yet prepared to impose the substantive prohibi-

tion later adopted in Coker. Another possibility is that it was

simply part of the run-up to Furman v. Georgia, 408 U. S. 238

(1972). See Hoffman, Kahn, & Fisher, Plea Bargaining in the

Shadow of Death, 69 Fordham L. Rev. 2313, 2374-2375

(2001).

Whatever the motivation for the decision, Jackson’s

“impermissible burden” rationale, see 390 U. S., at 572, was

not carried to its logical limit. In Bordenkircher v. Hayes, 434

U. S. 357 (1978), the defendant faced a choice similar to that

5. Itisnow. See 18 U.S. C. § 3593(b)(2)(A).

12

faced by Jackson. He could plead guilty to charges punishable

by 2 to 10 years, or he could go to trial facing a possible life

sentence. See id., at 358-359; see also id., at 372 (Powell, J.,

dissenting) (citing Jackson). Even so, the Court held that the

prosecutor could legitimately “present[] the defendant with

[these] unpleasant alternatives ....” /d., at 365.

Unlike the statute in Jackson, the statute in the present case

does not authorize the defendant to unilaterally remove the

possibility of the death penalty by pleading guilty. Instead, the

statute does what the Jackson Court declined to do judicially

and said could only be done legislatively. That is, it forbids

guilty pleas so long as capital punishment remains a possible

sentence. See Hynes, 92 N. Y. 2d, at 622, 706 N. E. 2d, at

1204-1205, cf. Jackson, 390 U. S., at 585. The New York

statute requires the consent of the prosecutor, the approval of

the court, and a stipulated sentence less than death before a

guilty plea to the highest degree of murder can be accepted. In

other words, it requires a plea bargain.

These kinds of plea bargains are struck all the time. See,

e.g., Edwards v. Carpenter, 529 U.S. 446, 448 (2000). Their

validity is no longer subject to serious constitutional question.

The only thing the New York statute forbids is pleading guilty

without such a bargain.

North Carolina had a similar statute unti! 1969. See Parker

v. North Carolina, 397 U. S. 790, 792-793, n. 2 (1970). In

State v. Peele, 274 N. C. 106, 111, 161 S. E. 2d 568, 572

(1968), decided two months after Jackson, the North Carolina

Supreme Court considered Jackson and found the state statute

to be distinguishable on precisely these grounds. In State v.

Atkinson, 275 N. C. 288, 316, 167 S. E. 2d 241, 258 (1969), the

same court rejected a Jackson claim, relying on its prior

decision in Peele. The Parker Court evidently considered it an

open question whether the statute violated Jackson. “It may be

that under... . Jackson . . . it was unconstitutional to impose the

death penalty under the statutory framework which existed in

13

North Carolina at the time of Parker’s plea.” 397 U. S., at 794-

795 (emphasis added).

Yet despite language in Jackson supporting the distinction

and despite Parker’s implication that the question was open,

this Court summarily reversed in Atkinson. The order gave no

explanation except a citation to Jackson and another federal

case in which Jackson error was conceded. Atkinson v. North

Carolina, 403 U. S. 948 (1971). This summary action was

_ entirely uncalled for. Summary reversal is appropriate only

when it “does not decide any new or unanswered question of .

law, but simply corrects a lower court’s demonstrably errone-

ous application of federal law.” Maryland v. Dyson, 527 U.S.

465, 467, n.* (1999) (per curiam). In Atkinson, the North

Carolina Supreme Court decided a question that Jackson had

unambiguously left unanswered. Reversal of such a consid-

ered, reasonable decision warrants at least a per curiam

opinion, if not full briefing and argument.

The New York Court of Appeals held it was bound by

Atkinson and its companion cases. See Hynes, 92 N. Y. 2d, at

. 623-624, 706 N. E. 2d, at 1205-1206. When, and if, an issue

decided summarily by this Court returns here for decision, it is

well established that the previous summary disposition does not

carry the same precedential weight as a full opinion. See

Edelman v. Jordan, 415 U.S. 651, 671 (1974). That is not true

in any other court in the nation, however. “[T]he lower courts

are bound by summary decisions by this Court until such time

as the Court informs them that they are not.” Hicks v. Miranda,

422 U. S. 332, 344-345 (1975) (brackets and inner quotation

marks omitted); see also Hunter v. Bryant, 502 U. S. 224, 235

(1991) (per curiam) (Kennedy, J., dissenting).

It is one thing to say that an error by a state court that does

not affect other states is not worthy of this Court’s review. It is

quite another to say that this Court should turn its back on a

miscarriage of justice caused by its own improvident action of

33 years ago, summarily reversing a decision that was certainly

debatable among reasonable minds, and quite possibly correct.

14 |

ee

The issue presented by this case has never been decided by this

Court in a written opinion, and it was not decided in the state |

courts in an unfettered opinion, free of the dubious restraint of 1

Atkinson. The People of the State of New York have been

permanently denied justice in this matter, on an issue which has

never been properly considered.

Ill. Jackson’s uncertain scope continues to cause

damage to this day, inhibiting reforms with a shadow

of constitutional doubt.

Respondent maintains that reconsideration of United States

v. Jackson, 390 U. S. 570 (1968) is not necessary because of

“national conformity with Jackson ....” Opp. 9. This argu-

ment fails to appreciate the continuing damage caused by bogus

constitutional restrictions. The people of the several States

have the constitutional right to decide for themselves, through

the democratic process, all of the issues that are neither decided

directly by the Constitution nor assigned by the Constitution to

the federal government. U. S. Const., Amdt. 10. When a

precedent erroneously removes an issue from democratic

control, that precedent violates this right every day it remains

in effect. See Elk Grove Unified School District v. Newdow,

542 U.S. __ (No. 02-1624, June 14, 2004) (slip op., at 16)

(Rehnquist, C. J., concurring in the judgment).

When a legislative body considers a possible improvement

in criminal procedure, the possibility that a court might declare

it unconstitutional places a heavy weight on the anti-reform side

of the scale. The invalidation of a practice in widespread use

is a disaster. Under Griffith v. Kentucky, 479 U. S. 314, 322-

323 (1987) full retroactivity on direct appeal is a price that has

to be paid for the integrity of judicial rule-making. Perhaps so,

but it is an extremely heavy price nonetheless. States cannot

afford to be the laboratories of innovation that our federal

system envisions, see Arizona v. Evans, 514 U.S. 1, 8 (1995),

meee aca

eA A Da AE it TT A Oe Nl I Bt EE te tt tp

15

when the price of guessing wrong is the invalidation of judg-

ments by the thousands.

One example of this inhibitory effect will illustrate the

point. Plea bargaining is justified as a practical necessity, see

Blackledge v. Allison, 431 U.S. 63, 71 (1977). However, the

practice remains controversial, and there are good reasons to

abolish it if abolition can be made practical. See 5 W. LaFave,

J. Israel, & N. King, Criminal Procedure § 21.1(e)-(g), pp. 12-

23 (2d ed. 1999). When widely varying punishments are meted

out for the same conduct based on bargaining between individ-

ual prosecutors and defense attorneys, the potential for arbi-

trary, unequal dispensation of justice and mercy is obvious.

One possible solution would be to substitute jury waivers for

guilty pleas with a system giving concessions on the sentence

for those defendants willing to waive jury trial.° See id., at 22-

23. “But for this to be a viable alternative, it must appear . . .

that the Sixth Amendment right to jury trial is not absolute and

thus may be lawfully discouraged by such tendering of conces-

sions for its surrender.” Jd., at 23. The uncertain scope of

Jackson looms ominously over this proposal. A legislature

would be foolish to try it when the possibility exists of a

catastrophic invalidation of every criminal judgment in the

state. See, e.g., People v. Collins, 26 Cal. 4th 297, 306, 309, 27

P. 3d 726, 732-733 (2001) (holding, based in part on Jackson,

that the trial court cannot offer an incentive for jury waiver,

even though the prosecutor can).

Jackson is not, by its terms, limited to its specific facts. It

is written in sweeping language. To date there has been no

coherent explanation of why later cases that seem to come

within its language were decided differently. See 5 LaFave,

supra, at 34-35. Until that explanation is given, or until

6. Ideally, arbitrariness would be minimized with a statute providing a

uniform “discount” for all defendants who waive jury trial.

16

Jackson is simply overruled,’ the constitutional status of

attempts to bring greater uniformity to the granting of incen-

tives for pleas or waivers will remain in doubt. While that

status is in doubt, innovation is stifled.

CONCLUSION

The petition for writ of certiorari should be granted.

June, 2004

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

7. The result in Jackson need not be overruled. A statutory system that

empowered any defendant, no matter how heinous his crime, to

unilaterally preclude the death penalty by pleading guilty would be

arbitrary in violation of Furman v. Georgia, 408 U. S. 238 (1972).

SS ee

pT ee

TOES

°

—-

APPENDIX A

29 A gee RR

arene

New York Penal Law

§ 125.27 Murder in the first degree.

A person is guilty of murder in the first degree when:

1. With intent to cause the death of another person, he

causes the death of such person or of a third person; and

(a) Either:

(i) the intended victim was a police officer as defined in

subdivision 34 of section 1.20 of the criminal procedure law

who was at the time of the killing engaged in the course of ‘

performing his official duties, and the defendant knew or

reasonably should have known that the intended victim was

a police officer; or

(11) the intended victim was a peace officer as defined in

paragraph a of subdivision twenty-one, subdivision twenty-

three, twenty-four or sixty-two (employees of the division

for youth) of section 2.10 of the criminal procedure law

who was at the time of the killing engaged in the course of

performing his official duties, and the defendant knew or

reasonably should have known that the intended victim was

such a uniformed court officer, parole officer, probation

officer, or employee of the division for youth; or ©

(i1i) the intended victim was an employee of a state

correctional institution or was an employee of a local

correctional facility as defined in subdivision two of section

forty of the correction law, who was at the time of the

killing engaged in the course of performing his official

duties, and the defendant knew or reasonably should have

known that the intended victim was an employee of a state

correctional institution or a local correctional facility; or

(iv) at the time of the commission of the killing, the

defendant was confined in a state correctional institution or

was otherwise in custody upon a sentence for the term of his

natural life, or upon a sentence commuted to one of natural

life, or upon a sentence for an indeterminate term the

minimum of which was at least fifteen years and the

maximum of which was natural life, or at the time of the

commission of the killing, the defendant had escaped from

such confinement or custody while serving such a sentence

and had not yet been returned to such confinement or

custody; or

(v) the intended victim was a witness to a crime com-

mitted on a prior occasion and the death was caused for the

purpose of preventing the intended victim's testimony in

any criminal action or proceeding whether or not such

action or proceeding had been commenced, or the intended

victim had previously testified in a criminal action or

proceeding and the killing was committed for the purpose

of exacting retribution for such prior testimony, or the

intended victim was an immediate family member of a

witness to a crime committed on a prior occasion and the

killing was committed for the purpose of preventing or

influencing the testimony of such witness, or the intended

victim was an immediate family member of a witness who

had previously testified in a criminal action or proceeding

and the killing was committed for the purpose of exacting

retribution upon such witness for such prior testimony. As

used in this subparagraph “immediate family member”

means a husband, wife, father, mother, daughter, son,

brother, sister, stepparent, grandparent, stepchild or grand-

child; or

(vi) the defendant committed the killing or procured

commission of the killing pursuant to an agreement with a

person other than the intended victim to commit the same

for the receipt, or in expectation of the receipt, of anything

of pecuniary value from a party to the agreement or from a

person other than the intended victim acting at the direction

of a party to such agreement; or

(vii) the victim was killed while the defendant was in

the course of committing or attempting to commit and in

furtherance of robbery, burglary in the first degree or second

degree, kidnapping in the first degree, arson in the first

degree or second degree, rape in the first degree, sodomy in

the first degree, sexual abuse in the first degree, aggravated

sexual abuse in the first degree or escape in the first degree,

or in the course of and furtherance of immediate flight after

committing or attempting to commit any such crime or in

the course of and furtherance of immediate flight after

attempting to commit the crime of murder in the second

degree; provided however, the victim is not a participant in

one of the aforementioned crimes and, provided further that,

unless the defendant's criminal liability under this subpara-

graph is based upon the defendant having commanded

another person to cause the death of the victim or intended

victim pursuant to section 20.00 of this chapter, this

subparagraph shall not apply where the defendant's criminal

liability is based upon the conduct of another pursuant to

section 20.00 of this chapter; or

(viii) as part of the same criminal transaction, the

defendant, with intent to cause serious physical injury to or

the death of an additional person or persons, causes the

death of an additional person or persons; provided, how-

ever, the victim is not a participant in the criminal transac-

tion; or

(ix) prior to committing the killing, the defendant had

been convicted of murder as defined in this section or

section 125.25 of this article, or had been convicted in

another jurisdiction of an offense which, if committed in

this state, would constitute a violation of either of such

sections; or

(x) the defendant acted in an especially cruel and

wanton manner pursuant to a course of conduct intended to

inflict and inflicting torture upon the victim prior to the

victim's death. As used in this subparagraph, “torture”

means the intentional and depraved infliction of extreme

physical pain; “depraved” means the defendant relished the

infliction of extreme physical pain upon the victim evidenc-

ing debasement or perversion or that the defendant evi-

denced a sense of pleasure in the infliction of extreme

physical pain; or

(xi) the defendant intentionally caused the death of two

or more additional persons within the state in separate

criminal transactions within a period of twenty-four months

when committed in a similar fashion or pursuant to a

common scheme or plan; or

(xii) the intended victim was a judge as defined in

subdivision twenty-three of section 1.20 of the criminal

procedure law and the defendant killed such victim because

such victim was, at the time of the killing, a judge; or

(xiii) the victim was killed in furtherance of an act of

terrorism, as defined in paragraph (b) of subdivision one of

section 490.05 of this chapter; and

(b) The defendant was more than eighteen years old at the

time of the commission of the crime.

2. In any prosecution under subdivision one, it is an

affirmative defense that:

(a) The defendant acted under the influence of extreme

emotional disturbance for which there was a reasonable

explanation or excuse, the reasonableness of which is to be

determined from the viewpoint of a person in the defendant's

situation under the circumstances as the defendant believed

them to be. Nothing contained in this paragraph shall constitute

a defense to a prosecution for, or preclude a conviction of,

manslaughter in the first degree or any other crime except

murder in the second degree; or

(b) The defendant's conduct consisted of causing or aiding,

without the use of duress or deception, another person to

commit suicide. Nothing contained in this paragraph shall

constitute a defense to a prosecution for, or preclude a convic-

tion of, manslaughter in the second degree or any other crime

0 Ee

A-5

except murder in the second degree. Murder in the first degree

is a class A-I felony.

New York Criminal Procedure Law

§ 220.10 Plea; kinds of pleas.

The only kinds of pleas which may be entered to an

indictment are those specified in this section:

1. The defendant may as a matter of right enter a plea of ©

“not guilty” to the indictment.

2. Except as provided in subdivision five, the defendant

may as a matter of right enter a plea of “guilty” to the entire

indictment.

* a *

5. (e) A defendant may not enter a plea of guilty to the

crime of murder in the first degree as defined in section 125.27

of the penal law; provided, however, that a defendant may enter

such a plea with both the permission of the court and the

consent of the people when the agreed upon sentence is either

life imprisonment without parole or a term of imprisonment for

the class A-I felony of murder in the first degree other than a

sentence of life imprisonment without parole.

* * *

New York Criminal Procedure Law

§ 220.30 Plea; plea of guilty to part of indictment; plea covering

other indictments.

* * *

3. (b) (vii) A defendant may not enter a plea of guilty to the

crime of murder in the first degree as defined in section

125.27 of the penal law; provided, however, that a defen-

A-6

dant may enter such a plea with both the permission of the

court and the consent of the people when the agreed upon

sentence is either life imprisonment without parole or a

term of imprisonment for the class A-I felony of murder in

the first degree other than a sentence of life imprisonment

without parole.

New York Criminal Procedure Law

§ 250.40 Notice of intent to seek death penalty.

1. A sentence of death may not be imposed upon a defen-

dant convicted of murder in the first degree unless, pursuant to

subdivision two of this section, the people file with the court

and serve upon the defendant a notice of intent to seek the death

penalty.

2. In any prosecution in which the people seek a sentence of

death, the people shall, within one hundred twenty days of the

defendant's arraignment upon an indictment charging the

defendant with murder in the first degree, serve upon the

defendant and file with the court in which the indictment is

pending a written notice of intention to seek the death penalty.

For good cause shown the court may extend the period for

service and filing of the notice.

3. Notwithstanding any other provisions of law, where the

people file a notice of intent to seek the death penalty pursuant

to this section the defendant shall be entitled to an additional

sixty days for the purpose of filing new motions or supplement-

ing pending motions.

4. A notice of intent to seek the death penalty may be

withdrawn at any time by a written notice of withdrawal filed

with the court and served upon the defendant. Once withdrawn

the notice of intent to seek the death penalty may not be refiled.

A-7

New York Criminal Procedure Law

§ 400.27 Procedure for determining sentence upon conviction

for the offense of murder in the first degree.

1. Upon the conviction of a defendant for the offense of

murder in the first degree as defined by section 125.27 of the

penal law, the court shall promptly conduct a separate sentenc-

ing proceeding to determine whether the defendant shall be

sentenced to death or to life imprisonment without parole

pursuant to subdivision five of section 70.00 of the penal law.

Nothing in this section shall be deemed to preclude the people

at any time from determining that the death penalty shall not be

sought in a particular case, in which case the separate sentenc-

ing proceeding shall not be conducted and the court may

sentence such defendant to life imprisonment without parole or

to a sentence of imprisonment for the class A-I felony of

murder in the first degree other than a sentence of life imprison-

ment without parole.

* * *

3. For the purposes of a proceeding under this section each

subparagraph of paragraph (a) of subdivision one of section

125.27 of the penal law shall be deemed to define an aggravat-

ing factor. Except as provided in subdivision seven of this

section, at a sentencing proceeding pursuant to this section the

only aggravating factors that the jury may consider are those

proven beyond a reasonable doubt at trial, and no other aggra-

vating factors may be considered. Whether a sentencing

proceeding is conducted before the jury that found the defen-

dant guilty or before another jury, the aggravating factor or

factors proved at trial shall be deemed established beyond a

reasonable doubt at the separate sentencing proceeding and

shall not be relitigated. Where the jury is to determine sen-

tences for concurrent counts of murder in the first degree, the

aggravating factor included in each count shall be deemed to be

an aggravating factor for the purpose of the jury’s consideration

in determining the sentence to be imposed on each such count.

7. (a) The people may present evidence at the sentencing

proceeding to prove that in the ten year period prior to the

commission of the crime of murder in the first degree for which

the defendant was convicted, the defendant has previously been

convicted of two or more offenses committed on different

occasions; provided, that each such offense shall be either (i) a

class A felony offense other than one defined in article two

hundred twenty of the penal law, a class B violent felony

offense specified in paragraph (a) of subdivision one of section

70.02 of the penal law, or a felony offense under the penal law

a necessary element of which involves either the use or at-

tempted use or threatened use of a deadly weapon or the

intentional infliction of or the attempted intentional infliction of

serious physical injury or death, or (ii) an offense under the

laws of another state or of the United States punishable by a

term of imprisonment of more than one year a necessary

element of which involves either the use or attempted use or

threatened use of a deadly weapon or the intentional infliction

of or the attempted intentional infliction of serious physical

injury or death. For the purpose of this paragraph, the term

“deadly weapon” shall have the meaning set forth in subdivi-

sion twelve of section 10.00 of the penal law. In calculating the

ten year period under this paragraph, any period of time during

which the defendant was incarcerated for any reason between

the time of commission of any of the prior felony offenses and

the time of commission of the crime of murder in the first

degree shall be excluded and such ten year period shall be

extended by a period or periods equal to the time served under

such incarceration. The defendant's conviction of two or more

such offenses shall, if proven at the sentencing proceeding,

constitute an aggravating factor.

(b) In order to be deemed established, an aggravating factor

set forth in this subdivision must be proven by the people

beyond a reasonable doubt and the jury must unanimously find

such factor to have been so proven. The defendant may present

A-9

evidence relating to an aggravating factor defined in this

subdivision and either party may offer evidence in rebuttal.

Any evidence presented by either party relating to such factor

shall be subject to the rules governing admission of evidence in

the trial of a criminal action.

(c) Whenever the people intend to offer evidence of an

aggravating factor set forth in this subdivision, the people must

within a reasonable time prior to trial file with the court and

serve upon the defendant a notice of intention to offer such

evidence. Whenever the people intend to offer evidence of the

aggravating factor set forth in paragraph (a) of this subdivision,

the people shall file with the notice of intention to offer such

evidence a statement setting forth the date and place of each of

the alleged offenses in paragraph (a) of this subdivision. The

provisions of section 400.15 of this chapter, except for subdivi-

sions one and two thereof, shall be followed.

* * *

11. (a) The jury may not direct imposition of a sentence of

death unless it unanimously finds beyond a reasonable doubt

that the aggravating factor or factors substantially outweigh the

mitigating factor or factors established, if any, and unanimously

determines that the penalty of death should be imposed. Any

member or members of the jury who find a mitigating factor to

have been proven by the defendant by a preponderance of the

evidence may consider such factor established regardless of the

number of jurors who concur that the factor has been estab-

lished.