Petitioners Brief — McGautha v. California

Supreme Court brief1971

Ask Donna

What actually matters in this document.

Text

ILE COPY

NS_4 80

F Ds E. ROBERT SEAVER,

Supreme Court of the United States” =a

OCTOBER TERM, 1970

sino LOT PRINTED

a yoT PRINTED No. 203

DENNIS COUNCLE McGAUTHA,

Petitioner,

CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF CALIFORNIA

BRIEF FOR PETITIONER

HERMAN F. SELVIN

270 North Canon Drive,

Beverly Hills, California 90210

Attorney for Petitioner

_———

Washington, ©. C. - THIEL PRESS - 202 - 303-0825

(i)

TABLE OF CONTENTS

Page

OPINION BELOW ...---eeeeerecrecreceereccecees 1

JURISDICTION ...---- eee ere cree rceccecreereeees 2

NAL PROVISION AND

STATUTE INVOLVED .....------eeeeercrreeeeees 2

QUESTION PRESENTED .....cccceeccccccccevceee 5

STATEMENT OF THE CASE .....---+seeereerrreeee 5

1. The Crime and Sentence ......---+seeererercces 5

2. The Evidence and Instructions at the

Penalty Phase of the Trial ......---+++seeeerees 7

3. California’s Penalty-Imposition Procedure ......----- 10

4. Review of the Penalty......----eeseeeeeeereres 17

SUMMARY OF THE ARGUMENT ....-..---+++-++++: 17

I. California’s Procedure, By Which The Death

Penalty Is Imposed, Denied Petitioner Due

Process of Law, For It Subjected Him To

The Extreme Penalty As The Result Of A

Choice Not Required To Conform To

Standards Fixed By The Law, But Which

| Was Permitted By The State To Be Made In

Response To The Unguided And Unrestrained

Subjective Reactions Or Emotions Of A Jury .......-- 20

Il. California’s Procedure, In Respect Of Its

Vulnerability To The Requirements Of Due

Process, Is Materially Different From A

Procedure Whereby The Penalty Is Certainly

Imposed By Law... ...- eee eeceerceceeceecees 29

Ill. The Unconstitutionality Of The Present

Capital Sentencing Procedure In California

Requires Reconsideration By The State

Court To Determine Whether A Constitu-

tional Procedure Is Available And Applicable .

To POUMORES occ ccc ccc cccccsscscccccccecece 34

CONCLUSION

[an cae

(ii)

TABLE OF AUTHORITIES

Anderson, In re, 69 Cal.2d 613, 73 Cal. Rptr. 21,

OE. MOC OL GS Ak a's bho ei 6-0c.0.000 oS 10, 15, 17, 28

Andres v. United States, 330 U.S.740 ............... 29, 30

ee eT Te TT 31

Wartkus v. Miinols, 399 US.12) 2... ccc ccc ese, 21

Beagle v. Vasold, 65 Cal.2d 166, 53 Cal. Rptr. 129,

Debnn po MSR LETTE EEE OT TTC OPEL EET ae: 29

Boyce Motor Lines v. United States, 342 U.S. 337 ....... 23, 24

Clark v. State, 169 Ark. 717, 276S.W.849 ............. 32

Coe v. Armour Fertilizer Works, 237 US.413. ........... 22

Conra'ly v. General Construction Co., 269 U.S. 385 ........ 23

Davidson v. New Orleans, 96 U.S.97................... 21

Den ex dem. Murray v. Hoboken Land & Imp. Co.,

SPE, SCC CLG Shaan wah Kd 844 4 a 0000s cK Re 21

Duncan v. Louisiana, 391 US.145 ................... 22

Giaccio v. Pennsylvania, 382 US.399 ............. 20, 21, 24

Goldman v. Knecht, 295 F. Supp. 897 ................ 24, 25

Hawthorne v. State, 135 Ark. 247, 204 S.W. 841.......... 32

puommom ©. Lammy, SB UB. B42... ww ccc cccccs 23, 25

Hurtado v. California, 110 US.516 ...............2.. 21, 22

Jackson v. Bishop, 404 F.2d 571 ...............0005. 31

Kelley v. State, 133 Ark. 261,202 S.W.49 ............ 32, 33

Kemmler, Ex parte, 136 U.S. 436 ...........0.0..000005. 30

Leland v. Oregon, 343 US.790 ................0005. 30

Louisiana v. Resweber, 329 U.S. 459 ...............005. 22

Louisville & N.R.R. Co. v. Central Stock Yards, 212 U.S. 132.. 22

McGautha v. California, 70 Cal.2d 770, 76 Cal. Rptr. 434,

DE Cie sakeaeews 4 so-n4 6600s ee 6acanan i.

ST eR Do nn kan ek keds cscacseducue 22

Maxwell v. Bishop, 398 F.2d 138 ................. 30, 32, 33

Maxwell v. Bishop, No. 13, 0.T. 1969 ................ 31, 33

(iti)

vaxwell v. Bishop, __ U.S. _, 90 S.Ct. 1578 ......... 30, 34

omer v. Utah, 333 US.95 0.00... eee eee eee 23, 24

People v. Bollinger, 196 Cal. 191, 237 Pac.25 9 ........++- 11

people v. Borchers, 50 Cal.2d 321, 325 P.2d97 ........... 16

people v. Boss, 210 Cal. 245, 290 Pac. 881..........-+-+- 8

People v. Brice, 49 Cal.2d 434, 317 P.2d 961 ...........-. 10

people v. Friend, 47 Cal.2d 749, 306 P.2d 463 .......... passim

People v. Green, 47 Cal.2d 209, 302 P.2d 307 ..... 11, 15, 16, 32

y. Hamilton, 60 Cal.2d 105, 32 Cal. Rptr. 4,

earls ki KMa a aS WKN 904 X es na'n 10

People v. Hines, 61 Cal.2d 164, 37 Cal. Rptr. 622, 390

er eae k hse nkes ened xt 10, 13, 14

People v. Howk, 56 Cal.2d 687, 16 Cal. Rptr. 370,

ceca cbs nascksaeies 14

People v. Jones, 52 Cal.2d 636, 343 P.2d 577............ 10, 12

People v. Ketchell, 9 Cal.2d $03, 30 Cal. Rptr. 538,

RI SR ee ee rr 13, 15

People v. Leary, 105 Cal. 486, 39 Pac. 24 10

People v. Linden, 52 Cal.2d 1, 338 P.2d 397 .......... 11, 16, 17

People v. Lookadoo, 66 Cal.2d 307, 57 Cal. Rptr. 608,

Ne dd os wines sw ke a 7, 16

People v. Love, 56 Cal.2d 720, 16 Cal. Rptr. 777,

17 Cal. Rptr. 481, 366 P.2d 33,809 ............. 13, 14, 15

People v. Machado, 150 Cal. App. 2d 190, 309 P.2d 903 ..... 8

People v. Morse, 60 Cal.2d 631, 36 Cal. Rptr. 201,

oy as vinns takaee’ 9, 10, 13, 16, 26

People v. Nye, 71 Cal.2d __, 71 A.C. 376, 78 Cal. Rptr.

ESE ae nre 10, 12, 14

People v. Polk, 63 Cal.2d 443, 47 Cal. Rptr. 1,

SO re 10, 11, 14, 22

People v. Rittger, 54 Cal.2d 720, 7 Cal. Rptr. 901 .

eas cee cw kae eae

People v. Terry, 61 Cal.2d 137, 37 Cal. Rptr. 605,

UL cay k's eat 10, 13, 14

oreage ne

People v. Turville, 51 Cal.2d 620, 335 P.2d, 678 ........... 13

People v. Varnum, 61 Cal.2d 425, 38 Cal. Rptr. 881,

ett, MET ELE EEC S ET ETE ee ee re eee ee

(iv)

People v. Washington, 62 Cal.2d 777, 44 Cal. Rptr. 442,

if MST CET ET PES eee Pe eee rey Peer 8

Ro 1

eS eee 21

Ricks v. District of Columbia, 414 F.2d 1097 ......... 23, 24, 25

Robinson v. California, 370 U.S. 660 ...............2.., 30

Rudolph v. Alabama, 375 US.889 ................., 27, 30

Screws v. United States, 325 US.91 .............00005, 24

Sims v. Ryman, 405 P2649 2.0... cc ccc ccc cccnes 30, 32

Stewart v. State, 233 Ark. 458, 345 S.W.2d 472 ........... 32

Townsend v. Burke, 334 U.S. 736 .......... ccc cc ccccee 25

I TD 6 hic kn cucenccavannwc cane 30, 32

Twining v. New Jersey, 211 US.78 ............cccccee 21

United States v. Evans, 333 US. 483 .... 2... eee 25

Weems v. United States, 217 US.349 ............... 31, 34

8 SS eee 32

Witherspoon v. Illinois, 391 U.S.510................. 25, 28

Wright v. City of Montgomery, Ala., 406 F.2d 867 ......... 24

CONSTITUTION AND STATUTES

California Military and Veterans Code, 81670, 1672(a) ..... 4

ee ceca cake cake eesvaneee wank 4

PTT eee 4

EE 6 oko une cbeseeeaneeeneen 3

Cees Pees Cae, CRED ww ww ccc ccc cncncuass 3,8

ED i'n 6 cnn se ccbccnetuuesd@cuee 3, 10

California Penal Code, 8190.1 ............... 3, 6, 12, 33, 34

eee 4

California Penal Code, errr errr rey Tr ore 3

California Penal Code, eee ee ee ce 34

California Penal Code, eck ch en baeeeeer ee ne ee 4

California Penal Code, 61168 «5... 6s ee ee rere eee eeees 35

California Penal Code, $1181, subd. 6 «+--+ +--+ eee rers 16

California Penal Code, 81181, subd.7 «©. -----e ere errete 16

California Penal Code, part 3, title 1, chaps. OR caveeees: 34, 35

California Penal Code, 82900. ..--- +++ esse ercerrceee 35

California Penal Code, 82940... +--+ see eerecersees 35

California Penal Code, 83020 ..------eeeeeeeeeee ress 35

California Penal Code, $3040... -- 20 eeeeeeeeeeeees 35

California Penal Code, #3046... .-- 22s e seer reer sees 35

California Penal Code, 4500 ....-----e eee errcreeres 4

California Penal Code, 85077... +--+ esse reer eerste 35

California Statutes, 1957, vol. 2, chap. 1968, p. 3509 ....-- 3, 11

California Statutes, 1958, vol. 1, chap. 738, p. 2727 .------ 3

Delaware Laws, vol. 53, chap. enero 29

United States Code, title 28, §1257(3) .----------rrrree 2

United States Constitution, Fifth Amendment ......------- 22

United States Constitution, Eight Amendment .......------ 30

United States Constitution, Due Process Clause .... 20, 23, 24, 27

United States Constitution, Fourteenth Amendment .....-- 2, 5, 22

Vermont Stat. Ann., tit. 13, 82303 ...... oh epee uae 29

TEXTBOOKS AND LAW REVIEWS

California Law Review, vol. 52, p. 386 13

California Law Review, vol. 56, p. 1268 .....----++-+s++ 13

Harvard Law Review, vol. 62, p.77 .-----+-s+++00° 23, 25, 27

Harvard Law Review, vol. 83, p. 1173 29, 30

Journal of Criminal Law, Criminology and Police

Science, vol. 51, p. 317... eee cece reer eer se reese 29

RIOR NEY = POE TIRE oe Oe ne

;

(vi)

Kentucky Law Review, vol. 6, p. 107 oe eee ee eee eeee %6

University of Pennsylvania Law Review, vol. 101, p. 1099..... 30

University of Pennsylvania Law Review, vol. 108, p. 434 ..... 27

Virginia Law Review, vol. 24, p. GUE pica neessh ees kavcun 26

Wigmore, Evidence, 3d ed. vol. 7, p- 55, 81944 ...-. eee, 28

MISCELLANEOUS

California Jury Instructions, Criminal, p. Vii --------+-+--+- 6

California Jury Instructions, Criminal, p. Sr eer 6

California Jury Instructions, Criminal, P- Di ¢¢ckseeeeeaee 10

Magna Carta, art. 39, West’s Calif. Ann. Codes,

Constitution, vol. 3, p. 764... --- seer errr e ett tte 21

Model Penal Code, §210.6.....------eerrrreterrece: 27

Rules, Supreme Court of the United States, ule 26 .....00- 5

Standards Relating To Sentencing Alternatives and

Procedures (A.B.A. Project), 82.2 ..----+--srrrerrees 28

aA a wd a aanlialind ate ie Sania enShe tN

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 203

DENNIS COUNCLE McGAUTHA,

Petitioner,

CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

BRIEF FOR PETITIONER

Opinion Below

The opinion of the Supreme Court of California is re-

ported in 70 Cal.2d 770, 76 Cal. Rptr. 434, 452 P.2d 650.

There was no other opinion in the cause.

2] Ee

—

Jurisdiction

1. The jurisdiction of this Court is invoked on the ground

that there is brought here for review a final judgment of the

Supreme Court of California, the highest court of the State

in which a decision could be had, rendered in a cause in

which the validity of a State statute was drawn in question

on the ground of its being repugnant to the Constitution of

the United States; and in which there was drawn in question

a right, privilege and immunity claimed by the petitioner

under the Constitution of the United States. [A. 249, 265.

2. The statutory provision upon which that jurisdiction

rests is 28 U.S. Code, sec. 1257(3).

3. The time factors upon which that jurisdiction rests are:

The date of the judgment to be reviewed, as well as the

time of filing and entry, was April 14, 1969. A timely peti-

tion for rehearing was filed on April 29, 1969, and denied,

without opinion, on May 14, 1969. The judgment, there-

fore, became final on May 14, 1969. [A. 249, 266.] The

petition for certiorari was filed on June 21, 1969, and

granted on June 1, 1970.

Constitutional Provision and Statute Involved

1. The constitutional provision here involved is section i

of the Fourteenth Amendment to the Constitution of the

United States.

“‘All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.”

9. The statute involved is the Penal Code of the State of

California, sections 190 and 190.1, as amended. It may be

found in the official edition, as amended in 1957, in Cali-

fornia Statutes, 1957, vol. 2, chap. 1968, p. 3509; and, as

ded in 1959, in California Statutes, 1959, vol. 1, chap.

amen

738, p. 2727. At the time of the trial hereof, it read and

still reads as follows:

“$190. Every person guilty of murder in the first

degree shall suffer death, or confinement in the state

prison for life, at the discretion of the court or jury

trying the same, and the matter of punishment shall

be determined as provided in Section 190.1, and

every person guilty of murder in the second degree

is punishable by imprisonment in the state prison

from five years to life!*!

“190.1. The guilt or innocence of every person

charged with an offense for which the penalty is in

1 At all times material here, murder in the first degree and murder

in the second degree were respectively defined in Cal. Penal Code, as

follows:

“$187. Murder is the unlawful killing of a human being, with

malice aforethought.

sss

“4189. All murder which is perpetrated by means of a bomb,

poison, lying in wait, torture, or by another kind of willful,

deliberate, and premeditated killing, or which is committed

in the perpetration of, or attempt to perpetrate, arson, rape,

robbery, b » mayhem, or any act punishable under

Section 288 [lewd or lascivious acts upon the body of a child

under the age of 14 years] , is murder in the first degree; and

all other kinds of murders are of the second degree.

At the times material here “robbery” was defined as follows:

“§211. Robbery is the felonious taking of personal property

in the possession of another, from his person or immediate

sence, and against his will, accomplished by means of

orce or fear.

All section references are to the Penal Code of California, of which

there is no official edition, but which, in either West’s or Deering’s

annotated edition, is generally accepted by the Courts and Bar of

California as authentic.

the alternative death or imprisonment for life shajj

first be determined, without a finding as to penalty. (21

If such person has been found guilty of an offense

punishable by life imprisonment or death, and has

been found sane on any plea of not guilty by reason

of insanity, there shall thereupon be further pro-

ceedings on the issue of penalty, and the trier of fact

shall fix the penalty. Evidence may be presented at

the further proceedings on the issue of penalty, of

the circumstances surrounding the crime, of the de-

fendant’s background and history, and of any facts

in aggravation or mitigation of the penalty. The

determination of the penalty of life imprisonment

or death shall be in the discretion of the court or

jury trying the issue of fact on the evidence presented,

and the penalty fixed shall be expressly stated in the

decision or verdict. The death penalty shall not be

imposed, however, upon any person who was under

the age of 18 years at the time of the commission

of the crime. The burden of proof as to the age of

said person shall be upon the defendant.

“If the defendant was convicted by the court

sitting without a jury, the trier of fact shall be the

court. If the defendant was convicted by a plea of

guilty, the trier of fact shall be a jury unless a jury

is waived. If the defendant was convicted by a jury,

the trier of fact shall be the same jury unless, for

good cause shown, the court discharges that jury, in

which case a new jury shall be drawn to determine

the issue of penalty.

?There are four crimes in California, in addition to first-degree

murder, for which the punishment is in the alternative death or life

imprisonment. These are: Kidnapping with bodily harm [Cul. Penal

Code, sec. 209] ; train wrecking [Cal. Penal Code, sec. 219] ; sabotage

of war or defense effort, causing death or great bodily injury [Cel

Military and Vet. Code, secs. 1670, 1672(a)]; and assault with a

deadly weapon by a life prisoner [Cal. Penal Code, sec. 4500]. There

are two other crimes—treason and procurement of the conviction and

execution of an innocent person by perjury or subornation of perjury—

for which the penalty is death, without the alternative of life

imprisonment. [Cal. Penal Code, secs. 37, 128.]

“In any case in which defendant has been found

guilty by a jury, and the same or another jury, try-

ing the issue of penalty, is unable to reach a unani-

mous verdict on the issue of penalty, the court shall

dismiss the jury and either impose the punishment

for life in lieu of ordering a new trial on the issue

of penalty, or order a new jury impaneled to try

the issue of penalty, but the issue of guilt shall not

be retried by such jury.”

Question Presented

Does California’s procedure, which allows capital trial

juries absolute discretion, uncontrolled by standards, direc-

tions or guidelines of any kind, to impose either the penalty

of death or imprisonment for life upon a defendant con-

victed of murder in the first degree, deny to that defendant

due process of law as guaranteed by the Fourteenth Amend-

ment to the Constitution of the United States?

STATEMENT OF THE CASE

1. The Crime and Sentence

On February 14, 1967 two men, both armed and

ultimately identified as petitioner McGautha and his co-

defendant below, William Rodney Wilkinson, robbed a small

market in Los Angeles, California. (Rep. Tr., p. 105, line

1, to p. 109, line 11°] In the course of the robbery a shot

—— —_—

3Because the question here relates solely to the penalty imposed,

only the evidence at the penalty phase of the trial has been printed

in the Appendix. However, to put the matter of penalty in its con-

text of the crime for which it was imposed, we briefly summarize the

circumstances of the crime. References to the record, in that connec-

tion, are made, pursuant to Rule 26, to the Reporter's Transcript of

the trial, which is here in four volumes. The references are identified

by the abbreviation “Rep. Tr.”

——

was fired by one of the two men, but which one the

evidence leaves in conflict. That shot killed Benjamin

Smetana, husband of the market owner. [Rep. Tr., p. 116,

line 17, to p. 118, line 20; p. 362, line 13, to p. 364, line 8:

p. 385, lines 1-26; p. 394, lines 1-15.]

In due course, the two men were apprehended and

by information with one count of murder in the first degree

and two counts of armed robbery. [A. 1-4.] They were

then put upon their trial before a jury. [A. 6-8, 11.] The

trial, as required in California in cases in which the penalty

may be either death or life imprisonment [Cal. Penal Code,

sec. 190.1], was held in two stages, with separate verdicts

on guilt and penalty. In the first stage the jury returned a

verdict finding both men guilty of murder in the first degree

and armed robbery. [A. 11-14. See, also, note 24, p.

34, infra.)

The second stage of the trial—choice of the penalty to be

imposed for the murder—was then had before the same jury.

[A. 15-16, 30.] After the taking of additional evidence [see,

section 2 of this Statement of the Case, infra] the jury were

instructed that a person guilty of murder in the first degree

“shall suffer death or confinement in the state prison for

life, at the discretion of the jury . . .”; and, that, “beyond

prescribing the two alternative penalties, the law itself pro-

vides no standard for the guidance of the jury in the selec-

tion of the penalty, but, rather, commits the whole matter

of determining which of the two penalties shall be fixed to

the judgment, conscience, and absolute discretion of the

jury ...* [A. 222-223.] The jury, by their verdict, ordered

Two of the four volumes relate to voir dire examination of jurors

and are so identified on their covers. No references to those two

volumes are made in this brief. _ i

“The instruction given the jury was strictly in accord with the law

of California. [See, the cases cited in section 3 of this Statement of

the Case, infra.| It is, indeed, the standard instruction upon the sub-

ject, colloquially identified as “CALJIC 8.80.” It comes from a com-

pilation of approved instructions to be used in criminal cases, prepared

by a committee of the Bench and Bar. [See, California Jury Instruc-

tions, Criminal, 3d. ed. (West Pub. Co. 1970), p. 257; also, p. vii-]

that McGautha be put to death, but that Wilkinson be im-

prisoned for life. [A. 231-232.]

2. The Evidence and Instructions at the

Penalty Phase of the Trial

First: Each of the defendants—they had not testified in

the guilt phase of the trial—took the stand in the penalty

phase. No testimony in behalf of McGautha was offered

other than his own. [A. 159-194.] Wilkinson produced the

testimony of a number of witnesses; friends and the like,

who testified to his work habits, church attendance and

similar matters. [A. 82-83.] The prosecution added nothing

except a file of documents from Texas [A. 81], among

which were records of McGautha’s prior convictions. There

were four of them charged in the information [A. 3-4], and

admitted by him. [A. 35-36.]

A good part of the penalty phase of the trial consisted of

an exploration of the conflicting testimony of the two de-

fendants about which one of them had fired the fatal shot.®

The fact was immaterial to the question of their legal

responsibility for the crime charged. ®

5 according to McGautha, he did not fire, but Wilkinson did; at the

time of the shot he (McGautha) was holding a customer, using both

hands in the process. [A. 159-161] Wilkinson, on the other hand,

testified, in effect, that not he, but McGautha fired. [A. 98-99, 119-

120.] Eye-witness testimony, at the guilt phase of the trial—the

evidence at which the jury were instructed to consider in the penalty

phase [A. 221] corroborated McGautha. [Rep. Tr., p. 105, line 1,

to p. 110, line 2; p. 112, line 9, to p. 119, line 6.] Other evidence,

indirect in nature, and some confused and contradictory admissions

by McGautha, tended to support Wilkinson’s version. [Rep. Tr., p.

35, lines 7-9; p. 67, line 16 to p. 68, line 5; p. 112, line 9 to p. 116,

line 9; p. 202, line 6, to p. 203, line 4; p. 204, line 11, to p. 205,

line 7; p. 216, line 16, to p. 221, line 10; p. 325, line 21, to p. 326,

line 13; p. 345, line 13, to p. 351, line 3.]

The crime was “felony murder” [see, Cal. Penal Code, sec. 189;

People v. Lookadoo, 66 Cal.24 307, 314, 57 Cal. Rptr. 608, 612-613,

425 P.2d 208, 212-213 (1967)], of which each of them was equally

—— ee

Apart from his description of the events in the market,

McGautha’s testimony was brief. He was born February 2,

1926, in New Orleans, La. His parents separated when he

was four. He seems to have had little, if any, education. He

entered the military service in 1942. [A. 159, 161-162, 164)

Up to the time of his instant trial (when he was 41 years

old), he had spent more than ten years of his life in prison,

{A. 159, 162-163.] He suffered his first convictions at the

age of 17—the crimes were theft and robbery—for which, on

October 26, 1943, he was sentenced to prison. Later he was

convicted and sent to prison for the crime that in Texas is

called “murder without malice” (November 23, 1948), and

robbery by assault (May 16, 1952), for which he was also

sent to prison. All of the crimes were commited in Texas.

[A. 35-37.]

Between terms in prison he worked for a produce com-

pany in Houston, Texas. [A. 162, 163.] Upon his release

from prison in 1958 he came to California, where he worked

as a chauffeur and man-servant for such people as Hon.

Alfred Gitleson (a California Superior Court Judge), Peter

Lawford and others. [A. 163-164.]

Second: At the conclusion of the taking of the evi-

dence, the jury were again instructed. [A. 221-223.] They

were told that, contrary to what they had been instructed

in the guilt phase of the trial, the law did not forbid them

from being influenced by pity for the defendants; and they

could be governed “‘by mere sentiment and sympathy” for

the defendants; but the law did forbid “mere conjecture,

prejudice, public opinion or public feeling.” [A. 221-222.]

guilty so long as the death was brought about by one of them in the

course of “the perpetration of or attempt to perpetrate . . . robbery

...” [Cal Penal Code, sec. 189; People v. Boss, 210 Cal. 245, 249,

290 Pac. 881 (1930); People v. Washington, 62 Cal.2d 777, 780-781,

783, 44 Cal. Rptr. 442, 445-446, 402 P.2d 130, 133-134 (1965);

People v. Machado, 150 Cal. App. 2d 190, 193-194, 309 P.2d 903,

904-905 (1957).]

They were also told that they should consider all the evi-

gence received throughout the whole trial, and also “all of

the evidence of the circumstances surrounding the crime, of

each defendant’s background and history, and of the facts

in aggravation or mitigation of the penalty .. .” but, that

it was “not essential to [their] decision that [they] find

mitigating circumstances on the one hand or evidence in ag-

gravation of the offense on the other hand.” [A. 222.)

All of the foregoing was merely preface to that part of

the charge which definitively expounded to the jury the ab-

solute and unguided power confided in them. [A. 222-223.

And, see, section 1 of this Statement of the Case, p. 6, supra. ]

Nothing in it bound them in any way, in relation to choice

of penalty, to measure or weigh “‘all the evidence” by any

standard that the law may have required be met. Nothing

in the charge required a finding of any particular facts, evi-

dentiary or ultimate, as a foundation upon which to rest

their choice of penalty.

During the penalty jury’s deliberations, they returned to

the court to ask whether a sentence of life imprisonment

precluded the possibility of parole. [A. 224] The court

responded by reading to them the so-called “Morse Instruc-

tion,” which, in effect, told them that while a person serv-

ing a life term might or might not be paroled, the matter of

parole was none of their concern in fixing the penalty at

death or life imprisonment.” [A. 224-225]

7 The possibility of parole is plainly relevant to the consideration

of imprisonment as a penalty. Until People v. Morse, 60 Cal.2d 631,

36 Cal. Rptr. 201, 388 P.2d 33, was decided in 1964, that possibi-

lity was an appropriate subject of evidence, argument and instruction

in a capital-case penalty trial. [See, e.g., People v. Friend, 47 Cal.2d

749, 764, 306 P.2d 463, 472 (1957).] In Morse the State Supreme

Court disapproved of that practice and, to that extent, overruled the

cases permitting it. [People v. Morse, supra, 60 Cal.2d at 642-649, 653,

36 Cal. Rptr. at 207-212, 215, 388 P.2d at 39-44, 47.] The Court rec-

ognized, however, that a jury might very well be interested in the

subject, and ask a question about it. Accordingly, the Court prepared

the so-called “Morse Instruction” to be used in that event. [60 Cal.

—_

3. California’s Penalty-Imposition Procedure

First: The penalty for murder in the first degree ig ¢j-

ther death or imprisonment for life, at the discretion of the

jury. (Cal. Penal Code, sec. 190.] As the State Supreme

Court has frequently pointed out, “there is no requirement

of or preference for either of the applicable penalties . ,

the selection of penalty is in every instance completely

within the absolute discretion of the jury . . .”; and that

discretion is an unguided one, not confined or conditioned

by any standards fixed by the law. [People v. Jones, 52

Cal. 2d 636, 649; 343 P.2d 577, 585 (1959), quoting

People v. Brice, 49 Cal. 2d 434, 437, 317 P.2d 961, 962

(1957). To the same effect, among others, are: People y.

Hamilton, 60 Cal. 2d 105, 134, 32 Cal. Rptr. 4, 21, 383

P. 2d 412, 429 (1963); People v. Leary, 105 Cal. 486, 495-

496, 39 Pac. 24, 26 (1895); People v. Friend, supra, 47 Cal.

2d at 759, 765, 306 P. 2d at 473; People v. Morse, 60 Cal.

2d 631, 643, 36 Cal. Rptr. 201, 207, 388 P. 2d 33, 39

(1964); People v. Terry, 61 Cal. 2d 137, 141, 37 Cal. Rptr.

605, 608, 390 P.2d 381, 384 (1964); People v. Hines, 61

Cal. 2d 164, 173, 37 Cal. Rptr. 622, 628, 390 P.2d 398,

404 (1964); People v. Polk, 63 Cal. 2d 443, 451, 47 Cal.

Rptr. 1, 6, 406 P.2d 641, 646 (1965); In re Anderson, 69

Cal. 2d 613, 622-623, 73 Cal. Rptr. 21, 27-28, 447 P.2d

117, 123-124 (1968); People v. Nye, 71 Cal. 2d __., 71

Adv. Cal., 376, 389 (fn. 5) (1969).]

The jury are required, as they were told in the instant

case [A. 222], to consider all the evidence. They are not,

however, required to find any given fact or set of facts, as

a condition to imposing one or the other of the two per-

mitted penalties. Their discretion is absolute; and the State

Supreme Court has ruled that they should never be in-

structed “‘as to how the discretion should be exercised . . .”

2d at 647-649, 36 Cal. Rptr. at 211-212, 388 P.2d at 43-44.] That

instruction is another one of the standard ones used in California.

[See, California Jury Instructions, Criminal, 3d ed., p. 260. Cf., note

4, p. 6, supra.]

[People v. Bollinger, 196 Cal. 191, 207, 237 Pac. 25, 31

(1925).] They are “free to act according to [their] own

-aement and discretion” [People v. Linden, 52 Cal. 2d 1,

95 (fn. 5), 338 P.2d 397, 409 (fn. 5) (1959)]; “.- - the

law does not itself prescribe, nor authorize the court to in-

novate, any rule circumscribing the exercise of their discre-

tion, but rather, commits the whole matter of its exercise

to the judgment and the consciences of the jury . . .” [Peo-

ple v. Friend, supra, 47 Cal. 2d at 167, 306 P.2d at 474.]

Although two conflicting lines of authority on the mat-

ter once co-existed, it has been settled, at least since 1956,

that it is not necessary, as a condition of their choice be-

tween the two penalties, that the jury find an absence of

mitigating or the presence of aggravating circumstances to

fix the penalty at death.® [People v. Bollinger, supra, 196

Cal. at 205-207, 237 Pac. at 30-31; People v. Friend, supra,

47 Cal. 2d at 755-756, 306 P.2d at 466-467; People v.

Green, 47 Cal. 2d 209, 218, 224, 302 P.2d 307, 313-314,

317 (1956).]}

The trial judge may “aid the jury by stating the kinds of

factors that may be considered, thereby setting the tone for

the jury’s deliberation .. .” [People v. Polk, supra, 63 Cal.

Sat one time, before adoption of the two-stage procedure, Califor-

nia recognized the so-called “silent verdict,” so that a verdict of guilty,

silent as to penalty, meant the death penalty; if the jury intended to

impose life imprisonment, they had to say so in their verdict. [People

y. Welch, 49 Cal. 174, 179-180 (1874); People v. Green, 47 Cal.2d

209, 221-222, 302 P.2d 307, 316 (1956).] And, as well, juries were

frequently instructed, notwithstanding the Supreme Court’s disapproval,

“that in the absence of extenuating circumstances it was their duty to

bring in a simple verdict of murder in the first degree and to

‘eave with the law the responsibility of affixing the punishment.’ ”

{People v. Green, supra, 47 Cal.2d at 221, 302 P.2d at 315; People v.

Bollinger, supra, 196 Cal. at 205-209, 237 Pac. at 30-32.]

The silent-verdict practice and its associated instruction about the

necessity of finding extenuation in order to impose life imprisonment,

were definitely brought to an end by Green in 1956. The two-stage

trial procedure was adopted in 1957. [California Statutes, 1957, vol.

2, chap. 1968, sec. 2, p. 3509.]

2d at 451, 47 Cal. Rptr. at 6, 406 P.2d at 646. And, cf,

People v. Friend, supra, 47 Cal. 2d at 766-767, 306 P.2d at

473-474.] But, he is not compelled to give that aid; and,

as we have seen, he cannot, in any event, circumscribe their

absolute discretion or tell them how to exercise it.°

Second: The statute providing for separate trial of pen-

alty (Cal. Penal Code, sec. 190.1] expressly prescribes the

admissibility of evidence of the circumstances surrounding

the crime; defendant’s background and history; and any

facts in aggravation or mitigation of penalty. Admittedly,

this sets a broad and liberal standard of admissibility [see,

e.g., People v. Jones, supra, 52 Cal. 2d at 647, 343 P.2d at

584]; but it is not a limitless one. Generally speaking, “the

evidence must not be incompetent; it must not be irrele-

vant, that is, of such a nature that its prejudice to defend-

9In one of the latest decisions on the subject [People v. Nye, supra,

71 Cal.2d __., 71 Adv. Cal. at 388-389, 78 Cal. Rptr. at 473-474,

455 P.2d at 401-402], it was held not error to refuse an instruction

that would have told the jury in considerable detail that they “may

properly take into consideration factors which impel human conduct

. the effect of human passion, ignorance and weakness . . - possi-

ble uncertainties attaching to life imprisonment as against the i irrevo-

cableness of death . . . choose between stern retribution or the

exercise of pity . . . the view that . . . punishment should be fitted

to the perpetrator of the crime, not merely the crime . . .” and so

forth. [71 Adv. Cal. at 388 (fn. 4), 78 Cal. Rptr. at 474 (fn. 4),

455 P.2d at 402 (fn. 4).] It was not error to refuse that instruc-

tion for the reason, among others, that “a proper instruction” on

the subject was given. This “proper instruction” told them to con-

sider all the evidence of the circumstances surrounding the crime,

the defendant’s background and history, and of the facts in aggra-

vation or mitigation, but that it was not essential to their decision

to find mitigating circumstances on the one hand or evidence in

aggravation on the other. It then concluded with California’s usual

statement that “[b]eyond prescribing the two alternative penalties,

the law itself provides no standard for the guidance of the jury .. .

but, rather, commits the whole matter of determining which of the

two penalties shall be fixed to the judgment, conscience and absolute

discretion of the jury . . .” [71 Adv. Cal. at 389 (fn. 5), 78 Cal. Rptr.

at 474 (fn. 5), 455 P.2d at 402 (fn. 5).]

ant outweighs its probative value; and it must not be di-

rected solely to an attack upon the legality of the prior

adjudication [of guilt) ...” [People v. Terry, supra, 61

Cal. 2d at 144-145, 37 Cal. Rptr. at 610, 390 P.2d at 386.)

Nonetheless, competent evidence that seems upon its face

to be relevant and significantly material to the choice of

penalty the jury have to make, is excluded; and evidence

that on its face is highly prejudicial to the defendant, is ad-

mitted.'° (Generally, see, The Death Penalty Cases, 56 Cal.

Law Rev., 1268, 1406-1412 (1968); The California Penalty

Trial, 52 California Law Review, 386 (1964).]

In the category of relevant and material evidence that is

excluded come such matters as the likelihood of parole or

pardon, if a life sentence is given [see, People v. Morse,

supra, 60 Cal. 2d at 637-653, 36 Cal. Rptr., at 204-215, _

388 P.2d at 36-47; People v. Varnum, 61 Cal. 2d 425, 428-

429, 38 Cal. Rptr. 881, 882-883, 392 P.2d 961, 962-963

(1964)] and the deterrent effect of the penalty. [People

y. Ketchell, 59 Cal. 2d 503, 536-538, 30 Cal. Rptr. 538,

556-557, 381 P.2d 394, 412-413 (1963).] On the other

hand, in the category of the prejudicial but admissible, is

evidence of the defendant’s prior crimes—even those of

which he has not been convicted."' [People v. Ketchell,

10For the most part, the question of what may be properly put

before a jury in a penalty trial arises on appeal in the form of an

objection to an instruction given or an argument made to the jury.

Instructions, however [see, People v. Turville, 51 Cal.2d 620, 632-633,

335 P.2d 678, 685-686] , and argument, as well [see, People v. Love,

5% Cal.2d 720, 730, 756-757, 16 Cal. Rptr. 777, 782, 17 Cal. Rptr..

481, 486-487, 366 P.2d 33, 38, 809, 814-815 (1961)] , must be based

on the evidence and facts judicially noticed. To exclude certain facts

as a proper subject of instruction or argument, therefore, necessarily

connotes inadmissibility of evidence of those facts. As was said in

People v. Love, supra, 56 Cal.2d at 731, 16 Cal. Rptr. at 783, 366 P.

_2d at 39, since the evidence is inadmissible, the argument is improper.

‘There is a limitation on this rule, but one which does not

materially hamper or deter use of such evidence—a defendant’s admis-

sion or confession of another crime is inadmissible without extrinsic

proof that the crime was committed. [People v. Hines, 61 Cal.2d 164,

supra, 59 Cal. 2d at 541-542, 30 Cal. Rptr. at 559-560, 38)

P.2d at 415-416.]

Whatever may be the scope of the evidence, the jury are

required to do no more than consider it [see, People y.

Howk, 56 Cal. 2d 687, 697-699, 16 Cal. Rptr. 370, 375.

376, 365 P.2d 426, 431-432 (1961)]; nothing can limit

their absolute discretion to choose which of the two alter-

native penalties should be imposed. [See, e.g., People y.

Friend, supra, 47 Cal. 2d at 759-767, 306 P.2d at 469-475;

People v. Terry, supra, 61 Cal. 2d at 146-147, 37 Cal. Rptr.

at 611-612, 390 P.2d at 387-388; People v. Hines, supra, 61

Cal. 2d at 173, 37 Cal. Rptr. at 628, 390 P.2d at 404.)

Third: Limitation upon the range of the instructions to

be given, and the argument that may permissibly be made,

to the jury, follows the pattern just discussed in relation to

the admission of evidence. [See, note 10, p. 13, supra.] The

significant consideration, as we have already shown [see, sec-

tion 3, subd. First, of this Statement of the Case], is that

they need not be told in the charge anything more than

that theirs is the absolute discretion to select the penalty;

they are not to be told how that discretion should be exer-

cised; nor may they be told what factors are to be con-

sidered in determining the penalty.

Argument, of course, must stay within the limits of the

evidence. [People v. Love, supra, 56 Cal. 2d at 730-731,

16 Cal. Rptr. at 782-783, 17 Cal. Rptr. at 486-487, 366

P.2d at 38-39, 814-815.] The State Supreme Court has

said that the objectives and the deterrent effect of punish-

ment, and the aggravating or mitigating effect of the evi-

dence, are proper subjects of argument to the jury. [Peo-

174, 37 Cal. Rptr. 622, 629, 390 P.2d 398, 405 (1964); People v.

Nye, supra, 71 Adv. Cal. at 387-388, 78 Cal. Rptr. at 473, 455 P.

2d at 401]; and its commission must be proved beyond a reasonable

doubt [People v. Polk, supra, 63 Cal.2d at 450, 47 Cal. Rptr. at 5-6,

406 P.2d at 645-646].

y. Friend, supra, 47 Cal. 2d at 7166-767, 306 P.2d at

474; People v. Green, supra, 47 Cal. 2d at 218-224, 231,

302 P.2d at 313-317.) The present vitality of that pro-

nouncement, however, rests in substantial doubt. Later

cases, Without expressly overruling or limiting Friend or

Green, have held it error to permit argument or evidence as

to the deterrent effect of punishment. [People v. Love,

supra, 56 Cal. 2d at 725-726, 16 Cal. Rptr. at 779, 366

P.2d at 35; People v. Ketchell, supra, 59 Cal. 2d at 536-

538, 30 Cal. Rptr. at 556-557, 381 P.2d at 412-413.]

The cases that permitted this kind of argument did so upon

a record showing that the jury were “adequately and fully

instructed as to the full scope of their functions . . .” and

had been told, in that respect, that the choice of penalty is

“committed to their absolute discretion . . .” and that

there is “no rule of law that the punisiment should be

death unless there is evidence of extenuation > mitigating

circumstances [nor that it] shall be life imprisonment un-

less there is evidence in aggravation of the offense .. .”

[People v. Friend, supra, 47 Cal. 2d at 766-767, 306 P.2d

at 474. See, also, People v. Green, supra, 47 Cal. 2d at

218-224, 231, 302 P.2d at 313-317.]

Fourth: The jury’s imposition of the death penalty is

subject to only limited review, and that by the trial court

in passing upon a motion for a new trial. ‘“. . .Only the

trial court has power to reduce the punishment originally

selected by the trier of fact...” [People v. Rittger, 54

Cal. 2d 720, 734, 7 Cal. Rptr. 901, 909, 355 P.2d 645,

653 (1960).] When a new trial motion is made, and upon

an independent review of the evidence, which it is the trial

court’s duty to make, the trial court, if it concludes that

the jury’s verdict is not supported by the weight of the evi-

dence, may reduce the penalty to life imprisonment. [Cal.

Penal Code, sec. 1181, subd. 7; In re Anderson, supra, 69

Cal. 2d at 623, 73 Cal. Rptr. at 28, 447 P.2d at 124; Peo-

ple v. Love, supra, 56 Cal. 2d at 728, 16 Cal. Rptr. at 780-

781, 366 P.2d at 36-37.)

An appellate court in California, including the Supreme

Court itself, has no such power; it “cannot substitute its

judgment as to choice of punishment . . .” even if it “may

doubt the appropriateness of the death penalty” in the

case before it.’ [People v. Linden, supra, 52 Cal. 2d at

26, 338 P.2d at 410. To the same effect are: People y.

Green, supra, 47 Cal. 2d at 235, 302 P.2d at 324-325; Peo.

ple v. Morse, supra, 60 Cal. 2d at 650, 36 Cal. Rptr. at 212,

338 P.2d at 44; People v. Love, supra, 56 Cal. 2d at 727-

728, 16 Cal. Rptr. at 780-781, 366 P.2d at 36-37.] The

Supreme Court “has uniformly rejected requests to reduce

the penalty from death to life imprisonment .. .” [People

v. Lookadoo, supra, 66 Cal. 2d at 327, 57 Cal. Rptr. at

621, 425 P.2d at 221.] Of course, if there is error of law

involved, the appellate court may reverse; but “it cannot

correct the error by reducing the punishment, but must re-

verse and remand the question to the trier of fact . . . It is

only the trial court which is empowered to reduce the de-

gree or class of offense based on its view of the weight of

the evidence .. .” [People v. Linden, supra, 52 Cal. 2d at

27, 338 P.2d at 410. See, also, People v. Borchers, 50 Cal.

2d 321, 330, 325 P.2d 97, 101 (1958).]

Both trial and appellate courts, when the verdict is “con-

trary to law or evidence, but if the evidence shows the de-

fendant to be not guilty of the degree of the crime of

which he was convicted, but guilty of a lesser degree

thereof, or of a lesser crime included therein . . . may mod-

ify the verdict, finding or judgment accordingly . . .” [Cal.

Penal Code, sec. 1181, subd. 6.] As the quoted language

would lead one to expect, the power may not be exercised

12This seems to be an anomalous result, because the statutory

provision that empowers the trial court to reduce the penalty, also

provides that “this power shall extend to any court to which the case

may be appealed.” ([Cal. Penal Code, sec. 1181, subd. 7.] The

anomaly is explained by the Supreme Court as a necessary one, “be-

cause under the pertinent statutes as construed by this court the trier

of fact is vested with exclusive discretion to determine punishment

...” [People v. Green, supra, 47 Cal.2d at 235, 302 P.2d at 324-325.}

to reduce a verdict of murder in the first degree to second

degree, even though it may appear to the appellate court

that only a second-degree murder'was committed, “‘if there

is evidence of and the trier of fact finds first degree mur-

der. . .” [People v. Linden, supra, 52 Cal. 2d at 26,

338 P.2d at 410.]

4. Review of the Penalty.

McGautha made and the trial court denied a motion for

a reduction of sentence and for a new trial. [A. 239, 243.]

On appeal to the State Supreme Court the judgment of

death was affirmed. [A. 248, 265.] The question here pre-

sented was raised by petitioner in the Supreme Court; it

was expressly decided in favor of the constitutionality of

the standardless death-penalty procedure, on the authority

of In re Anderson, supra, 69 Cal. 2d 613, 73 Cal. Rptr. 21,

447 P.2d 117.'3 [A. 265] A petition for rehearing was de-

nied; and the instant certiorari proceedings ensued.

SUMMARY OF THE ARGUMENT

The penalty for murder in the first degree in California

is not fixed by the law. The determination whether in any

given case it shall be death or life imprisonment is confided

to the jury, in its absolute discretion. The law provides no

standards or guidelines by which the jury are to determine

which of the two penalties should be imposed. They need

not be instructed as to what are the legal considerations

that should be taken into account when deciding whether

13 Anderson was decided, by a 4-3 division of the Court, in favor

of constitutionality of the procedure. A comprehensive discussion of

our immediate problem is to be found in it, especially in the dissent-

ing opinion of Mr. Justice Tobriner, in which then Mr. Chief Justice

Traynor and Mr. Justice Peters concurred [69 Cal.2d at 635-669, 73

Cal. Rptr. at 36-59, 447 P.2d at 132-155.] We respectfully suggest

examination of that opinion as an elaboration of and supplement to

the argument we have made.

the penalty should be death or life imprisonment. That is

so, because the law does not provide any such considera-

tions, but leaves the decision to the absolute and unguided

discretion of the jury. Accordingly, a jury faced with the

ordeal of making that decision need only be told, and in

the case at bar it was only told, that in determining which

punishment should be inflicted, they were “entirely free to

act according to [their] own judgment, conscience and ab-

solute discretion . . .”; and that “the law itself provides no

standard for the guidance of the jury in the selection of the

penalty ...” So instructed in the instant case, which in-

volved two men jointly committing and equally guilty of a

murder, the jury chose life imprisonment for one of them,

and death for the other, the petitioner here. Because of

the absolute discretion vested in the jury to choose the

penalty, their choice is unreviewable on appeal in the State

courts.

Inherent in this procedure, and necessarily permitted by

it, is the choice of penalty for reasons that are or may be

discriminatory, irrational, arbitrary or otherwise constitu-

tionally impermissible. It provides no assurance—it is the

law, not judicial grace, which must provide the assurance—

that the penalty decision will be reached on valid grounds

and by application of a standard that is applicable to all

and thus will achieve or tend to achieve substantial equality

of treatment of those similarly situated. And, because of

the absolute nature of the jury’s statutory power and the

absence of any standard imposed by law, there is no way of

reviewing the jury’s exercise of its discretion for abusive de-

parture from the law’s standard.

The determination reached in the instant case to put pe-

titioner to death, while sparing his co-defendant, and the

statutorily authorized procedure by which the determina-

tion was brought about, denied petitioner due process of

law. It did so, because basic to the whole notion of due

process is the principle that a man’s life or liberty shall not

be taken save in accordance with certain and ascertainable

standards fixed by the law. It is not enough in that regard

that a statute may be sufficiently certain to inform one of

what is or is not prohibited in the way of his own conduct.

It is also necessary that it be certain enough to guide courts

in the making of the determinations of guilt and punish-

ment that are inherent in the process of adjudicating a

charge that the prohibited act has been committed. In this

regard, fixing of the penalty cannot be rationally differen-

tiated from determination of guilt; in either event it is the

defendant’s life or liberty that is at hazard.

The California procedure is substantively different from

other systems of imposing the death penalty—e.g, one

where, the offense being certainly defined, a specified pen-

alty is required to be imposed upon the person found guilty

of that offense; or, one where that penalty must be im-

posed, except when the jury recommends mercy. Decision

that California’s procedure is unconstitutional, therefore,

does not mean, or require that it be decided that the death

penalty per se is. Nor does it mean or require that jury-

determination of penalty be proscribed. It means only that

when the choice of penalty is not fixed by the law, but is

left to the jury’s discretion, standards to guide appropriate

exercise of that discretion must be provided. The provision

of such standards is an attainable objective, as the work of

the American Law Institute in its Model Penal Code, and

other similar studies, show.

CALIFORNIA’S PROCEDURE, BY WHICH THE DEATH

PENALTY IS IMPOSED, DENIED PETITIONER DUE

PROCESS OF LAW, FOR IT SUBJECTED HIM TO THE

EXTREME PENALTY AS THE RESULT OF A CHOICE

NOT REQUIRED TO CONFORM TO STANDARDS FIXED

BY THE LAW, BUT WHICH WAS PERMITTED BY THE

STATE TO BE MADE IN RESPONSE TO THE UNGUIDED

AND UNRESTRAINED SUBJECTIVE REACTIONS OR

EMOTIONS OF A JURY.

First: The procedure we have described, by which peti-

tioner McGautha was sentenced to death, raises squarely the

question to which the writ of certiorari was directed-

whether he was denied due process of law by leaving to the

jury, at its absolute and unguided discretion, the choice

whether to send him to his death or to imprison him for

life. It is our submission that the procedure did deny him

due process of law, precisely because of its standardless or

unprincipled operation.

“. . . Certainly one of the basic purposes of the Due

Process Clause,” this Court has said, “has always been to

protect a person against having the Government impose

burdens upon hirr except in accordance with the valid laws

of the land. Impi it in the constitutional safeguard [of the

Fourteenth Amendment] is the premise that the law must

be one that carries an understandable meaning with legal

standards that courts must enforce...” [Giaccio v. Penn-

sylvania, 382 U. S. 399, 403 (1966)."*] The phrase “laws

14We are aware of the debate that has gone on over the meaning

of this Court’s footnote 8 in Giaccio, supra, 382 US. at 405, where

it is said that in holding as it did, the court intended “to cast no

doubt whatever on the constitutionality of the settled practice of

many States to leave to juries finding defendants guilty of a crime the

power to fix punishment within legally prescribed limits.” Having

regard to this Court’s practice of not deciding serious constitutional

questions when it is not inescapably necessary to do so—a practice

of the land” in this quotation from Giaccio, is, of course,

reminiscent of Magna Carta. The use of it is significant, for,

as it appears in the Great Charter, and as it was used in

Giaccio, it connotes ascertainable standards, fixed by law,

as a condition upon the deprivation of a man’s life, liberty

or property.'* This Court, on more than one occasion, has

assimilated “‘due process of law” to the “law of the land”

of Magna Carta. [Davidson v. New Orieans, 96 U. S. 97,

101 (1878); Den ex dem. Murray v. Hoboken Land & Imp.

Co., 18 How. 272, 276 (1855); Bartkus v. Illinois, 359

U.S. 121, 126-127 (1959); Hurtado v. California, 110 U. S.

516, 532 (1884); Twining v. New Jersey, 211 U. S. 78, 100

which, the Court has said, it has followed “[f]rom a very early date”

[Peters v. Hobby, 349 U.S. 331, 338 (1955)] —it is not to be supposed

that in this almost offhand manner, and in a case in which the ques-

tion was not involved, the Court intended to forestall plenary consid-

eration, on a proper occasion, of the serious question of constitutional

law that is raised by the standardless death penalty procedure. Rather,

and especially because that question was not involved in the case, it

would seem to be more likely that care was being taken not to

intimate an opinion one way or the other upon it, but to leave it for

appropriate consideration when it arose in a context requiring that it

be decided. Certainly, nothing in the footnote limited or qualified in

any way the basic principle of the Due Process Clause which was ex-

pounded and applied in the case.

'SThe phrase is found in the 39th Article, which reads as follows:

“39. No freeman shall be taken, or imprisoned, or dis-

seised or outlawed or banished, or in any way destroyed, nor

mill We pass upon him, nor will we send upon him unless by

the la I judgment of his peers or by the law of the land.

Magna Carta, art. 39, West’s California Annotated Codes,

stitution, vol. 3, p. 764.]

The apposition of the phrases “lawful judgment of his peers” and

“law of the land,” connotes the requirement that, as a condi-

tion of the taking, imprisonment or destruction of a freeman, or

other condemnation for which a “lawful judgment” may be passed,

there must be pre-existing law.

(1908). See, also, Duncan v. Louisiana, 391 U.S. 145,

169 (1968), Black and Douglas, JJ., concurring; Louisiana

v. Resweber, 329 U. S. 459, 467 (1947), Frankfurter, J.,

concurring. ]

Thus, it follows that, before one may be deprived of his

life or liberty, the law itself must fix the standards from

which a judgment of deprivation may be rationally de-

ived, and by which the propriety of that judgment may

tested. If judgment without guidance from such stand-

ards is permissible, what is done is not to determine the de-

fendant’s fate by the law of the land, but to leave it to the

ad hoc determination of the particular jury before whom

the case chances to come. That is not due process of law,

but whim or caprice; it is no more than “the arbitrary ex-

ercise of government unrestrained by the established princi-

ples of private right and distributive justice.” [See, Hurtado

v. California, supra, 110 U. S. at $27.]

This requirement of standards is not met by the discre-

tionary power the trial judge has to “aid the jury by stat-

ing the kinds of factors that may be considered, thereby

setting the tone for the jury’s deliberation.” [People v.

Polk, supra, 63 Cal. 2d at 451, 47 Cal. Rptr. at 6, 406 P.2d

at 641.] The judge need not give any such aid; and, if, as

- a matter of grace or discretion he essays to give it, the law

does not tell him, any more than he can tell the jury, what

“kinds of factors” are to be considered. In any event, it is

the “law itself [that] must save the parties’ rights, and not

leave them to the discretion of the courts as such...”

[Louisville and N.R.R. Co. v. Central Stock Yards, 212

U. S. 132, 143-144 (1909); it is the statute that must se-

cure the defendant’s rights, not merely the court as a mat-

ter of discretionary or gracious choice. [See, Coe v. Armour

Fertilizer Works, 237 U. S. 413, 424-425 (1915).]

16So far as the precise holding of Twining is concerned—that the

Fourteenth Amendment does not apply, as against a State, the Fifth

Amendment privilege against testimonial compulsion—it has been

overruled. [See, Malloy v. Hogan, 378 US. 1, 2, 6 (1964).]

Second: It is not enough that a criminal statute be “suf-

ficiently definite to give notice of the required conduct to

one who would avoid its penalties . . .”; it must also “guide

the judge in its application and a lawyer in defending one

with its violation” [Boyce Motor Lines v. United

States, 342 U.S. 337, 340 (1952)]; or, as this Court also

put it in Musser v. Utah, 333 U. S. 95, 97 (1948), “[llegis-

lation may run afoul of the Due Process Clause because it

fails to give adequate guidelines . . . to guide courts in try-

ing those who are accused .. .” The Court of Appeals for

the District of Columbia Circuit has put the matter co-

gently: “‘. . . ‘a law fails to meet the requirements of the

Due Process Clause’ not only ‘if it is so vague and standard-

less that it leaves the public uncertain as to the conduct it

prohibits,’ but also if it ‘leaves judges and jurors free to de-

cide, without any legally fixed standards, what is prohibited

and what is not in each particular case.’” [Ricks v. District

of Columbia, D. C. Cir., 414 F.2d 1077, 1101 (1968).]

It is settled that a statute could not constitutionally be

so vague as to permit every jury to become a legislature ad

hoc, formulating its own but unascertainable standards for

the occasion of the case in which it sits. [See, Herndon v.

Lowry, 301 U. S. 242, 262 (1937); Connally v. General

Construction Co., 269 U.S. 385, 391 (1926).] No one,

therefore, could reasonably quarrel with the proposition

“that due process requires the adjudication of an individ-

ual’s rights and duties to be governed by rules of sufficient

objectivity to guard against an arbitrary or ad hominem re-

sult...” [See, Note, 62 Harvard Law Rev., 77 (1948).]

Taking that as a premise, it follows “that such rules, when

embodied in a statute, must be definite enough to enable

the judge to make rulings of law and charges to the jury

which are so closely referable to the statute as to assure

consistency of application.” [Jbid. }

Of course, this is void-for-vagueness doctrine; but the

cases that apply the doctrine have noted this dual aspect of

it. It is not only that the crime must be so certainly de-

Pe LE OO Ree cane wee eet OO! SLE OL A OLOT ete a

fined that the statute gives “adequate guidance to those

who would be law abiding . . .” and advises “defendants of

the nature of the offense with which they are charged . . .”:

it is also necessary, if the statute is not to “run afoul of the

Due Process Clause . . . [that it] guide courts in trying

those who are accused.”"7 [Musser v. Utah, supra, 333

U. S. at 97.] No doubt, in California the crime of murder

is defined with sufficient certainty to give the guidance “to

those who would be law abiding” that the Due Process

Clause requires. No doubt, too, the meaning of “death”

and “life imprisonment” in the statutory context is clear

enough to inform those concerned of what is meant. The

statute’s deficiency is that it does not itself fix a penalty,

and does not tell those to whom that power is given, when

and in what circumstances the one penalty rather than the

other should be chosen.

If “the jury must take instruction from the court, at

least the trial court must be possessed of the means of

knowing with sufficient definiteness the range of ‘rights’

that are ‘constitutional’. . .”—in our case, the range of con-

siderations bearing on the choice of penalty that are con-

stitutionally permissible. [See, Screws v. United States,

325 U.S. 91, 151-152 (1945), Roberts, Frankfurter and

Jackson, JJ., dissenting.] So, if, as the cases cited show,

standards are necessary to guide courts in deciding who is

or is not guilty of the defined crime, they are equally nec-

essary to guide them in deciding what is to be done to or

with those found guilty. In either aspect of the adjudica-

17To the same general effect are: Giaccio v. Pennsylvania, supra,

382 U.S. at 402-403—“. . . a law fails to meet the requirements of

the Due Process Clause if it is so vague and standardless that it leaves

the public uncertain as to the conduct it prohibits or leaves judges

and jurors free to decide, without any legally fixed standards, what is

prohibited and what is not in each particular case . . .” (Italics ours);

Boyce Motor Lines v. United States, supra, 342 U.S. at 340; Wright v.

City of Montgomery, Alabama, 5 Cir., 406 F.2d 867, 871-872 (1968);

Ricks v. District of Columbia, supra, 414 F.2d at 1100-1102; Goldman

v. Knecht, D. Colo. (3-judge court), 295 F. Supp. 897, 903-906 (1969).

: a ja

tory process, the absence of standards “licenses the jury

(or court] to create its own standard in each case . . ce

[Herndon v. Lowry, supra, 301 U. S. at 263 (1937); Gold-

man v. Knecht, supra, 295 F. Supp. at 904.] That is the

“open invitation . . . to virtually unrestrained administra-

tion” of the law [see, Ricks v. District of Columbia, supra,

414 F.2d at 1101] that the cases condemn as violative of

the Due Process Clause.

The sentencing process is not, of course, outside the limi-

tations imposed upon courts by the Due Process Clause.

[See, ¢.g., Townsend v. Burke, 334 U.S. 736, 740 (1948);

Witherspoon v. Illinois, 391 U.S. 510, 522, fn. 5 (1968).]

And there is the same necessity for standards, and for the

same ultimate reason, to guide the courts in determining

which of two otherwise unfixed penalties should be im-

posed, as there is for standards to guide them in the deter-

mination of guilt. [Cf., United States v. Evans, 333 US.

483, 485-486 (1948).] In either event it is the defendant’s

life or liberty that is at stake. [See, 62 Harvard Law Re-

view, supra, at 78.)

Third: This very case illustrates the capricious and arbi-

trary way in which the standardless death-penalty procedure

may and is permitted by the State of California to work.

Of two men, equally guilty and jointly tried, only one has

been selected by the jury to be put to death. There may

have been a constitutionally permissible reason for that dis-

crimination; there may have been an impermissible one;

there may have been no articulable reason at all. We do

not know; we can only guess. But the vice of the proce-

dure goes beyond the range of arbitrariness or irrationality

that it permits; in a due process sense, it is also defective

because it requires no reason at all. As the State Supreme

Court has said, the consideration that determines the jury’s

choice may be anything that “appears to them to be im-

portant” [People v. Friend, supra, 47 Cal. 2d at 768, 306

P.2d at 474-475—and this, without any “guidelines, stand-

ards or criteria” by which to evaluate that importance or to

determine its relevance to the objects of the criminal law.

5 ee A en gen ence nent: > mae

(See, e.g., People v. Morse, supra, 60 Cal. 2d at 643, 36

Cal. Rptr. at 208, 388 P.2d at 40.] Indeed, the State Sy-

preme Court has also said that “it is within [the jury’s}

discretion alone to determine, each for himself, how far he

will accord weight to the considerations of the several ob-

jectives of punishment, of the deterrence of crime, of the

protection of society, of the desirability of stern retribu-

tion, or of sympathy or clemency, of age, sex, human pas-

sion, ignorance or weakness . . .” and others of this sort,

which a jury might be likely to take into account. [People

v. Friend, supra, 47 Cal. 2d at 768, 306 P.2d at 474-475.]

Thus, the procedure, by the authority of the State’s law,

permits the jury, in case after case, as it did in the case at

bar, to doom one man to death, while saving another, for

reasons that are unascertainable. Those reasons are, in any

event, unreviewable, because there is no law-prescribed

standard by which to weigh or measure them, even if they

are ascertained. [See, cases cited, Statement of the Case,

sec. 3 subd. First, supra.] For all that we know, the rea-

sons that moved McGautha’s jury may have been constitu-

tionally impermissible ones. Even if they were, the result

based on them is unimpeachable, so far as California law is

concerned.

That is the reality of the standardless death penalty pro-

cedure; it reveals the uncontrolled potential in it for arbi-

trary and unprincipled operation against persons to whom

the Due Process Clause guarantees a reasoned and equal ap-

plication of the law. It reaches its result, not on the basis

of and in conformity with fixed standards of the law, but

in accordance with the subjective and unrestrained reactions

of the individual members. of a jury acting pro hac vice.

[See, e.g., Note, 24 Virginia Law Review, 462, 464-465

(1938); C. Kerr, A Needed Reform in Criminal Procedure,

6 Kentucky Law Review, 107, 108-110 (1918).] Due pro-

cess of law means something more than notice and an op-

portunity to be heard. That minimal requirement is

meaningless if it does not lead to judgment pronounced

only in conformity to ascertainable standards fixed by the

law. [See, 62 Harvard Law Review, supra, at 78.] That is

the great principle which lies at the heart of the Due Pro- |

cess Clause, and against which the standardless death pen-

alty procedure offends—the principle that no man shall be

deprived of his life save by the law of the land.

Fourth: Rational standards by which to guide the choice

between death and life imprisonment are capable of formu-

lation by the policy-making branches of Government. A

specific set of standards has been worked out by the

‘American Law Institute in its Model Penal Code, sec. 210.6

(May 14, 1962).'® A reasoned formulation along the same

lines, suggested for the State of Pennsylvania, will be found

in 108 U. Pa. Law Review, 434, 445-448 (1960). These

show that the job can be done.

It is, of course, no part of petitioner’s burden in this re-

view to formulate or suggest acceptable standards.'? The

'®The general scheme of the Code is that the lesser penalty will be

imposed if none of the enumerated aggravating circumstances is shown;

or substantial mitigating circumstances established by the evidence call

for leniency, or the defendant is under the age of 18 years, or his

physical or mental condition calls for leniency, or, even though the

evidence suffices to sustain the verdict of guilt, it does not foreclose

all doubt respecting the defendant’s guilt. The jury is given a wide

discretion, but it may not impose the dealth penalty unless it finds

one of the enumerated aggravating circumstances and that there are

no mitigating circumstances sufficiently substantial to call for leniency.

Aggravating and mitigating circumstances, respectively, are categorized

and enumerated with fair specificity.

"9A general suggestion may nevertheless be ventured. There is,

modernly, pretty general agreement upon the objects of punishment—

they are, not alone or at all retribution, but deterrence, rehabilitation,

and protection of society generally. [See, e.g., People v. Friend,

supra, 47 Cal.2d at 766 (fn. 8), 306 P.2d at 474 (fn. 8); Rudolph v.

Alabama, 375 U.S. 889, 891 (1963); Goldberg, Douglas, Brennan,

JJ., dissenting.] Consideration of the choice of penalty could be

centered around these objectives, with a view of choosing that one

which, having regard to the circumstances of the case and the char-

acter and temperament of the defendant, would most nearly further

rather than frustrate them.

purpose of adverting to the matter is only to show that the

argument based on the absence of standards is not an ab-

straction, but one which points at a defect in the California

procedure which is remediable. The procedure, therefore,

is not defensible as the most or best that can be done in

actual practice.

The jury’s function in penalty determination is quite dif-

ferent in kind from their usual fact-finding function. [See,

Witherspoon v. Illinois, supra, 391 U.S. at 522 (fn. 20); In

re Anderson, supra, 69 Cal. 2d at 641, 73 Cal. Rptr. at 39-

40, 447 P.2d at 135-136 (dissenting opinion).] It is more

akin to the legislative function of prescribing the penalty.

for the crimes defined by statute. That kind of function

involves consideration of basic policies of punishment and

the public purpose to be achieved. Since the jury are given

_a legislative function, they should also be guided toward the

considerations of policy they ought in fairness and reason

take into the reckoning.

No doubt, the job of formulation would not be an easy

one. But a policy-making branch of government, suitably

informed by the relevant scientific disciplines, should be

equal to the job. To hold that the Constitution requires

the formulation and application of standards would not,

therefore, be to require the unattainable or the impractical.

The case is substantively different from one—say the putting -

of a monetary value on pain and suffering from a wrong-

fully inflicted personal injury—where there is no practical

standard that can be devised [see, 7 Wigmore, Evidence

(3d ed. 1940). p. 55. § 1944] and where, therefore, the law

In its Standards Relating To Sentencing Alternatives and Procedures,

sec. 2.2, the American Bar Association Project on Minimum Standards

of Criminal Justice takes a similar approach to discretionary senten-

cing generally. (The death penalty is not included, because no

position on retention of that penalty is taken.) It is there said that

the sentence “should call for the minimum amount of custody or

confinement which is consistent with the protection of the public,

the gravity of the offense and the rehabilitative needs of the defendant.”

does the best it can by permitting the jury, subject to re-

view for abuse, to make a rough and, perhaps, arbitrary ap-

ximation. [See, e.g., Beagle v. Vasold, 65 Cal. 2d 166,

172, 179-180, 53 Cal. Rptr. 129, 136-137, 417 P. 2d 673,

680-681 (1966).]

Lt |

CALIFORNIA’S PROCEDURE, IN RESPECT TO ITS

VULNERABILITY TO THE REQUIREMENTS OF DUE

PROCESS, IS MATERIALLY DIFFERENT FROM A PRO-

CEDURE WHEREBY THE PENALTY IS CERTAINLY

IMPOSED BY LAW.

The foregoing argument is directed at demonstrating the

unconstitutionality of the California death-penalty proce-

dure, as it now exists and is applied. For the purposes of

this case we need not go beyond that relatively limited ob-

jective. Accordingly, it may serve to concentrate attention

upon and emphasize the argument if we state what we need

not argue.

First: We need not argue that the death penalty per se is

unconstitutional.2° All that we need to argue is that when

204 survey of the death-penalty statutes then (1948) in force in

the United States is found in the concurring opinion of Mr. Justice

Frankfurter in Andres v. United States, 333 U.S. 740, 757, 767

(1948). The situation as of the present time is not significantly

different. [See, e.g., 83 Harvard Law Review 1773, 1781 (1970); 51

Journal of Criminal Law, Criminology and Police Science, 317 (fn.

5).] A survey of the statutes of all of the States, made for the pur-

poses of this brief, shows, however, there are now eleven states which

have abolished the death penalty (including Vermont, which has done

so for first offenders only |Vt. Stat. Ann., tit. 13, §2303 (1958),

amended 1965, No. 30 (1969 Cum. Pocket Part)], and excluding

Delaware, which, having abolished the extreme penalty in 1960, re-

stored it a year later [53 Del. Laws, ch. 310, 82]).

The statutes appear to be of three general types. First, are those

mandatorily fixing the penalty at death upon conviction of a speci-

fied crime. [See, e.g., note 2, p. 4, supra.] Second, are those fixing the

penalty at death, but giving the jury that finds guilt the power to dis-

pense or recommend mercy [see, ¢.g., subdivision Third, infra]; and

i a

PRS ONE IE NR RIT eo rene ae ene: eR Cen tae rarer

OPE IIIE ey OE

the law itself does not impose the penalty, but leaves it to

the trier of fact to choose between it and a lesser punishment,

the law must guide the choice by rational standards that wil]

tend to lead to the appropriate decision in the particular

circumstances of the case.

Of course, the California procedure necessarily falls if the

death penalty, as such, is unconstitutional under the Due

Process Clause, ex proprio vigore, or because of the applica-

tion to the States through that Clause of the standards of

the Eighth Amendment.”! [See, Robinson v. California, 370

U.S. 660, 666, 675 (1962).] We do not reject this position

as one of the due process arguments fairly included within

third, those, like California’s, that fix no penalty, but leave it to the

jury to fix it. [Generally, see, R. Knowlton, Problems of Jury Dis-

cretion In Capital Cases, 101 U. Pa. Law Rev. 1099, 1101-1102

(1953).] Mr. Justice Frankfurter’s summation of his survey of the

statutes was that “most of the States which have retained the death

sentence have entrusted the jury with remission of the death sentence,

although sentencing is traditionally the court’s function, and this is

true even in those States where the legislature has not in so many

words put this power in the jury’s keeping . . .” [Andres v. United

States, supra, 333 U.S. at 759.] No doubt the existence of such

statutes is “worth considering,” but the “fact that a practice . . . is

followed by a large number of states is not conclusive in a decision

as to whether that practice accords with due process...” [Leland

v. Oregon, 343 U.S. 790, 79% (1952).]

21The trend of opinion. seems to be quite markedly in that direc-

tion. One of the latest expositions of the subject is that of ex-Justice

Goldberg and Alan M. Dershowitz in Declaring The Death Penalty

Unconstitutional, 83 Harvard Law Review, 1773 (1970). [Also, cf,

Goldberg, Douglas and Brennan, JJ., ; dissenting from the denial of

certiorari in Rudolph v. Alabama, supra, 375 U.S. 889.] So far, that

result has not been reached by any court of which we are aware; and

the indications of those decisions in which the question has been dis-

cussed, though not, perhaps, their precise holdings, have been to the

contrary. [See, e.g., Trop v. Dulles, 356 U.S. 86, 99-100, 111 (1958);

Ex parte Kemmler, 136 U.S. 436, 444-448 (1889); Maxwell v. Bishop,

8 Cir., 398 F.2d 138, 145-149 (1968), vacated on other grounds __

US. __, 90 S. Ct. 1578 (1970); Sims v. Eyman, 9 Cir., 405 F.2d

439, 447-448 (1969).]

the scope of the question here presented; but we do not ela-

porate upon it, because, first, it has been twice argued and

massively briefed before this Court in the two immediately

ding terms [Maxwell v. Bishop, No. 13, O.T. 1969], so

that to elaborate would be unnecessary repetition; and,

second, holding the death penalty per se to be unconstitu-

tional is not a necessary premise of the narrower argument

we make. The specific question here, and our explication

of it, go to the constitutionality of the procedure by which

the death penalty is imposed in California. The broader

question of the constitutionality of the penalty itself may,

but it need not, be reached in the case at bar as a premise

of the result we advocate—for that result does not depend

upon the unconstitutionality of the death penalty as such,

but upon the necessity for standards to guide those who must

decide whether to impose it. Such a result is wholly con-

sonant with the supposition that the death penalty is or will

be held to be a constitutional mode of punishment. All that

the result we seek will do is to require that what is, ex

hypothesi, a constitutional penalty, be imposed pursuant

to a constitutional procedure.”*

Second: On the hypothesis just indicated, the mandatory

death penalty for crimes of such gravity that imposition of

it is not so disproportionate as to offend against the Eighth

Amendment [see, Jackson v. Bishop, 8 Cir., 404 F.2d 571,

579 (1968); and cf., Trop v. Dulles, supra, 356 U.S. at 99-

100, 111 (1958); Weems v. United States, 217 U.S. 349,

366-367 (1910)] would not be affected. The standards

for imposition of the mandatory penalty are legislatively

fixed by defining the crime. The penalty necessarily follows

22The requirement of standards would not press down a pattern

of uniformity upon the States. [Cf., Burger, CJ., and Harlan, J.,

separately dissenting in Baldwin v. New York, __. US. __,

(1970).] The range of acceptable standards is wide, and so far as

anything that needs to be decided at bar is concerned, the States are

free to choose within the broad limits of the Due Process Clause.

from the fact-trier’s determination that the crime, sd de

has been committed [cf., Wilkerson v. Utah, 99 U.S. 130,

136 (1879); and see, Trop v. Dulles, supra, 356 U.S. at 99.

Ex parte Kemmler, supra, 136 U.S. at 444-448; Sims vy. Ey.

man, supra, 405 F.2d at 447-448.] Decision at bar along

the lines we urge will add only the requirement that where

the penalty is not fixed by the law, but is left to the discre-

tion of the fact trier, standards to guide the exercise of dis.

cretion must be provided.

Third: Statutes that impose the death penalty for a

defined or specified crime, but give to the jury or court a

dispensing power of mercy [see, e.g., the Arkansas statute

involved in Maxwell v. Bishop, supra, 398 F.2d 138, are not

necessarily affected by acceptance of the proposition we

urge here. Such statutes are quite different from California’s.

Under them, as the Court of Appeals noted in Maxwell,

supra, 398 F.2d at 149, “the basic punishment is death

. . . The life imprisonment alternative . . . [i]n operation

gave the Arkansas jury the power to alleviate punishment and

extend clemency . .. where death had been the only punish-

ment theretofore prescribed .. .” So, when as happened in

Maxwell’s case, the jury did not exercise its option of clem-

ency, the penalty, certainly fixed by the law, was death.

{[See, Maxwell v. Bishop, supra, 398 F.2d at 139.] The

Arkansas cases support that interpretation of the statute in-

volved in Maxwell. [Kelley v. State, 133 Ark. 261, 276-277,

202 S.W. 49, 54 (1918). See, also, Hawthorne v. State, 135

Ark. 247, 250-251, 204 S.W. 841, 842-843 (1918); Clark v.

State, 169 Ark. 717, 729, 276 S.W. 849, 853-854 (1925);

Stewart v. State, 233 Ark. 458, 462, 345 S.W.2d 472, 475

(1961).]

Under the California statute, however, the jury, not the

law, fixes the penalty [see, People v. Green, supra, 47 Cal.

2d at 224, 302 P.2d at 317]; the law has no preference be-

tween the two alternative penalties, and fixes neither as the

one to be imposed. In fact, in California, there is no pen-

alty fixed for one convicted of murder in the first degree,

until the jury affirmatively fixes it; there is no longer the

jaw-imposed penalty of death effected by a verdict of guilt

which is silent as to penalty. (See, Statement of the Case,

sec. 3, subd. First, supra.) The vast difference between the

California statute and one like the Arkansas act is strikingly

iustrated by the silent verdict. In Arkansas it means death

(eg., Kelley v. State, supra, 133 Ark. at 276-277, 202 S.W.

at 54]; in California it means no penalty at all has yet been

imposed. [Cal. Penal Code, sec. 190.1. And, see, note 8,

p. 11, supra. }

A statute that gives the court or jury the power to dispense

mercy, but, absent exercise of that power, certainly fixes an

otherwise constitutional penalty, may, perhaps, be invulner-

able to the constitutional challenge we make against the

California procedure. Conceivably, it is arguable that there

is no constitutional right to an extension of mercy or grace,

so one cannot complain on constitutional grounds of a statute

that extends to him the gracious chance of a lesser penalty

than the one to which, absent that act of grace, he is lawfully

subject. Whether that is or is not a good ground of decision

upon which to uphold a statute such as the one typified by

the Arkansas legislation, is a question that need not be de-

cided in the instant cause. The statute here involved is so

much different in its purport and operation as to make

resolution of that question unnecessary.”°

23We are aware that it has been argued before this Court that the

Arkansas statute, even if it was of the mercy-dispensation type, was

nonetheless subject to the constitutional requirement of standards.

[See, Brief for Petitioner, pp. 24-27 in Maxwell v. Bishop, No. 13,

0.T. 1969.] The Court of Appeals, stating that the basic punish-

ment under the statute was death, disagreed with the defendant’s

argument. [See, Maxwell v. Bishop, supra, 398 F.2d at 149.] We

need not enter the debate whether a statute authorizing dispensation

of clemency must provide standards by which such dispensation is to

be governed. There is a pronounced difference between, on the one

hand, a statute that certainly fixes the penalty to be imposed, and

which penalty becomes operative, without more, upon a finding of

guilt, unless mercy is extended, and, on the other hand, a statute that

fixes no penalty at all, but leaves that critical decision to the absolute

and unguided discretion of a lay jury. That difference leaves ample

room for differentiation of the two cases.

THE UNCONSTITUTIONALITY OF THE PRESENT CAPITAL

SENTENCING PROCEDURE IN CALIFORNIA REQUIRES

RECONSIDERATION BY THE STATE COURT TO DETER.

MINE WHETHER A CONSTITUTIONAL PROCEDURE Is

AVAILABLE AND APPLICABLE TO PETITIONER.

If the California jury-sentencing procedure of Penal Code,

sec. 190.1 is unconstitutional, it necessarily follows that the

judgment, insofar as it purports to impose the death penalty,

cannot stand. The only statutory provision for sentencing

is that found in section 190.1. This is not a case in which

the trial judge has the power to impose a life sentence under

that section, because the statutory contingency that energizes

the power is only the inability of the penalty jury “to reach

a unanimous verdict on the issue of penalty . . .” [Cal

Penal Code, sec. 190.1.] Conceivably, therefore, the case is

one in which no valid law under which a sentence can be

imposed exists. In a similar situation this Court has reversed

the judgment and ordered the proceedings dismissed. [Weems

v. United States, supra, 217 U. S. at 382.]

On the other hand, it is also conceivable that faced with

the situation that in the present state of the California statute,

no sentence can be constitutionally imposed by a jury, the

California Supreme Court, as a matter of construction of sec-

tion 190.1 or of the State’s common law, may hold that the

trial judge is authorized or required to impose a life sentence.

Obviously this, at least in the first instance, is a matter for

the State court. [Cf., Maxwell v. Bishop, supra, __. U.S. _

90 S.Ct. 1578, 1581 (1970).] What is clear, at this juncture,

is that, unless the procedure by which it was imposed was a

valid one, the present penalty judgment must be gotten out

of the way.”

24Petitioner was charged and convicted of one count of murder in

the first degree and two counts of armed robbery. [A. 1-3, 32-33.]

On the latter two counts he was sentenced to the term prescribed by

law [A. 32], ie., 15 years to life imprisonment. [Cal. Penal Code,

Condusion

The judgment ordering that petitioner be put to death

should be vacated and the cause remanded with directions

to reconsider the issue of penalty in the light of this Court’s

opinion and, if it is then determined that there is no exist-

ing procedure by which the petitioner may be constitutionally

sentenced, to dismiss the count of the information charging

petitioner with murder.

Respectfully submitted,

HERMAN F. SELVIN

Attorney for Petitioner

sec. 213.] Conformably to California’s Indeterminate Sentence Law

(Cal. Penal Code, Part 3, Title 1, Chaps. 7, 8, commencing with sec-

tion 2900] he will be eligible for parole upon having served seven

years; and so, the exact period of confinement will be determined

in due course by the Adult Authority. [Cal. Penal Code, secs. 1168,

2940, 3020, 3040, 3046, 5077.] If the term is not so determined by

the Authority, the term that must be served is the maximum. [Cul.

Penal Code, sec. 2940.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.