Respondents Briefm — McGautha v. California
Supreme Court brief1971
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SUBJECT INDEX
Page
CRG FI yisccterecsteicccessrerensesnicnnian 1
Statement of the Proceedings 2
A: FE Ee eathcecicnicdetinniencme 2
Bh; “TRUE I ican cssceh a eicsetenenncceenens 5
(1) Guilt Phase of the Proceedings ............ 5
(2) Penalty Phase of the Proceedings .......... 8
(a) Evidence Introduced by the Prose-
gg REEL LES =e Ce 8
(b) Evidence Introduced by Defendant
Wilkinson kc ; 2
(c) Evidence Introduced by Petitioner.. 14
De GE CIE pectin nennantnaanenanen 13
Preliminary Statement ........... 17
I.
The Special Procedure in California Law Appli-
cable to the Penalty Phase of a Capital Case,
Including Instruction to the Jury as to the
Proper Factors to Consider in Arriving at a Pen-
alty Verdict, Is Constitutionally Permissible and
Fairer to Both the Defense and the Prosecution
Than Would Be Any Formula Standards
A. Even-Handed Discretion Is Conferred
Upon the California Penalty Jury by Stat-
ute and Standard Instruction
B. All Competent, Relevant Evidence Permit-
ting the Jury to Judge the Accused, and
Not Merely the Crime, Is Admissible on
the Issue Whether the Defendant in a Cap-
ital Case Is Fit to Live
an nm ne
Page
Broad Leeway Is Permitted Counsel in Ar-
guing to the Jury Which Punishment Is
Appropriate in Light of the Evidence, so
Long as the Jury’s Discretion Is Not Ex-
panded to Include Extraneous Matters or
Restricted by Foreclosing Consideration of
Proper Factors 36
A Particularly Stringent Rule of Prejudicial
Error, Making Any “Substantial” Error
Per Se Cause for Reversal, Is Applicable
in California Exclusively to the Penalty
Phase of a Capital Trial 39
Multifaceted Review of Every Jury Ver-
dict Imposing the Death Penalty Is Af-
forded by the Trial Judge, the California
Supreme Court, and the Governor Each
Having—and Often Exercising—Discre-
tion to Supplant the Jury’s Decision.......... 41
(1) The Trial Judge’s Power to Reduce the
Jury’s Death Penalty Verdict to Life
BIEIED spcinncascnonetensncnasionnistosne 41
(2) The California Supreme Court’s Power
of Appellate and Post-Appellate Re-
view 45
(3) The Governor’s Frequently Exercised
Power to Grant a Pardon or Commu-
tation, and His Automatic Review of
All Capital Cases .. 61
The Flexible Guidelines Given the Jury at
the Penalty Phase of a California Capital
Case Are Constitutionally Preferable to the
Fixed Standards Elsewhere Proposed ...... 56
B.
C.
D.
Il. Page
All Indications Afforded by the Record Impel the
Conclusion That the Jury Acted on Constitu-
tionally Permissible Grounds, Rather Than Ar-
bitrarily, in Fixing Petitioner’s Punishment at
Death and His Codefendant’s at Life Imprison-
WN iabiiinbincd kp Avcninnetee
A. The Voir Dire Examination of the Twelve
Jurors Affirmatively Reflects Their Will-
ingness to Decide the Issue of Penalty on
the Evidence Received in Court and the
Law Given Them by the Trial Judge, and
to Disregard Racial Considerations, Petty
Biases, and Personal Preconceptions ........
The Opening Statement at the Penalty
Phase of the Trial Outlined the Proper Cri-
teria for the Jury to Consider in Evaluating
the Forthcoming Evidence ........................
The Evidence Before the Jury Indicates
That It Was Discriminating and Not Dis-
criminatory in Distinguishing Between the
Two Defendants in the Fatal Robbery: Pe-
titioner Was a Likely Candidate for the
Death Penalty Under Any Conceivable
Standards, Having Been the “Trigger
Man,” Fifteen Years Senior to His Code-
fendant, and Previously Convicted of Four
Felonies, One of Them Another Murder..
The Prosecuting Attorney’s Argument to
the Jury, Restrained and Confined to Per-
missible Matters, Served With Defense
Counsel’s Arguments to Focus the Jury’s
Attention on the Proper Factors to Be
Considered on the Issue Whether the De-
fendants Were Fit to Live ........................
81
82
87
iv.
Page
E. The Instructions Given on the Issue of Pun-
ishment Directed the Jury’s Attention to
Constitutionally Permissible Criteria, and
the Instruction on Possibility of Life Sen-
tence Parole, Given in Response to a Jury
Request, Demonstrates That the Jury
Based Its Decision Partly on a Concern
That Petitioner Be Precluded From Killing
a Third Time 95
Conclusion ............... ‘ . 98
EE . cijuticaipticinaitndsalilenennummeaammpene’ App. p. 1
TABLE INDEX
TABLE A_ Defendants Under Sentence of Death
Reviewed by the California Supreme Court, 1965-
Laickehichitaianinddiianadaiiacideabansnsdiaiiaansiitabadlgl 49
TABLE B Commutations of Death Sentences in
California, 1959-1970 ...................... 55
TABLE C Murder and Manslaughter Convictions
and Death Sentences for Murder in California,
1953-1969 a baeaueiabaaaneaaimasiianes 72
TABLE D_ Race and the Imposition of the Death
PE FOe SIO siren cectieeentnsiinmanieinmngeptaniniain 74
_
v.
TABLE OF AUTHORITIES CITED
Cases Page
Anderson, In re, 69 Cal. 2d 613, 447 P. 2d 117
cceneetpatahenpuncrotooanerieeen’ 24, 46, 53, 55, 59, 60, 67, 78
Andres v. United States, 333 U.S. 740 ...................- 59
Baggett v. Bullitt, 377 U.S. 360 ...........------------0---0-+ 56
Beagle v. Vasold, 65 Cal. 2d 172, 417 P. 2d S73... 19
Beauharnais v. Illinois, 343 U.S. 250 ...............--.-- 64
California v. Green, 399 U.S. 149 .........2-----0--00- 100
Camara v. Municipal Court, 387 U.S. 523 .............-.- 58
Chapman v. California, 386 U.S. 18 “ 39
Chatterton v. Dutton, 223 Ga. 243, 154 S.E. 2d
213, cert. denied, 389 U.S. 914 ............-.cc-cceeeeee- . 60
Coleman v. Alabama, 399 U.S. 1 . 56
Cregler, In re, 56 Cal. 2d 308, 363 P. 2d 305......19, 81
Elkins v. United States, 364 U.S. 206 58
Ernst Petition, In re, 294 F. 2d 556, cert. denied,
368 U.S. 917 59, 60, 67, 68
Garner v. Louisiana, 368 U.S. 157 .................--- 62, 79
Giaccio v. Pennsylvania, 382 U.S. 399 ............ 60, 61
Ginsberg v. New York, 390 U.S. 629 .............----.-+++ 62
Griffin v. California, 380 U.S. 609 ............... 65
Harris v. United States, 331 U.S. 145 ................ 64
Johnson v. Commonwealth, 208 Va. 481, 58 S.E.
2d 725 . 60
Johnson v. New Jersey, 384 U.S. 719 ..............------++ 58
Kemp, In re, 1 Cal. 3d 190, 460 P. 2d 481 ............ 54
Ketchel, In re, 68 Cal. 2d 397, 438 P. 2d 625 .... 54
Leland v. Oregon, 343 U.S. 790 ........-.--cceceeeseeeeees 58
—e
Vi.
Page
Maine v. Superior Court, 68 Cal. 2d 375, 438 P.
, 2: we ie |
Maxwell v. Bishop, 398 F. 2d 138, rev'd, 398
RE eat eerie 55, 62, 66, 70, 96, 100
McGowan v. Maryland, 366 U.S. 420 ......20000000000... 57
Moon v. Maryland, 398 U.S. 319 ...00022. eee eee 47
Morse, In re, 70 Cal. 2d 702, 452 P. 2d 601 ........ 51
Nash v. United States, 229 U.S. 373 .......0..02..2..... 61
North Carolina v. Pearce, 395 U.S. 711 ................ 47
Ochoa v. United States, 167 F. 2d 341 W000... 59
COPROR 0. TROT, FOB I. GD oseccsccsnccncssenvevescsiznes 80
People v. Anderson, 70 Cal. 2d 15, 447 P. 2d 942
48
People v. Bandhauer, 66 Cal. 2d 524, 426 P. 2d
900 a 33, 36
People v. Bandhauer, 1 Cal. 3d 609, 463 P. 2d 408
‘ ow 25
People v. Bassett, 69 Cal. 2d 122, 443 P. 2d 777 .. 47
People v. Bernette, 30 Ill. 2d 359, 197 N.E. 2d
I pntthcsncsn db cectcadlcininsnintainlteimnitctosiennsnicodiiticaninctessinaea te 60
People v. Coleman, 71 Cal. 2d ........ » 71 AC.
1201, 459 P. 2d 248 ....... 36, 37
People v. Daniels, 71 Cal. 2d ..... 71 A.C. 1165,
GF Fs BAe I. cecienseerensnensennnaninsenvcenecessini 61, 70, 73
People v. Durham, 70 Cal. 2d 171, 449 P. 2d 198.. 30
People v. Feldkamp, 51 Cal. 2d 237, 331 P. 2d 632
ee
People v. Ford, 65 Cal. 2d 41, 416 P. 2d 132 ...... 48
People v. Friend, 47 Cal. 2d 749, 306 P. 2d 463
iditsnliladicitens 32, 38, 69, 70
People v. Gilbert, 63 Cal. 2d 690 ...........-------+--seee000 49
People v. Goedecke, 65 Cal. 2d 850, 423 P. 2d 777
sooth v. Goodridge, 70 Cal. 2d 824, 452 P. 2d
GBT: cisentctetevencscinssensssccsssommnanenbsiertens 46, 55, 62
People v. Green, 47 Cal. 2d 209, 302 P. 2d 307
14, 21, 71
People v. Hall, 62 Cal. 2d 104, 396 P. 2d 700 ...... 48
People v. Hamilton, 60 Cal. 2d 105, 383 P. 2d
412 33, 34, 40
People v. abet, 60 Cal. 2d 482, 386 P. 2d
rere 47
People v. Hines, 61 Cal. 2d 164, 390 P. 2d 398 ...... 40
People v. Hughes, 57 Cal. 2d 89, 367 P. 2d 33........ 26
People v. Isaac Jernigan, Los Angeles Superior Court,
No. A-581816 (May 20, 1970) ............-.-----+- 42, 43
People v. Linden, 52 Cal. 2d 1, 338 P. 2d 397 .... 38
People v. Love, 53 Cal. 2d 843, 350 P. 2d 705
...26, 34, 36, 37, 42
People v. McClellan, 71 Cal. 2d ...., 71 A.C. 831,
437 P. 2d $71 ..........-. 30
People v. McGautha, 70 Cal. 2d 770, 452 P. 2d
GD cnccitnngrtenernececeesintanecvesnennissenemmmneeemmanienned 4, 8
People v. Mitchell, 61 Cal. 2d 353, "302 P. 2d 526.. 26
People v. Mitchell, 63 Cal. 2d 805, 409 P. 2d 211.. 35
People v. Moore,’53 Cal. 2d 451, 348 P. 2d 584 .. 41
»
ra
Page
People v. Morse, 60 Cal. 2d 631, 388 P. 2d 33
ee 24, 30, 31, 37, 38, 51, 65
People v. Morse, 70 Cal. 2d 711, 452 P. 2d 607,
cert. denied, 397 U.S. 944 ......... 51
People v. Nicolaus, 65 Cal. 2d 866, 423 P. 2d 787.. 47
People v. Nye, 71 Cal. 2d ...., 71 A.C. 376, 455
ee ee 30, 35
People v. Pike, 71 Cal. 2d .....71 A.C. 617, 455 P.
2d 776 34
People v. Polk, 63 Cal. 2d 443, 406 P. 2d 641....24, 67
People v. Purvis, 56 Cal. 2d 93, 362 P. 2d 713....33, 37
People v. Riser, 47 Cal. 2d 566, 305 P. 2d 1 .......... 25
People v. Robarge, 41 Cal. 2d 628, 262 P. 2d
14 91
People v. Robinson, 61 Cal. 2d 373, 392 P. 2d
970 46
People v. Sanchez, 70 Cal. 2d 562, 451 P. 2d 74 .. 52
People v. Seiterle, 56 Cal. 2d 320, 363 P. 2d 913.. 50
People v. Seiterle, 59 Cal. 2d 703, 381 P. 2d 947,
cert. denied, 375 U.S. 887 ............ 50
People v. Seiterle, 65 Cal. 2d 333, 420 P. 2d 217,
cert. denied, 387 U.S. 912 50
People v. Shipp, 59 Cal. 2d 845, 382 P. 2d 577 .... 37
People v. Siplinger, 252 Cal. App. 2d 817, 60
SE a TD cedimincecccnubooninbonseies 80
People v. Stanworth, 71 Cal. 2d ........ , 71 A.C. 858,
& eB ik I a eon tee 25, 46
Seiterle v. Superior Court, 57 Cal. 2d 397, 369
People v. Tahl, 65 Cal. 2d 719, 423 P. 2d 246........ 34
People v. Terry, 57 Cal. 2d 538, 370 P. 2d 985,
cert. denied, 375 U.S. 960 ......... 51
People v. sigan 61 Cal. 2d 137, 390 P. 2d 381
odin 33, 34, 35, 51, 64
People v. a, 70 Cal. 2d 410, 454 P. 2d 36,
cert. denied, 379 U.S. 866 ..... 51
People v. Tidwell, 3 Cal. 3d 62, .... P. 2d .... ....--.--- 52
United States v. Raines, 362 U.S. 17 ..............-.-- 19, 81
People v. Varnum, 61 Cal. 2d 425, 392 P. 2d 961.... 38
People v. Varnum, 70 Cal. 2d 480, 450 P. 2d 553 .. 30
People v. Vassie Washington, Jr., Los Angeles Su-
perior Court, No. A-000400 (May 18, 1970)..42, 43
People v. Washington, 62 Cal. 2d 777, 402 P. 2d
130 21
People v. Washington, 71 Cal. 2d ........ , 71 AC.
1105, 458 P. 2d 479 peienipannihhanenmenit 44
People y. Watson, 46 Cal. 2d 818, 299 P. 2d 243.. 39
perior Court, No. A-000400 (May 18, 1970) ....42, 4
People v. White, 69 Cal. 2d 751, 446 P. 2d 993 .... 37
People v. Welch, 49 Cal. 174 ..........------0-ese0-ee-0+ 21, 24
Salsburg v. Maryland, 346 U.S. 545 ...........------0-+-+-- 57
Seiterle, In re, 61 Cal. 2d 651, 394 P. 2d 556, cert.
denied, 379 U.S. 992 ..........----+---- ... 50
Seiterle, In re, 71 Cal. 2d ...., 71 A.C. 722, 456
P. 2d 129. 50
Skinner v. Oklahoma, 316 U.S. 535 ............-..----+-- 78
Snyder v. Massachusetts, 291 U.S. 97 ..........--.-----+--- 57
Specht v. Patterson, 386 U.S. 605 ............-..-----+- 719
on
Spencer v. Texas, 385 U.S. 554 ...................... 58, 100
State v. Forcella, $2 N.J. 263, 245 A. 2d 181 ........ 60
State v. Johnson, 34 N.J. 212 (1961), 168 A. 2d 1
aeshstenpiisiniel 16, 67, 77
State v. Latham, 190 Kan. 411, 375 P. 2d 788,
Cart, Gomled, STS UB. DID ...c..ccrcrrcccccsseccecscsscscece 60
State v. Walters, 145 Conn. 60, 138 A. 2d 786,
app. dism. and cert. denied, 358 U.S. 46 ............ 60
State v. White, 60 Wash. 2d 551, 374 P. 2d 942,
Gort, Gamba, STS WB, BED. ..crscccccrcecreccesesseccnsccsnes 60
Sullivan, Ex Parte, 83 F. 2d 796 ......00........:cccccceeee 59
Terry, In re, 1 Cal. 3d, Minutes, p. 1 .............0.00.. 51
Ue eT, BE OT ii iasccss cn ccttecieetcdiinii 66
United States v. Jackson, 390 U.S. 570 .............. 42, 59
Williams v. New York, 337 U.S. 241 ....34, 58, 64, 65
at .70, 71, 77, 80
Winston v. United States, 172 U.S. 303 ...... 60, 67, 69
Witherspoon v. Illinois, 391 U.S. 510 ....13, 15, 31, 43
Dns Heh oo Ren Al LE escalate 44, 50, 64, 65, 66, 71
Yick Wo v. Hopkins, 118 U.S. 356 .............00....... 78
Miscellaneous
Georgia General Assembly, 1970 Sess., H.B. No.
BUTE Sapasnesaceesionanniinepedttanncncendepaahanengncnbinintmanionbicihinns 22
Model Penal Code (Proposed Official Draft, 1962),
ec uieeananeel 22, 68, 78, 92
90th Cong., 2d Sess. (1970), pp. 212-218 oo... 73
Royal Commission on Capital Punishment 1949-
ROOD BONER, BR ETRE IG cccenccccsscensenscsesentoneens 99
_—_
xi.
Page
Royal Commission on Capital Punishment 1949-
1953 Report, pp. 173-177, 195. ........---s---sesseeeee 16
Royal Commission on Capital Punishment 1949-
1953 Report, p. 208 ..........cssecscereeseeseeneeenerenees 77
Rules
California Rules of Court, Rule ae 52
California Rules of Court, Rule 28 .........--.-s-ssessseee 45
California Rules of Court, Rule 29 .........::-:sssssss 45
Statutes
California Constitution, Art. V, Sec. 8.........0-s+0++ 54
California Constitution, Art. VI, Sec. 10 .............-.- 52
California Constitution, Art. VI, Sec. 11 ........-..-.- 45
California Constitution, Art. VI, Sec. 13 ..........-.-.-- 39
California Military & Veterans Code, Sec. 1670 .. 73
California Military & Veterans Code, Sec. 1672
(B) narenersecccssesesseene ciereisteneaaniateiiin 73
California Penal Code, Sec. 37 ...........----s--sseessee+e" 73
California Penal Code, Sec. 128 73
California Penal Code, Sec. 187 a 2, 20
California Penal Code, Sec. 188 . 2, 20
California Penal Code, Sec. 189 ... ..3, 20
California Penal Code, Sec. 190........ 3, 20, 21, 24, 72
California Penal Code, Sec. 190.1 ....3, 13, 17, 18, 19
Aare Deane me Pew 20, 22, 24, 26, 32, 57, 63, 73
California Penal Code, Sec. 192 ...........--sessreeeresees 20
California Penal Code, Sec. 193 .........--seseseerses 20
California Penal Code, Sec. 209 ...........sesseeeseesees 72
——
California Penal Code, Sec. 211. ..................:ccceseees
California Penal Code, Sec. 213
California Penal Code, Sec. 219
California Penal Code, Sec. 288 ...............:cccccseeeses
California Penal Code, Sec. 671 .............c.ccccecceeeeeee
California Penal Code, Sec. 1026
California Penal Code, Sec. 1027
California Penal Code, Sec. 1181(6)(7) ..........00... 41
California Penal Code, Sec. 1218 ............ccccccccsseeee 54
California Penal Code, Sec. 1239(b) ............ 4, 45, 53
California Penal Code, Sec. 1243 ............c.cccccesesseees 45
California Penal Code, Sec. 1265 .............:cceccsseeee 52
California Penal Code, Secs. 1368-1370 .................. 63
California Penal Code, Secs. 1473-1508 ................ 52
California Penal Code, Sec. 3046 .......... 4, 37, 51, 97
California Penal Code, Secs. 3700-3706 ................ 54
California Penal Code, Sec. 4500 ...........00000.... 72, 73
California Penal Code, Secs. 4800-4906 .................. 54
California Penal Code, Sec. 12310-00000... 73
California Penal Code Annotated, Legislative His-
tory (Deering 1960), Sec. 190 ....... 21
California Penal Code Annotated, Legislative His-
tory (Deering 1960), Sec. 190.1 ..........0..... eee 22
California Statutes of 1850, Chap. 99, Sec. 21 ...... 20
California Statutes of 1856, Chap. 139, Sec. 2........ 21
California Statutes of 1970, Chap. 771 ................ 20
Federal Criminal Code, Secs. 3602-3605 .............. 68
Federal Criminal Code, Sec. 3604 .0.........ccccccee 22
wn
Page
Federal Criminal Code, Sec. 3605. .................--- 78
New York Penal Law, Sec. 125.30 ..........--------+-+- 68
United States Code Annotated, Title 18, Sec. 1111
leuiisihanaenie .24, 60, 70
United States Constitution, Fourteenth Amendment
eee are 3, Tt, ta see
Textbooks
California Jury Instructions—Criminal (3d ed.
1970), No. 1.30 63
California Jury Instructions—Criminal (3d ed.
DT, BO neni nncnsncscececcccncsncoscsnss 14, 29, 63
California Jury Instructions—Criminal (3d ed.
1970), Instr. 8.81 30
California Jury Instructions—Criminal (3d _ ed.
1970), Instr. 8.82 31
California Jury Instructions—Criminal (Rev. ed.
1957), Instr. 306.1 (New) .: 29
California Jury Instructions—Criminal (3d ed.
1970), pp. 571-586 ....... 31
52 California Law Review (1964), pp. 386, 387.. 22
J. F. Coakley, Capital Punishment, 1 Am. Crim.
L. Quarterly (May, 1963), pp. 27, 43 .........-.-----+- 98
H. Kalven & H. Zeisel, The American Jury (1966),
_ p. 434
Mathes and Devitt, Federal Jury Practice and In-
_ structions, pp. 310-311 60
39 New York University Law Review (1964),
p. 136 73, 80
39 New York University Law Review (1964), pp.
REID snresesnsnnnssnssnnhsnsennnnnnstitentnnsncsannatnenanetansensens 80
xiv.
SUT sisnieeclinenticeltivheliiaciiada
21 Stanford Law Review (1969), p 1297 pesitnian
i, 22, $8, 60, 74, 75, 76, 99
21 Stanford Law Review (1969), pp. 1301, 1307,
SITE” TTI a shctictisenenniiaeadeacishansbanianibiaseuineie 14
21 Stanford Law Review (1969), pp. 1307,
1367, 1379, 1430-1431 ............... .. 16
21 Stanford Law Review (1969), pp. 1348, 1398,
1407-1408 75
21 Stanford Law Review (1969), pp. 1348, 1349
iialeabniieilahintannatentnahtideansidineniasabebebiaannnimnlatnabiadebenia 21
21 Stanford Law Review (1969), p. 1415 ............ 74
21 Stanford Law Review (1969), pp. 1432-1438
58, 60
21 Stanford Law Review (1969), pp. 1433-1438.. 22
21 Stanford Law Review (1969), p. 1437 .......... 90
2 Witkin, California Crimes ena pp. 972-
| oe 11
Witkin, California Criminal Procedure, pp. 744-795
uel 52
Witkin, California Criminal Procedure (1969
Supp.), pp. 364-385 52
United Nations, Capital Punishment (N.Y. 1962),
SS | |: eee 60
108 University of Pennsylvania Law Review (1960)
pp. 434, 446-447 68
~~
Supreme Court of the United States
October Term 1970
No. 203
DENNIS COUNCLE MCGAUTHA,
Petitioner,
vs.
STATE OF CALIFORNIA,
Respondent.
RESPONDENT'S BRIEF
QUESTION PRESENTED
The Petition for Writ of Certiorari was granted sole-
ly as to Question 1 presented by the petition, which
reads as follows:
“* .. Does California’s practice of allowing capi-
tal trial juries absolute discretion, uncontrolled by
standards or directions of any kind, to impose
the death penalty upon a defendant convicted of
the crime of murder violate the Due Process Clause
of the Fourteenth Amendment?” (App. p. 267.)
398 US. 936.
Respondent does not accept petitioner’s formulation of
the question as an adequate characterization of Cali-
fornia’s practice or procedure but rather views the is-
sue as being whether or not the standards which are
provided under California law are constitutionally ade-
quate.
—2—
STATEMENT OF THE PROCEEDINGS
A. History of the Case
In an information filed by the District Attorney of
Los Angeles County, petitioner, together with William
Rodney Wilkinson and Fannie Lue Smith, was charged
in Counts I and II with robbery, a violation of Cali-
fornia Penal Code section 211, and with being armed
with deadly weapons at the time of the commission of
the two robberies. (App. pp. 1-2.) In Count III peti-
tioner, together with Wilkinson and Smith, was charged
with murder, a violation of California Penal Code
section 187. (App. pp. 2-3.) It was further charged in
the information that petitioner had previously been con-
victed of four prior felonies in the State of Texas and
that for each he had served a term of imprisonment in
state prison: (1) theft over $50 (1943), (2) robbery
(1943), (3) murder without malice (1948), and (4)
robbery by assault (1952). (App. pp. 3-4.)
Separate counsel was appointed by the trial court to
represent each of the three defendants. (App. p. 5.)
Petitioner and Wilkinson each pleaded Not Guilty.
(App. p. 5.) Defendant Smith’s motion for severance
was granted. (App. pp. 6, 34-35.) Petitioner was ar-
raigned on the allegation of four prior felony convic-
tions in the information and admitted each of them.
(App. pp. 6, 35-37.) Twelve jurors were thereafter im-
paneled and sworn to try the cause. (App. p. 7.)
Upon conclusion of the guilt phase of the proceed-
ings,’ the jury deliberated and returned verdicts of
1California Penal Code section 187 defines murder as fol-
lows: “Murder is the unlawful killing of a human being, with
malice aforethought.” California Penal Code Section 188 de-
fines malice. Murder committed in the perpetration of certain
_ —
a
guilty against petitioner and Wilkinson as to each
count, with the further finding that petitioner and Wil-
kinson were each armed at the time of the two rob-
beries. (App. pp. 11-14.)
Thereafter the penalty phase of the proceedings rel-
ative to the murder count commenced before the same
jury, the prosecution’s only additional evidence con-
sisting of documents establishing petitioner’s four prior
felony convictions. (App. p. 15.) Petitioner and de-
fendant Wilkinson each testified on his own behalf
(App. pp. 15-16), having previously not testified at the
guilt phase (App. p. 8), and Wilkinson presented ad-
ditional witnesses on his own behalf. (App. p. 15.)
The jury was instructed as to the exercise of its dis-
cretion on the matter of penalty. (App. pp. 221-225.)
Thereafter the jury deliberated and returned verdicts
fixing the penalty at death as to petitioner and at life
imprisonment as to defendant Wilkinson. (App. p.
30.)
Defendant Wilkinson’s motion for new trial was de-
nied. On Count I Wilkinson was sentenced to state
prison for the term prescribed by law.’ (App. pp. 31,
236.) Count II was merged into Count III (the mur-
der count), on which Wilkinson was sentenced to state
felonies, including robbery, is murder in the first degree. Cal.
Penal Code § 189. First degree murder is punishable in the al-
ternative by death or life imprisonment, “at the discretion” of
the trier of fact, while second degree murder is i
tee Se te ars to life. Cal. Penal Code § 190.
Reais goocebere for (iiancn ted proceedings on the issues
Soe ee be mS ee
0 Code section 190.1, which is set forth at pages 22-23,
*The punishment for first —
robbery is i t
from five years to life. Cal. Penal Code §§ 213, 671.
—_—
prison for the term of his natural life.’ (App. pp. 31,
236-237.) Wilkinson then filed notice of appeal. (App.
p. 237.)
Petitioner's motions for new trial and for reduction
of sentence were denied, and probation was denied,
(App. p. 32, 243.) On Count I petitioner was sentenced
to state prison for the term prescribed by law.‘ (App,
pp. 32, 247.) Count II was merged into Count III
(the murder count), on which petitioner was sentenced
to death. (App. pp. 32-33, 247-248.)
Appeal to the California Supreme Court is automatic
in capital cases. Cal. Penal Code §1239(b). In a unani-
mous opinion dated April 14, 1969, the judgments
were affirmed in their entirety as to both petitioner
and defendant Wilkinson. (App. pp. 249-265.) People
v. McGautha, 70 Cal. 2d 770 (1969) [452 P. 2d 650].
On May 14, 1969, petitioner’s Petition for Rehearing
was denied by that court, one justice dissenting. (App.
p. 266.) 70 Cal. 2d at 786 [452 P. 2d at 661.]
On June 1, 1970, this Court granted petitioner’s
motion for leave to proceed in forma pauperis and
petition for writ of certiorari, limited to Question 1
presented by the petition. (App. p. 267.) 398 U.S. 936.
B. Factual Statement
(1) Guilt Phase of the Proceedings
The evidence received at the proceedings on the is-
sue of petitioner’s and defendant Wilkinson’s guilt has
not been included in the Appendix, and no issue rela-
tive to the guilt phase of the proceedings is before this
8A prisoner sentenced to life imprisonment is eligible for
parole after serving seven years imprisonment. Cal. Penal Code
§ 3046.
*See n. 2 infra.
an nat a A OG nee ote
Court. However, the California Supreme Court's sum-
mary of the evidence at the guilt phase is set forth be-
low in order to aid this Court in evaluating the penalty
in light of the offense for which it was imposed, and
for the reason that the jury was instructed by the trial
court that in arriving at a determination on the issue
of penalty it “should consider all of the evidence re-
ceived here in court presented by the People and de-
fendants throughout the trial before this jury.” (App.
p. 222.)
“(a) The Pon Lock Robbery [Count I]: On
February 14, 1967, at about 2:30 p.m., two men
entered a market at 3772 Market Street in Los
Angeles. One of the men asked the owner, Mrs.
Pon Lock, for a pint of wine, which she gave
him. He then pointed a gun at her and demanded
money. At the same time the other man pointed
a gun at a customer, Mrs. Jean Lim. After ob-
taining almost $300 the robbers left. Mrs. Lock
chased them but they escaped.
“Both defendants were positively identified by
Mrs. Lock and Mrs. Lim as the robbers. Mrs.
Lock indicated that it was McGautha who con-
fronted her and took the money, while Mrs. Lim
testified that Wilkinson had kept her at bay with
a gun. Sell Morgan, who lived near the Wall
Street market, testified that Wilkinson was one of
two men who parked in front of his house in a
1960 white Pontiac. Morgan indicated that a wom-
an had remained in the car while the two men
were gone, and that the men returned to the car
and drove away immediately before Mrs. Lock
emerged from her market shouting that she had
sities
been robbed. Byron Shelton, a second-grade sty.
dent, testified that he had seen Wilkinson in the
store with another man on the afternoon of the
robbery. Byron stated that after he left he saw the
two men run from the store. Although he was un-
able to identify the second man, Byron did indi-
cate that this person was carrying a bottle of wine
when he left the store with Wilkinson.
“(b) The Smetana Robbery [Counts II and
III]: Mrs. Lola Smetana testified that at 5:30
in the afternoon of February 14, 1967, she was
in her store at 2151 Venice Boulevard in Los
Angeles with her husband Benjamin and a cus-
tomer. A woman entered the store, followed short-
ly by two men who asked for a bottle of wine.
One of the men, whom Mrs. Smetana identified
as Wilkinson, then pulled a gun and told her not
to move. Mrs. Smetana identified McGautha as
the other man, and stated that he also had a gun
and was holding the arms of the customer across
the store from where she and her husband were
standing. Wilkinson then struck her on the side
of her head and she fell to the floor. She heard
a shot and her husband collapsed. She saw neither
smoke nor a flash, and was unable to say which
of the two men had shot her husband. Mrs. Sme-
tana was also unable to remember whether the
woman who entered immediately prior to the rob-
bery had left before or after the beginning of the
offense. Mrs. Smetana indicated some uncertain-
ty as to which defendant had struck her and
which defendant had stood further away with the
customer. As a result of the shooting, Mr. Sme-
tana died a few hours after the robbery.
“Miss Erma Dupree stated that McGautha,
Wilkinson, Fannie Lue Smith, and she were good
friends. On February 14 all four of them drove
Fannie Lue’s 1960 white Pontiac to the store on
Venice Boulevard. Fannie Lue went into the store,
followed by the defendants; Miss Dupree re-
mained in the car. After an unstated period of
time Fannie I ue returned to the car, followed hur-
riedly by the defendants. Miss Dupree did not
hear a shot fired inside the market. Upon return-
ing to Fannie Lue’s house McGautha stated that
he had robbed the market and shot a man. In or-
der to convince Fannie Lue that he had done so
he showed her an empty cartridge in the cham-
ber of his gun. According to Miss Dupree, Mc-
Gautha later explained that Wilkinson had hit
a woman and that he, McGautha, had shot the
man in question. A few days later, Miss Dupree
testified, McGautha discovered a newspaper ar-
ticle about the robbery and killing. He stated that
the two men being sought were Wilkinson and
himself, but contended that the story exaggerated
the amount of money they had obtained from the
robbery. On cross-examination by defendant Mc-
Gautha’s counsel, Miss Dupree admitted that she
had been promised immunity from prosecution
and that at the time of the robbery Wilkinson
was her boyfriend.
“John Watkins testified that he had driven the
defendants from Los Angeles to Bakersfield about
one week after the robbery. He indicated that
during the trip McGautha stated that a man had
been killed in order to save Wilkinson’s life. Wat-
kins gave inconsistent testimony as to whether
—
McGautha admitted the shooting, but he was cer-
tain that one of the defendants had made such an
admission.
“Kaye Druley, a police ballistics expert, testi-
fied that the bullet that killed Mr. Smetana had
been fired from the .38 revolver introduced as
People’s exhibit No. 3. Miss Dupree testified that
McGautha’s gun resembled exhibit No. 3, but
Mrs. Lock stated that the gun used by Wilkinson
resembled the .38 in question. Mr. Druley further
indicated that the fatal shot might have been fired
from either of the points in the store where Mrs.
Smetana stated the robbers were standing when
her husband was shot.” (App. pp. 250-252.)
People v. McGautha, 70 Cal. 2d 770, 773-
775 (1969) [452 P. 2d 650, 652-653].
(2) Penalty Phase of the Proceedings
(a) Evidence Introduced by the Prosecution
The jury having returned verdicts of guilty as to
both petitioner and defendant Wilkinson on each of the
three counts charged in the information, further pro-
ceedings were had as to both defendants on the issue
of penalty relative to the murder charge. (App. p. 80.)
The prosecution waived opening statement to the
jury, presented no additional testimony, and offered
only one item of physical evidence (People’s Exhibit
27) consisting of a file of judgments, photographs, and
fingerprints establishing petitioner’s four prior felony
convictions and terms of imprisonment in Texas for
theft over $50 (1943), robbery (1943), murder with-
out malice (1948), and robbery by assault (1952).
(App. p. 81; see also App. pp. 3-4, 35-37.)
my —
(b) Evidence Introduced by Defendant Wilkinson
Defendant Wilkinson testified on his own behalf at
the penalty phase of the proceedings (App. pp. 84
135), having not testified at the guilt phase. (App. p.
8.) Wilkinson testified that he was twenty-six years
of age at the time of trial, that he was born in Green-
field, Mississippi, of a Causasian father and a Negro
mother, and had four sisters and one brother. When
he was twelve or thirteen years of age his father died,
and he had to leave school to seek work to support
his mother. Wilkinson had no specific skills. (App.
pp. 84-85.)
At age eighteen he enlisted in the Army but after
five or six months received an Honorable Discharge
because of his low I.Q., which was in the eighties.
(App. pp. 85-86.) Thereafter he returned to Missis-
sippi, where he worked at a service station to support
his family. He then was arrested for his involvement
with some bad checks cashed by a girl friend of his,
spent a couple months in jail while awaiting trial, but
ultimately was not convicted. (App. pp. 86-87, 102.)
Thereafter, in 1960, Wilkinson went to California,
where he worked as a dishwasher and lived for two
years with Reverend Charles Davis, a Baptist minister,
whose church he attended regularly until the time of
his arrest on the present charges. During this period
of time Wilkinson worked as a baker and then at a
picture framing establishment, sending money to his
family in Mississippi. (App. pp. 87-88.) Then in 1965
Wilkinson was shot in an alley by a gang of men,
apparently for no reason, and was hospitalized for a
week. (App. pp. 88-89.)
—
Around Christmas of 1966, Wilkinson met Erma
Gean Dupree and eventually met several other per.
sons, including petitioner, through Mrs. Dupree. (App,
pp. 89-90.) Wilkinson was living with Mrs. Dupree
at the time and needed money to pay their rent. He
and Mrs. Dupree moved into an apartment which pe
titioner shared with one Fannie Lue Smith; Wilkinson
lost his job, and despite his reluctance he agreed to en-
gage in robberies with petitioner to raise money. (App.
pp. 90-92.) Wilkinson acquired an old .32 automatic
pistol, which was missing the clip and part of the
handle. He never fired the weapon. (App. p. 93.)
On February 14, 1967, one week after moving into
petitioner’s apartment, petitioner and Wilkinson held
up the Pon Lock market (Count I). Wilkinson was
unarmed. (App. pp. 91, 95.)
Later that day petitioner and Wilkinson held up the
Smetana store (Counts II and III.) Petitioner and Wil
kinson were each armed. While Wilkinson was hold-
ing a customer, petitioner hit Mrs. Smetana, fired a
shot, and told Wilkinson to leave the store. (App. pp.
98-100, 114, 133.) Petitioner customarily kept the
murder weapon in the glove compartment of his (pe
titioner’s) Cadillac. (App. p. 135.)
Wilkinson called Edward Brimmer, a Los Angeles
police officer, as a witness on his behalf. Officer Brim-
mer testified that when he had worked in an under-
cover capacity, he had seen the murder weapon at pe-
titioner’s home on numerous occasions. (App. pp. 136-
138.) On one such occasion, petitioner demonstrated
to Officer Brimmer and another person how quickly
he could draw the weapon from his waistband. (App.
-_
pp. 138, 140.) This incident took place in 1964. (App.
p. 139.)
Wilkinson also called one of the investigating of-
ficers in the case, Sergeant Richard Sullivan, as a wit-
ness on his behalf. (App. p. 148.) Sgt. Sullivan testi-
fied that Wilkinson had answered all questions posed
to him by the police. (App. p. 151.)
Several character witnesses testified on Wilkinson’s be-
half, including Reverend Davis (App. p. 145), Mrs. Iola
Henry, formerly Wilkinson’s common law wife (App.
pp. 141, 144), and Laban Bolling, a security guard.
(App. p. 156.) They testified that until Wilkinson be-
gan to associate with petitioner and Mrs. Dupree, he
had a good reputation, regularly attended church, and
did not have a violent nature. (App. pp. 142-143,
145-147, 157-158.)
(c) Evidence Introduced by Petitioner
The sole evidence offered by petitioner at the penaity
phase of the proceedings was his testimony on his own
behalf (App. pp. 159-194), petitioner having not tes-
tified at the guilt phase. (App. p. 8.) Petitioner testi-
fied that he was forty-one years of age at the time of
trial, that he had a “bad arrest record,” but that it
was defendant Wilkinson rather than petitioner who
had struck Mrs. Smetana on the head and murdered
Mr. Smetana. (App. pp. 159-160.) According to pe-
titioner, after the Pon Lock robbery Wilkinson had
said he (Wilkinson) “was afraid of the .32 automatic
because it would hold only one shell in the chamber
and then if he was ever in trouble he would like to
have more of a defense, and so at this time we traded
guns,” petitioner giving his .38 caliber revolver to Wil-
kinson to use in the Smetana holdup. (App. pp. 160-
_
161.) Petitioner did not know whether the .32 auto
matic would function. (App. p. 186.) He denied ever
having told anyone that he (petitioner) had shot Mr,
Smetana. (App. pp. 164-165, 190-191.)
Petitioner testified that he was born in New Or.
leans and was raised in Houston, that his parents sep.
arated when he was four years of age, and that he had
a brother and a half brother and a half sister. (App.
p. 164.) Petitioner had been in military service and re-
ceived an Honorable Discharge in 1942 after his foot
was fractured by the fall of a machine gun. (App.
pp. 161-162.)
Petitioner admitted to being convicted of robbery
in 1943, serving a term of imprisonment therefor until
1946, and working in a produce company until 1948,
when he had a fight with a man, killing him and serv-
ing a term of imprisonment therefor until 1949. Peti-
tioner subsequently returned to his job at the produce
company, where he worked until 1952, when he was
convicted of robbery, serving a term of imprisonment
therefor until 1958. (App. pp. 162-163.) Although he
pleaded guilty to the two robberies, petitioner testified
that he did not “actually commit” them. (App. pp.
174-175.)
Upon his release from prison in 1958, petitioner
moved to California, where according to his testimony
he worked as a chauffeur, man servant, and personal
valet for Max Factor’s of Hollywood, Foreign Ad
Film Service, Judge Alfred Gitelson of the Los An
geles Superior Court, and Mr. and Mrs. Peter Lawford,
where he “served ex-President John F. Kennedy, Rob-
ert Kennedy, Edward Kennedy, Ethel Kennedy, Ser-
geant Shriver, Mrs. Shriver.” (App. pp. 164, 176.) Pe
=)
titioner was also employed as a theater manager, after
which he claimed to have suffered a nervous break-
down and a coronary heart attack. (App. p. 164.)
Petitioner denied having ever demonstrated his abil-
ity to draw a gun from his waistband and denied
knowing Officer Brimmer. (App. pp. 174, 178.)
On cross-examination, petitioner admitted pleading
guilty in 1964 to carrying a concealed (.38 caliber)
weapon. (App. p. 177.) However, after his arrest on
the present charges and after being advised of his
constitutional rights, he told the investigating officers
that he had never had a .38 caliber revolver and that
he had nothing to do with the Smetana robbery. (App.
pp. 180-181.) Petitioner netted some $20 from the
Smetana robbery. (App. p. 192.)
SUMMARY OF ARGUMENT
The issue in the case at bar is whether the standards
provided by California law, to guide the jury in the
exercise of its discretica in fixing the punishment in
capital cases, are constitutionally adequate under the
due process clause of the Fourteenth Amendment.
California Penal Code section 190.1 provides for
bifurcated proceedings on the issues of guilt and penal-
ty, with addition of a third phase between these two
stages where the defense of insanity is raised.
The jury is instructed that the question whether the
defendant is “fit to live,” Witherspoon v. Illinois, 391
U.S. 510, 521 (n.20), lies within the “judgment, con-
science, and absolute discretion of the jury.” (App. p.
223.) This is an even-handed discretion, with no pre-
sumptive penalty of death and no requirement that a
verdict fixing the punishment: at life imprisonment be
—14—
founded upon a finding of mitigating circumstances,
People v. Green, 47 Cal. 2d 209, 230-232 (1956) [302
P. 2d 307, 321-322].
The jury is told that it “should consider all of the
evidence received here in court” and that it “may con-
sider all 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 which have been received here in court.” The
jury is cautioned, “the authority thus vested in you is
not an arbitrary power, but must be exercised with
sincere judgment, sound discretion, and in accordance
with the rules of law stated to you.” It is also informed
that “the law does forbid you from being governed by
mere conjecture, prejudice, public opinion or public
feeling.” (App. pp. 221-223.) See California Jury In-
structions—Criminal, No. 8.80 (3d ed. 1970).
A proper evaluation of these standards requires that
they be viewed in conjunction with the multitude of
rules governing the conduct and review of capital cases
in California. Among the special procedures fashioned
to protect defendants in capital cases are those which
admit all competent, relevant evidence on the issue
whether the defendant is “fit to live,” permitting the
jury in accordance with modern penological views to
judge the accused and not merely the crime. Yet evi-
dence of other offenses must be proved beyond a rea-
sonable doubt, and unduly inflammatory evidence is
excluded. Similar safeguards exist with the respect to
the scope of argument permitted counsel on the issue
of penalty. ,
Multifaceted review of every jury verdict pad
the death penalty is afforded by the trial judge, the
=—
California Supreme Court, and the Governor each hav-
ing—and often exercising—discretion to supplant the
jury’s decision. The automatic review provided by the
California Supreme Court is particularly stringent, in-
volving a duty on the part of the court to comb the
record for reversible error even where the defendant
does not raise a claim of error and even where he
wishes to dismiss his appeal. Furthermore, a very strict
rule of prejudicial error, making any “substantial”
error per se cause for reversal, is applicable exclusively
to the penalty phase of a capital case. During the last
three years, 69% of the 59 direct appeals in capital
cases have resulted in the death penalty, conviction,
or both being set aside. California also provides nu-
merous post-appellate procedures for additional review.
In conjunction with the foregoing rules, the flexible
guidelines given the jury at the penalty phase of a capi-
tal case are constitutionally preferable to the fixed
standards elsewhere proposed. The California standards
apprise the jury of the proper factors to consider in
arriving at a determination on the issue of penalty,
and they afford defense counsel the easy task of se-
lecting for presentation to the jury any and all favor-
able or mitigating evidence concerning the offense and
relating to his client’s life background.
To the extent humanly possible, California’s proce-
dure precludes an arbitrary exercise of discretion on the
part of the jury. Its flexible standards are those most
suited for the jury’s task which, in fixing the punish-
ment in a capital case, is “to maintain a link between
contemporary community values and the penal system.”
Witherspoon v. Illinois, 391 U.S. 510, 519 (n.15). This
is borne out by examination, individually and collec-
=
tively, of the capital cases which have passed through
the California system. Significantly, every single one of
the capital cases reviewed by the California Supreme
Court in the last five years included one or more
of the aggravating circumstances enumerated in the
fixed standards cited in n.26, infra. See Appendix to
Respondent's brief.
Moreover, petitioner and amici curiae N.A.A.CP.
et al. have failed to demonstrate that any system of
fixed criteria is workable, let alone constitutionally
compelled. In fact there is substantial authority indi-
cating that such arbitrary formula-determination would
be disadvantageous to capital defendants.
See State v. Johnson, 34 N.J. 212 (1961) [168
A. 2d 1, 10-11];
Royal Commission on Capital Punishment 1949-
1953 Report, 173-177, 195.
Interestingly enough, the jury’s decision that peti-
tioner should suffer the death penalty would not have
been altered by any conceivable application of the va-
rious fixed standards which have been propounded. All
indications afforded by the record impel the conclu
sion that the jury acted on constitutionally permissible
grounds, rather than arbitrarily, in fixing petitioner's
punishment at death and his co-defendant’s at life im-
prisonment.
The voir dire examination of the twelve jurors af-
firmatively reflected their willingness to decide the is-
sue of penalty on the evidence received in court and
the law given them by the trial judge, and to disregard
racial considerations, petty biases, and personal pre-
conceptions. The opening statement of counsel and the
—
—17—
closing arguments provided further direction to the
jurors as to the proper exercise of their discretion.
Most significantly, the evidence before the jury in-
dicates that it was discriminating and not discrimina-
tory in distinguishing between the two defendants. Pe-
fitioner was a likely candidate for the death penalty un-
der any imaginable standards, having been the “trigger-
man” during the fatal robbery, fifteen years senior to
his codefendant, and previously convicted of four felo-
nies, one of them another murder.
Thus the record in petitioner’s case affords no basis
for the claim that the absence of fixed standards on
the matter of punishment deprives a defendant in a
capital case of due process of law. It is submitted
that the standards which California provides to guide
the jury in the exercise of its discretion comport with
the Fourteenth Amendment’s guarantee of due process
of law, and that moreover the record affirmatively in-
dicates that petitioner received a trial consistent with
the highest standards of fairness.
PRELIMINARY STATEMENT
Petitioner contends that his sentence of death is un-
constitutional because the procedure by which the death
penalty is imposed under California law does not com-
port with the Fourteenth Amendment's guarantee of
due process of law. More specifically, it is petitioner’s
position that California Penal Code section 190.1 is
unconstitutional because it authorized the procedure
by which the issue, whether petitioner should be sen-
tenced in the alternative to life imprisonment or death,
was submitted to the jury’s discretion uncontrolled by
fixed standards, the jury having previously found pe-
titioner guilty of murder in the first degree.
neifion
Petitioner’s argument is addressed almost exclusively
to the wording of section 190.1 (see pages 22-23, infra)
and the wording of the standard jury instruction based
upon that statute and given in the present case. (App,
pp. 221-221; see pages 26-29, infra.) However, the stat-
ute and the instruction, discussed herein in detail, com-
prise only the skeletal outline of what was submitted
to the jury as the basis for its determination on the is-
sue of punishment.
Petitioner’s concentration on the formal guidelines
given to the jury, and his minimal reference to the evi-
dence and arguments upon the evidence which make of
this case a reality, have led him to treat the procedure
by which his punishment was fixed as if it were an
abstract metaphysical exercise conducted in a factual
vacuum. Petitioner has failed to consider the practical
operation of the rules which clothed them with flesh
and blood in the case at hand.
Not only is petitioner’s approach unrealistic, but it
runs afoul of this Court’s basic precept that a statute
be judicially considered as it pertains to the specific
case and the particular litigant before the Court:
“. . . This Court, as in the case with all federal
courts, ‘has no jurisdiction to pronounce any stat-
ute, either of a State or of the United States, void,
because irreconcilable with the Constitution, ex-
cept as it is called upon to adjudge the legal rights
of litigants in actual controversies. In the exercise
of that jurisdiction, it is bound by two rules, to
which it has rigidly adhered, one, never to an-
—_—=
ticipate a question of constitutional law in ad-
vance of the necessity of deciding it; the other
never to formulate a rule of constitutional law
broader than is required by the precise facts to
which it is to be applied.’ [Citation.] Kindred to
these rules is the rule that one to whom applica-
tion of a statute is constitutional will not be heard
to attack the statute on the ground that implied-
ly it might also be taken as applying to other per-
sons or other situations in which its application
might be unconstitutional. [Citations omitted.] . . .”
United States v. Raines, 362 U.S. 17, 21.
See also In re Cregler, 56 Cal. 2d 308, 313
(1961) [363 P. 2d 305, 307-308]. -
In order to present the full context in which peti-
tioner’s penalty was fixed, and therefore the full con-
text in which the penalty determination must be re-
viewed, the specific proceedings at petitioner’s trial must
be considered in some detail. However, so that the
proceedings below can be properly evaluated, it is es-
sential first to review the judicial decisions which in-
terpret section 190.1 and establish a body of rules pe-
culiar to the conduct of the penalty phase of a capital
case in California, and to examine the practical opera-
tion of the system which provides subsequent judicial
and executive review of such proceedings.
ee AL TORT
—.
entiiin
ARGUMENT
I
The Special Procedure in California Law Applicable to
the Penalty Phase of a Capital Case,
Instruction to the Jury as to the Proper Factors to
Consider in Arriving at a Penalty Verdict, Is
Constitutionally Permissible and Fairer to Both
the Defense and the Prosecution Than Would Be
Any Formula Standards
A. Even-Handed Discretion Is Conferred Upon the California
Penalty Jury by Statute and Standard Instruction
California Penal Code section 190.1, which sets
forth the current procedure for the separate proceed-
ings on the issue of penalty that take place in capital
cases in California, has been in effect since 1957 and
governed the proceedings below.
In 1850, the year California became a State, the
Legislature decreed that “The punishment of any per-
son convicted of the crime of murder shall be Death.”
Cal. Stats. 1850, ch. 99, §21. Six years later the stat-
ute was amended to provide for two degrees of mur-
der’ and a mandatory penalty of death for murder in
<4
‘The statute relating to degrees of murder presently reads:
“All murder which is perpretrated by means of a destructive de-
vice or explosive, [elsewhere defined in the Codes], poi
lying in wait, torture, or by any other kind of wrillful detiber.
ate, and premeditated killing, or which is committed in the per-
tration of, or attempt to perpetrate, arson, rape, q
, mayhem, or any act punishable under Section 288
{sexual acts u a child under the age of fourteen years],
is murder of first degree; and all other kinds of murders
are of the second .” Cal. Penal Code §189 (italicized words
added August 19, 1970, as an urgency measure, Cal, Stats, 1970,
ch. 771, § ....). The elements of murder are defined in sections
187 and 188. See n.1, infra, pp. 2-3. Manslaughter, voluntary
and involuntary, is defined in section 192. The punishment for
second degree murder and manslaughter is set forth in sections
190 and 193.
Under the félony-murder rule, a defendant is criminally re-
sponsible for the death of anyone caused by the defendant or
_—
—
the first degree. Cal. Stats. 1856, ch. 139, §2. The
law with respect to the punishment for murder re-
mained basically unchanged when California enacted
its Penal Code in 1872, the provision in question be-
ing codified as section 190. Cal. Penal Code Annot.
$190, Legislative History (Deering 1960).
In 1874 section 190 was amended to read, “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 jury trying the same. .. .” Cal.
Penal Code Annot. §190, Legislative History (Deering
1960). An 1874 decision of the California Supreme
Court established that section 190 was to be read as
providing for the death penalty in capital cases, except
where the jury found extenuating circumstances and
expressly recommended life imprisonment. People v.
Welch, 49 Cal. 174, 179-180 (1874). This remained
the law until 1956, when the Welch decision was re-
pudiated in People v. Green, 47 Cal. 2d 209, 232 (1956)
[302 P. 2d 307, 322].
The year following the decision in the Green case,
section 190 was amended to read:
“Every person guilty of murder in the first de-
gree shall suffer death, or confinement in the state
of the California Penalty Jury in First- egree Murder Cases,
21 Stan. L. Rev. 1297, 1348 (n.131), 1398 (1969).
*A 1921 amendment :dded to section 190 the proviso that
the death penalty was not to be imposed u any person for
simider cotmmltted Velote such person venched the age of cightonn
years. Id.
ay
=
prison for life, at the discretion of the court or
jury trying the same, and the matter of punish.
ment 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.” (Em-
phasis added.)
The new section 190.1, added in 1957," instituted
the procedure for a bifurcated trial on the issues of
guilt and penalty.* Section 190.1 currently provides;
“The guilt or innocence of every person charged
with an offense for which the penalty is in the
alternative death or imprisonment for life shall
first be determined, without a finding as to penal-
ty. 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 proceedings on the issue of penalty,
and the trier of fact shall fix the penalty. Evi-
7A 1959 amendment made certain changes relative to the
issue of sanity and further added the third sentence in section
190.1, dealing with the admissibility of evidence on the issue
of penalty. Prior to the 1959 amendment, evidence on the is-
sue of penalty was limited to “any evidence concerning the
commission of the crime admissible in the trial determining
the guilt of the defendant.” Cal. Penal Code Annot. §190.1,
Legislative History (Deering 1960).
*California was the first State to provide for separate trial
of these issues in capital cases. See Comment, The California
Penalty Trial, 52 Cal. L. Rev. 386, 387 (1964). Since then
Connecticut, Georgia, New York, Pennsylvania and Texas have
this procedure. See Special Issue, A Study of the Cali-
fornia Penalty Jury in First-Degree Murder Cases, 21 Stan.
L. Rev. 1297, 1433-1438 (1969), and Ga. Gen’l Assembly,
1970 Sess., H.B. No. 228. See also Study Draft of a New
Federal Criminal Code §3604 (National Commission on Re-
form of Federal Criminal Laws, 1970); Model Penal Code
§210.6 (Proposed Official Draft, 1962).
—=23—
dence may be presented at the further proceed-
ings on the issue of penalty, of the circumstances
surrounding the crime, of the defendant's back-
ground and history, and of any facts in aggrava-
tion or mitigation of the penalty. The determina-
tion 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 con-
victed 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.
“In any case in which defendant has been found
guilty by a jury, and the same or another jury,
trying the issue of penalty, is unable to reach a
unanimous 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.”
a
In repudiating the doctrine of the Welch case, supra,
that the law fixes death as the punishment for
first degree murder in the absence of extenuating cir.
cumstances justifying a jury verdict of life imprison-
ment, the court in Green stressed that the jury’s discre-
tion is unimpeded by any need to find mitigating cir
cumstances. People v. Green, supra, 47 Cal. 2d 209,
230-232 (1956) [302 P. 2d 307, 321-322]. The court
held: “The law, as hereinabove emphasized, indicates
no preference whatsoever as between two equally fixed
alternatives of penalty.” (Emphasis added.) Id. at 231
[302 P. 2d at 322]. Cf. 18 U.S.C.A. §1111.
Under sections 190 and 190.1 the discretion con-
ferred by the Legislature on the jury (or on the trial
court, where jury trial is waived) is absolute as to the
decision whether to fix the penalty for first degree
murder at life imprisonment or death, and a trial judge
is not authorized to innovate any rule limiting the exer-
cise of this discretion. The jury need not find ameliorat-
ing circumstances to impose life imprisonment, nor ag-
gravating circumstances to impose the death penalty.
In re Anderson, 69 Cal. 2d 613, 622 (1968) [447
P. 2d 117, 124].
However, the trial court may instruct the jury as
to the kinds of factors that they may consider on the
question of penalty, so long as the jury are not in-
structed to exclude factors which they are entitled to
consider or to include factors which lie outside the
scope of their proper discretion.
People v. Polk, 63 Cal. 2d 443, 451 (1965)
[406 P. 2d 641, 646];
People v. Morse, 60 Cal. 2d 631, 653 (1964)
[388 P. 2d 33, 47].
=— =
Capital cases have been reversed where the trial
court erroneously has instructed the jury at the con-
clusion of the penalty proceedings that they may not
be influenced by sympathy or pity for the defendant.
People v. Bandhauer, 1 Cal. 3d 609, 618-619
(1970) [463 P. 2d 408, 416];
People v. Stanworth, 71 Cal. 2d ...., ..... 71 A. C.
858, 880-881 (1969) [457 P. 2d 889, 904}.
The scope of the jury’s discretion on the matter of
penalty has been thus interpreted by the California
Supreme Court:
“.. . Section 190 does not impose the death pen-
alty, leaving discretion with the jury to substitute
a lesser penalty; it imposes neither death nor life
imprisonment, but with a perfectly even hand pre-
sents the two alternatives to the jury. The Legis-
lature, perhaps because of the very gravity of the
choice, has formulated no rules to control the exer-
cise of the jury’s discretion.” (Emphasis added.)
People v. Riser, 47 Cal. 2d 566, 575 (1956)
[305 P. 2d 1, 7].
However, the Riser opinion also made it clear that
the jury’s discretion is not to be exercised in an arbi-
trary manner:
“We did not suggest in the Green case, how-
ever, that section 190 did not require of the jurors
a meaningful choice between these alternatives, a
choice fundamentally based on the evidence and
made during and not before deliberation on the
verdict. The statute calls for the exercise of a le-
gal discretion, not for the unswerving application
—
of views formulated before trial that will compel
a certain result no matter what the trial may
reveal.” Id. at 575 [305 P. 2d at 7].
“The determination of penalty, . . . like the determina.
tion of guilt, must be a rational decision.”
People v. Love, 53 Cal. 2d 843, 856 (1960)
[350 P. 2d 705, 713].
Thus defense counsel is permitted broad leeway in
examining prospective jurors to ascertain whether their
state of mind would permit them to exercise their dis-
cretion in an impartial and unbiased manner on the
issue whether the defendant is fit to live.
People v. Mitchell, 61 Cal. 2d 353, 366-367
(1964) [392 P. 2d 526, 534-535];
People v. Hughes, 57 Cal. 2d 89, 94-97 and nn.
1, 2 (1961) [367 P. 2d 33, 35-37].
The voir dire examination conducted on this issue by
defense counsel in the instant case is a good example
of the broad range permitted. (See App. pp. 38-39,
44, 54, 62, 65-66.)
It is standard practice in California to instruct the
jury in the words of Penal Code section 190.1 at the
conclusion of the penalty phase in a capital case, and
the jury was so instructed in the present case:
“Ladies and gentlemen of the jury: It now be-
comes my duty to instruct you in the law that
applies to this phase of the trial and it is your
duty to follow the law as I shall state it to you.
On the other hand, it is your exclusive province to
determine the facts in the case, and to consider
and weigh the evidence for that purpose. The
authority thus vested in you is not an arbitrary
power, but must be exercised with sincere judg-
ment, sound discretion, and in accordance with
the rules of law stated to you.
“Now, both the People and the defendants have
a right to demand, and they do demand and ex-
pect, that you will conscientiously and reasonably
consider and weigh the evidence and apply the
law of the case, and that you will reach a just
verdict regardless of what the consequences of
such verdict may be.
“At the first phase of the trial you were given
instructions concerning the law applicable to this
case. It will not be necessary to repeat at this
time those instructions. With one notable excep-
tion those instructions are applicable to this
phase of the trial as well and you are to be guided
by them. The exception is that in this part of the
trial the law does not forbid you from being in-
fluenced by pity for the defendants and you may
be governed by mere sentiment and sympathy for
the defendants in arriving at a proper penalty ip
this case; however, the law does forbid you from
being governed by mere conjecture, prejudice,
public opinion or public feeling.
“The defendants in this case have been found
guilty of the offense of murder in the first de-
gree, and it is now your duty to determine which
of the penalties provided by law should be im-
posed on each defendant for that offense. Now, in
arriving at this determination you should consider
all of the evidence received here in court presented
by the People and defendants throughout the trial
before this jury. You may also consider all of
the evidence of the circumstances surrounding the
crime, of each defendant’s background and his.
tory, and of the facts in aggravation or mitigation
of the penalty which have been received here in
court. However, it is not essential to your deci-
sion that you find mitigating circumstances on the
one hand or evidence in aggravation of the of.
fense on the other hand.
“Evidence of other crimes alleged to have been
committed by a defendant may not be considered
as evidence in aggravation unless proved beyond
a reasonable doubt. Reasonable doubt is defined
as follows: It is not a mere possible doubt; be-
cause everything relating to human affairs, and
depending on moral evidence, is open to some
possible or imaginary doubt. It is that state of the
case, which, after the entire comparison and con-
sideration of all the evidence, leaves the minds of
jurors in that condition that they cannot say they
feel an abiding conviction, to a moral certainty,
that such other crimes have been committed by a
defendant.
“It is the law of this state that 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 jury. If you should fix
the penalty as confinement for life, you will so in-
dicate in your verdict. If you should fix the penal-
ty as death, you will so indicate in your verdict.
Notwithstanding facts, if any proved in mitiga-
tion or aggravation, in determining which punish-
ment shall be inflicted. you are entirely free to
act according to your own judgment, conscience, :
and absolute discretion. That verdict must ex-
press the individual opinion of each juror.
“Now, beyond prescribing the two alternative
penalties, the law itself provides no standard for
the guidance of the jury in the selection 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. In the determination of that
matter, if the jury does agree, it must be unani-
mous as to which of the two penalties is imposed.
“In this case you must decide separately the
question of the penalty of each of the two defend-
ants. If you cannot agree upon the penalty to be
inflicted on both defendants, but do agree as to
the penalty of one of them, you must render a
verdict as to the one on which you do agree.
“You shall now retire to the jury room. As I
have indicated, in order to return a verdict it is
necessary that all twelve of the jurors agree to
the decision. As soon as all of you have agreed
upon a verdict, you shall have it signed and dated
by your foreman and then return with it to this
room.” (App. pp. 221-223.)
The instruction given included the substance of that
denoted Number 8.80 in California Jury Instructions—
Criminal (3d ed. 1970),° an instruction which must
*The instruction is denoted Number 306.1 (New) in Cali-
fornia Jury Instructions—Criminal (Rev. ed. 1958). The in-
structions compiled in the cited volume are to be given in Cali-
fornia trial courts unless the trial judge “ ‘finds that a different
instruction would more adequately, accurately or clearly state
the law.’” Id. (3d ed. 1970) at p. xii, quoting Standards of
Judicial Administration Recommended by the Judicial Council
of the State of California, Section 5.
be given sua sponte, in the absence of any request
therefor. Id., 577, 584.
See also People v. Nye, 71 Cal. 2d ...., ...., 11
A.C. 376, 389-390 (n.5) (1969) [455 P. 24
395, 402-403];
People v. Durham, 70 Cal. 2d 171, 197-198
(n.23) (1969) [449 P. 2d 198, 215].
There are special instructions, applicable solely to
the penalty phase of a capital case, which must be givea
on the court’s own motion. These include the standard
instruction, which comprised part of the instruction in
the present case (App. p. 222), that the jury may con
sider evidence of other crimes only whe» the commis
sion of such crimes is proved beyond 2 zeasonable
doubt, California Jury Instructions—Criminal (3d ed.
1970), No. 8.81, and that the testimony of an accom-
plice to such other crimes must be corroborated. People
v. McClellan, 71 Cal. 2d ...., ....-..... 71 A.C. 831, 841-
846 (1969) [457 P. 2d 871, 877-881].
A defendant in a capital case is also entitled under
California law to have the trial court instruct the jury
sua sponte at the conclusion of the penalty phase as to
the general scheme of the parole system but admonish-
ing them not to consider the matter of eligibility for
parole in determining the defendant’s punishment. The
purpose of this instruction, first set out in People v.
Morse, 60 Cal. 2d 631, 648 (1964) [388 P. 2d 33,
43-44], is to remove from the jury the temptation to
consider the possibility that the defendant might be pre-
maturely paroled and to be influenced, for that reason,
toward returning a verdict of death. People v. Var-
num, 70 Cal. 2d 480, 489-491 and n.7 (1969) [450
P. 2d 553, 558-560]. This standard instruction (No.
oiitinn
8,82, California Jury Instructions—Criminal (3d ed.
1970)) was also given in the present case. (App. pp.
224-225.)
In addition to the foregoing instructions pertaining
to the penalty phase of a capital case, there are others
which, where applicable, are mandatory at the guilt
of a murder case (involving, ¢.g., diminished
mental capacity and specific intent) or mandatory under
certain circumstances regardless of the nature of the
offense. See California Jury Instractions—Criminal 571-
586 (3d ed. 1970). The trial judge’s duty to give
these various instructions on his own motion is one of
several important safeguards against the jury’s exer-
cising its discretion in an arbitrary manner in deter-
mining the matter of penalty in a capital case.
B All Competent, Relevant Evidence Permitting the Jury to
Judge the Accused, and Not Merely the Crime, Is Ad-
missible on the Issue Whether the Defendant in a Capital
Case Is Fit to Live
The jury’s function under California law at the penal-
ty phase of a capital case has been thus defined by
the California Supreme Court:
“The jury decides whether the individual should
be permitted to live upon the basis of a complete
and careful analysis of that person as a human
composite of emotional, psychological and genetic
factors. The jury looks at the individual as a
whole being and determines if he is fit to live. . . ore
People v. Morse, 60 Cal. 2d 631, 647 (1964)
[388 P. 2d 33, 43.]
See also Witherspoon v. Illinois, 391 U.S. 510,
521 (n.20).
With the objective of enabling the jury to exercise
the foregoing function in an informed and meaningful
manner, the California Legislature in 1959 expanded
the scope of evidence admissible on the issue of penalty
by amending Penal Code section 190.1 to provide in
relevant part:
“. . . Evidence may be presented at the further
proceedings on the issue of penalty, of the cir.
cumstances surrounding the crime, of the defend.
ant’s background and history, and of any facts
in aggravation or mitigation of the penalty... .”
Prior to the 1959 amendment, evidence on the issue of
penalty had been limited to “any evidence concerning
the commission of the crime admissible in the trial de-
termining the guilt of the defendant.” Cal. Penal Code
Annot. §190.1, Legislative History (Deering 1960).
This statutory expansion of the scope of permissible
evidence on the issue of penalty appears to have been
a direct reaction to a suggestion by the court in People
v. Friend, 47 Cal. 2d 749 (1957) [306 P. 2d 463],
wherein the reasons in support of a broader standard
of admissibility were set forth:
“The character and scope of evidence perti-
nent to punishment which should be received in a
case wherein the jury is required to fix the pen
alty, is a subject which could well receive legislative
attention. This state has long since accepted the
view (as recognized and implemented by the in
determinate sentence laws and other acts) that,
generally speaking, punishment should be fitted
to the perpetrator of the crime, not merely the
crime. In tailoring punishment for most offenders
the controlling agency has the benefit of a com-
plete study of the person. In the whole life story
the particular crime is an incident, a controlling
one for the time being, probably, but only one of
many which the board considers in reaching its
ultimate conclusion. It seems, therefore, incon-
gruous that in a case of first degree murder the
jury conceivably may be given the responsibility
of selecting life imprisonment or death as punish-
ment, but in making that determination may be
denied the full measure of enlightenment which
for less drastic punishments is available to the ad-
ministrative board. It appears that in this respect
the law, when and if so applied, continues the
outmoded view that punishment must inexorably
fit the crime, not the offender.” Id. at 763 (n.7)
[306 P. 2d at 471-472. ] |
Despite the wide variety of evidence admissible to
guide the jury in making its determination as to the
appropriate punishment for the defendant, and the rule
that neither side has the burden of proving which of
the alternative penalties is the proper one in the case
at hand, People v. Bandhauer, 66 Cal. 2d 524, 531
(1967) [426 P. 2d 900, 904-905], the California Su-
preme Court has set forth certain safeguards to protect
capital defendants from the use of improper evidence.
Initially, the limitations on the admissibility of evidence
on the issue of guilt are applicable to the penalty phase
of a capital case.
People v. Terry, 61 Cal. 2d 137, 149 (n.8)
(1964) [390 P. 2d 381, 389];
People v. Hamilton, 60 Cal. 2d 105, 129-131
(1963) [383 P. 2d 412, 426-428];
People v. Purvis, 56 Cal. 2d 93, 97-99 (1961)
[362 P. 2d 713, 715-716].
Among these restrictions are that “the evidence must
not be incompetent; it must not be irrelevant; that is,
of such a nature that its prejudice to defendant out.
weighs its probative value; and it must not be directed
solely to an attack upon the legality of the prior ad-
judication.” (Footnotes omitted.) People v. Terry, supra,
61 Cal. 2d at 144-145 [390 P. 2d at 386]. Cf. Wil
liams v. New York, 337 U.S. 241, 246-247. Thus evi-
dence that the victim died in unusual pain has been
held inadmissible on the issue of punishment where the
evidence did not indicate that that type of pain was
intended by the murderer. People v. Love, 53 Cal. 2d
843, 856-857 (1960) [350 P. 2d 705, 711-713].
Evidence of other crimes committed by the defend-
ant, if proved beyond a reasonable doubt and relevant
on the issue of penalty, may also be admissible on the
issue of penalty in a capital case, whether or not they
are in any way connected with the offense in chief and
whether they occurred prior or subsequent to the charged
offense. People v. Tahl, 65 Cal. 2d 719, 732-733 (1967)
[423 P. 2d 246, 254-255]. However, evidence of the
mere fact of the defendant’s prior arrest is inadmissible
where charges were not filed against him, he was re-
leased, and the offense itself is not proved. People v.
Hamilton, 60 Cal. 2d 51, 131-132 (1963) [383 P.
2d 412, 428]. Where the offense itself is sought to be
proved, it may not be established solely by extrajudicial
admissions of the defendant. Jd., 129-131 [383 P. 2d
at 426-427].
Similarly, evidence of an attempt by the defendant
to escape from death row has been held admissible.
People v. Pike, 71 Cal. 2d ...., ..... 71 A.C. 617, 622
(1969) [455 P. 2d 776, 778, 781].
—_
Such prior conduct in aggravation of penalty may
tend, of course, to show the defendant’s lack of re-
morse, his recidivism and lack of susceptibility to re-
habilitation, or the danger which he presents to so-
ciety.
A defendant may, for example, introduce evidence of
his broken home, his lack of education, his good record
in military service, and his development of a schizoid
personality as a result of his wartime experiences.
People v. Feldkamp, 51 Cal. 2d 237, 240 (1958) [331
P. 2d 632, 633-634]. See also People v. Butler, 65 Cal.
2d 569, 574-575 (1967) [421 P. 2d 703, 707]. Only
where the evidence proffered by the defendant is in-
competent or totally irrelevant to the matter of penalty
is it excluded.
See People v. Nye, 71 Cal. 2d ...., ..... 71 A.C.
376, 392 (1969) [455 P. 2d 395, 404];
People v. Mitchell, 63 Cal. 2d 805, 814-815
(1966) [409 P. 2d 211, 217].
A defendant also has the right to introduce evidence
which tends to show his innocence of the offense of
which he has just been found guilty, on the theory
that although the jurors may have been satisfied that
his guilt was proved beyond a reasonable doubt, they
may in their minds demand a greater degree of cer-
tainty to justify imposition of the death penalty. People
v. Terry, supra, 61 Cal. 2d at 145-147 [390 P. 2d at
387-388]. Likewise the standard jury instruction (No.
8.80, California Jury Instructions—Criminal (3d ed.
1970); see also App. p. 222) directs the jury to con-
sider, on the issue of penalty, all the evidence previ-
ously received on the issue of guilt.
C. Broad Leeway Is Permitted Counsel in Arguing to the Jury
Which Punishment Is Appropriate in Light of the Evidence,
So Long as the Jury’s Discretion Is Not Expanded to In
clude Extraneous Matters or Restricted by Foreclosing
Consideration of Proper Factors
In order to further “the Legislature’s strict neutrality
in governing the jury’s choice of penalty,” the California
Supreme Court in People v. Bandhauer, 66 Cal. 2d 524
(1967) [426 P. 2d 900], innovated a rule applicable
exclusively to penalty proceedings in capital cases, pro
viding for each side to have an opportunity to rebut the
other’s argument. Thus, instead of the usual practice
where the prosecution opens the argument, is answered
by the defense, and has an opportunity to respond in
closing argument, a fourth argument allowing the de-
fense to close in surrebuttal argument to any prosecu-
tion rebuttal argument, and thus have the last word,
is permitted in capital cases. Id. at 530-531 [426 P.
2d at 904-905].
The scope of the prosecution’s argument to the jury
at the conclusion of the penalty phase has been care-
fully circumscribed by the California Supreme Court
in order to ensure that the jury’s discretion is not ex-
panded to include extraneous matters or restricted by
foreclosing the jury from considering proper factors.
Thus argument on factual matters must be confined
to the evidence which has been heard by the jury or
to matters of common knowledge. People v. Bandhauer,
66 Cal. 2d 524, 529-530 (1967) [426 P. 2d 900,
903-904]; People v. Love, 56 Cal. 2d 720, 730 (1961)
[366 P. 2d 33, 37-40]. It is also forbidden to argue
that the defendant’s refusal to admit his guilt dem-
onstrates lack of remorse, People v. Coleman, 71 Cal.
—37—
9d ...., ----» 71 A.C. 1201, 1210-1211 (1969) [459 P.
4d 248, 254], or that if sentenced to life imprison-
ment the defendant may escape from prison, even where
he has previously attempted an escape. People v. White,
69 Cal. 2d 751, 761-762 (1968) [446 P. 2d 993,
998].
Arguments that are “calculated to mislead the jury”
or that “appeal primarily to passion or prejudice” are
not permissible.
People v. Love, 56 Cal. 2d 720, 731 (1960)
[366 P. 2d 33, 38].
See also People v. Purvis, 56 Cal. 2d 93, 99
(1961) [362 P. 2d 713, 716-717].
In view of the absence of conclusive data on the
question, and the fact that the desirability of the death
penalty is a legislative matter, it is improper for either
side to argue whether or not fear of the death penal-
ty is a deterrent. People v. Shipp, 59 Cal. 2d 845,
853 (1963) [382 P. 2d 577, 582]; People v. Love,
supra at 725-726, 731 [366 P. 2d at 35, 38-39]. Nor
may the prosecution’s argument direct the attention of
the jury to the fact that a defendant under life sentence
may be prematurely paroled after serving seven years
imprisonment. (Cal. Penal Code § 3046.) People v.
Morse, 60 Cal. 2d 631, 642-649 (1964) [388 P. 2d 33,
39-44]. It is also impermissible for the prosecution to di-
lute the jury’s sense of responsibility by alluding to the
possibility of appeal, to the power of the trial judge
and the California Supreme Court to correct the jury’s
mistakes by reviewing the conviction imposing the death
penalty, or to the Governor’s power to commute the
sentence or grant a pardon to the defendant (see Argu-
—38—
ment I(E) herein). People v. Morse, supra at 649-653
[388 P. 2d at 44-47]; People v. Linden, 52 Cal. 2d 1,
26-27 (1959) [338 P. 2d 397, 410]. Nor may ref.
erence be made to the possibility that the Legislature
might enact retroactive legislation reducing the punish.
ment for the defendant’s crime from death to life im.
prisonment. People v. Varnum, 61 Cal. 2d 425, 428.
429 (1964) [392 P. 2d 961, 962-963].
The bounds of permissible argument on the matter
of penalty have been made readily apparent by their
delineation in the California Supreme Court’s opinion
in People v. Friend, 47 Cal. 2d 749 (1957) [306 P.
2d 463]:
“. . . To aid the jury to act intelligently in making
their selection, counsel may properly argue their
respective views as to which punishment, under
all the circumstances shown, will be more appro-
priate and desirable in the cause of justice. To that
end, appeals to reason in the exercise of the jury’s
discretion may be proper; so also may be appeals
for clemency or for stern retribution. But the jury
must not be misled into thinking (or be permitted
to persist in an evidenced or known belief) that
their discretion in the selection of penalty, as be-
tween either of the two alternatives, is in any
way circumscribed or limited by law. Their dis-
cretion within that area is absolute and they should
be so informed.” Jd., 765 [306 P. 2d at 473].
~
p. A Particularly Stringent Rule of Prejudicial Error, Making
Any “Substantial” Error Per Se Cause for Reversal, Is
Applicable in California Exclusively to the Penalty Phase
of a Capital Trial
Except where an error is deemed to be of constitu-
tional magnitude, see Chapman v. California, 386 U.S.
18, 21-24, it is normally ground for reversal in Cali-
fornia appellate courts only where “after an examina-
tion of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” Cal. Const., art.
VI, § 13. This test for reversible error has been inter-
preted by the California Supreme Court to mean: “That
a ‘miscarriage of justice’ should be declared only when
the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to
the appealing party would have been reached in the
absence of the error.” People v. Watson, 46 Cal. 2d 818,
836 (1956) [299 P. 2d 243, 254].
However, instead of the foregoing standard a par-
ticularly stringent rule of prejudicial error has been
formulated by the California Supreme Court for error
occurring during the penalty phase of a capital case,
in view of the fact that there the issue is life or death
and the jury is given wide discretion on this matter:
“. . Conceivably, an error that we would hold
nonprejudicial on the guilt trial, if a similar error
were committed on the penalty trial, could be prej-
udicial. Where, as here, the evidence of guilt is
—40—
overwhelming, even serious error cannot be said
to be such as would, in reasonable probability,
have altered the balance between conviction and
acquittal. But in determining the issue of penalty,
the jury, in deciding between life imprisonment
or death, may be swayed one way or the other by
any piece of evidence. If any substantial piece or
part of that evidence was inadmissible, or if any
misconduct or other error occurred, particularly
where, as here, the inadmissible evidence, the mis.
conduct and other errors directly related to the
character of appellant, the appellate court by no
reasoning process can ascertain whether there is
a ‘reasonable probability’ that a different result
would have been reached in the absence of error.
If only one of the twelve jurors was swayed by
the inadmissible evidence or error, then, in the
absence of that evidence or error, the death pen-
alty would not have been imposed. What may
affect one juror might not affect another. The
facts that the evidence of guilt is overwhelming,
as here, or that the crime involved was, as here,
particularly revolting, are not controlling. This
being so it necessarily follows that any substan-
tial error occurring during the penalty phase of
the trial, that results in the death penalty, since
it reasonably may have swayed a juror, must be
deemed to have been prejudicial. . . .”
People v. Hamilton, 60 Cal. 2d 105, 136-137
(1963) [383 P. 2d 412, 431].
See also People v. Hines, 61 Cal. 2d 164, 168-
170 (1964) [390 P. 2d 398, 401-402].
_—
—
E. Multifaceted Review of Every Jury Verdict Imposing the
Death Penalty Is Afforded by the Trial Judge, the Califor-
nia Supreme Court, and the Governor Each Having—and
Often Exercising—Discretion to Supplant the Jury’s Deci-
sion
In evaluating the constitutional adequacy of the pro-
cedures applicable in California capital cases, and
specifically the adequacy of the standards given the
jury to guide the exercise of its discretion, a crucial
question is whether the jury’s decision that the defend-
ant shall suffer the death penalty is reviewable or in-
stead absolutely final.
In California the capital defendant has several oc-
casions to have his penalty reviewed.
(1) The Trial Judge’s Power to Reduce the Jury's
Death Penalty Verdict to Life Imprisonment
After the jury has returned a verdict imposing the
death penalty, and before final judgment is entered,
the defendant may move for a new trial, reduction
of the penalty, or both. The trial court may grant a
new trial or instead, without granting a new trial, re-
duce the penalty to life imprisonment or reduce the de-
gree of the offense so as to preclude the possibility of
a death sentence. Cal. Penal Code § 1181(6)(7).
In determining whether to reduce the punishment
from death to life imprisonment, the trial judge is
“free to exercise [his] discretion” based on his “own
independent view of the evidence.” He need not find
any error in the proceedings to justify a reduction of
penalty. People v. Moore, 53 Cal. 2d 451, 454 (1960)
[348 P. 2d 584, 586.]
A trial court may not rely on the jury’s verdict alone
“and thus shift its own responsibility to the jury. It
ha{s] an independent responsibility to give defendant
onlin
and the People the benefit of its own judgment ag t
whether or not the death penalty was proper.” People
v. Love, 56 Cal. 2d 720, 728-729 (1961) [366 P.24
33, 37]. Failure of the trial judge to consider
a motion for reduction of penalty is ground for vacat.
ing the judgment and remanding the case to the trial
court for reconsideration of the motion. Id., 729 [366
P. 2d at 37.]
Contrary to what is stated in the amicus curiae brief
filed by the N.A.A.C.P. Legal Defense Fund et al., it is
not “unworldly to suppose that California trial judges
do or will set aside a jury’s death verdict except in the
rarest cases.” Id., 71. In contrast to what may be
the practice under the Federal Kidnapping Act, see
United States v. Jackson, 390 U.S. 570, 573-574 (n. 7),
the trial judge’s power to set aside a death verdict in
California is exercised significantly.
No figures as to the number of instances in which
the power has been invoked are available either in pub-
lished form or in the files of the agencies concerned.
However, as illustration of the use by trial judges of
the aforementioned power, respondent directs the at-
tention of this Court to the fact that, in Los Angeles
County, judges reduced jury death verdicts to life im-
prisonment in two separate cases during a single week
earlier this year. People v. Isaac Jernigan, Los Angeles
Superior Court No. A-581816 (May 20, 1970); People
v. Vassie Washington, Jr., Los Angeles Superior Court
No. A-000400 (May 18, 1970).
The comments of the trial judges in the two cases
cast some light on the broad nature of this power and
on the willingness of trial judges to invoke it.
_
—_43—
In the Jernigan case the trial judge concluded that
although the defendant was legally sane, the jury did
not give proper weight to the evidence of the five
psychiatrists who examined him and testified as to his
mental condition. The psychiatrists had testified that
Jernigan, who shot to death his plant supervisor and
the president of his union, was mentally ill at the time
of the slaying. Id.;"° The Los Angeles Times, part 11, p.
1 (May 21, 1970).
In the Washington case, the California Supreme Court
had previously reversed the judgment insofar as it
related to penalty, on the ground that one of the pro-
spective jurors was excused for cause in violation of
the rule set forth in this Court’s opinion in Wither-
——_——
10The record of the proceedings, id., is as follows:
“THE COURT: The jury found the defendant guilty of
murder in the first degree as to two counts and murder of
the second degree as to one count and also found the defend-
ant legally sane at the time of the commission of the offenses.
These verdicts are fully supported by the evidence and I per-
sonally agree with them.
“In the determination of the penalty to be imposed under
Counts I and II, the Court is of the opinion that the jury did
not give proper weight to the evidence of the five medical
doctors, specialists in psychiatry, who examined the defend-
ant and testified as to his mental condition.
“In this connection, it is noted that human beings vary widely
by imperceptible degrees as to their mental health and it is
only persons whose mental illness reaches certain levels which
the law has set, perhaps somewhat arbitrarily, who are excused
from punishment for their acts.
“Nevertheless, the defendant’s mental health at the time of
the commission of the acts is, it seems to me, an important mat-
ter to be taken into consideration as to the nature of the pen-
alty. Further matters of importance are the heinous nature of
the crime and the effect thereof on the families of the victims.
In this connection, notwithstanding the great amount of sym-
pathy and compassion I feel for the families of Mr. Domonoske,
. McNett and Mr. Nolan, it must be realized that no punish-
(This footnote is continued on the next page)
asliien
spoon v. Illinois, 391 U.S. 510. People v. Washington,
71 Cal. 2d ........, » 71 A.C. 1105, 1134 (1969)
[458 P.2d 479, 496-497]. Upon retrial of the penalty
issue, the defendant was again given the death penalty
by a jury. The evidence before the jury indicated that
after a quarrel with his common-law wife, the defend.
ant had poured gasoline on two beds where four of her
children were sleeping and that he then set the gaso-
line on fire, burning to death one of the children. The
trial judge reduced the death verdict to life imprison-
ment after stating that he had “reviewed and
weighed the evidence during the trial independently of
the conclusion the jury reached” and had “considered
not only the evidence but the aims of the criminal
ment inflicted upon Mr. Jernigan will restore these men to their
families.
“Four of the psychiatrists | ve their medical opinion that
the defendant was mentally thee ti me
Ses damemenad ee paranoid ideas. The fifth remo aad
tified that the defendant had a paranoid-type
“A recognized psychological test was suggestive aa a ike
id - ;
In view of this evidence, it seems to the Court that it aa ae
comes the State to muster its gigantic t to put this sick
man to death and that the interests o} justice are served by
the State forebearing to exercise this power in this instance
and to imprison this defendant for life.
of Verlin sce who committed Bhs eo similar murders,
and who is still incarcerated after 30 years.
“Accordingly, the motion for new trial is denied, but
suant to Subdivision 7 of Section 1181 of the Penal Code,
verdicts as to Counts I and II are modified to provide punish-
a a ree ee ce ee om . -
_—
law.” The trial judge concluded that there had been
“s continuous buildup of some kind of passion” and
that, because of the unique set of circumstances, sen-
tencing the defendant to death would not serve as a
deterrent to others.
People v. Vassie Washington, Jr., supra, Los An-
geles Superior Court No. A-000400;
The Los Angeles Times, part II, p. 1 (May
19, 1970).
(2) The California Supreme Court's Power of
Appellate and Post-Appellate Review
Capital cases are reviewed directly by the Califor-
nia Supreme Court; non-capital cases are reviewed by
the Courts of Appeal, intermediate appellate courts
for the five appellate districts of the State, and gen-
erally by the California Supreme Court only when that
court in the exercise of its discretion granis a petition
for hearing after decision by the Court of Appeal.
Cal. Const., art. VI, § 11;
Cal. Rules of Court, Rules 28, 29.
California’s Penal Code section 1239(b) provides,
“When upon any plea a judgment of death is rendered,
an appeal is automatically taken by the defendant
without any action by him or his counsel.” The auto-
matic appeal stays execution of the death sentence. Cal.
Penal Code § 1243. The California Supreme Court
has interpreted section 1239(b) as requiring it to re-
—
view the record for errors not raised by the defendant
where the case is a capital case.
See People v. Goodridge, 70 Cal. 2d 824,
839 (1969) [452 P. 2d 637, 646-647];
People v. Robinson, 61 Cal. 2d 373, 388 (n. 14)
(1964) [392 P. 2d 970, 979].
The court has carried to great lengths its duty to
give particularly conscientious review to all capital
cases. Even where a capital defendant, expressing his
desire to die in the gas chamber, wishes to dismiss his
appointed counsel, proceed in propria persona, and dis-
miss his automatic appeal, the California Supreme
Court has felt itself bound to examine the entire record
to ascertain whether the defendant received a fair trial,
and to prepare a formal opinion for publication in the
official reports. See People v. Stanworth, 71 Cal. 2d
- » 71 A.C. 858, 867-873 (1969)
[457 P. 2d 889, 895-900]. In the Stanworth case the
court, contrary to the defendant’s wishes, reversed the
judgment insofar as it imposed the death penalty be
cause the jury had been erroneously instructed that it
could not be influenced by pity or sympathy for the
defendant. Id., 880-881 [457 P. 2d at 900-901].
The California Supreme Court has often stated that
in the absence of substantial error requiring reversal
of the verdict reached at the penalty phase of a capital
case, it will not “substitute its judgment as to choice of
penalty for that of the trier of fact.” People v. Ander-
son, 69 Cal. 2d 613, 623 (1968) [447 P.2d 117,
_— =
124]. Nevertheless, the exacting review given all cap-
ital cases by the California Supreme Court provides
capital defendants with an important safeguard against
the possibility of an arbitrary decision by the jury,
as indicated by the particularly stringent rules fash-
ioned by that court for the trial of capital cases, and
detailed in the preceding arguments herein.”
Under the doctrine of diminished capacity, the
court has frequently concluded that a capital defend-
ant lacked capacity to reflect maturely upon the con-
sequences of his acts, the court deeming inadequate
the evidence of the defendant’s ability to premeditate in
light of the psychiatric evidence presented at the trial.
In such instances the court has reduced the degree of
the offense from first degree murder to second degree
murder, which offense carries a punishment of five
years to life, without remanding the case for a new
trial.
See, e.g., People v. Bassett, 69 Cal. 2d 122,
148 (1968) [443 P.2d 777, 794];
People v. Nicolaus, 65 Cal. 2d 866, 883
(1967) [423 P.2d 787, 799];
People v. Goedecke, 65 Cal. 2d 850, 861
(1967) [423 P.2d 777, 784-785];
itWhen a defendant who is tried for a capital offense re-
ceives life imprisonment and successfully appeals his conviction,
under no circumstances may he be given the death penalty
upon his retrial. People v. Henderson, 60 Cal. 2d 482, 495-
497 (1963) [386 P. 2d 677, 685-686}. Cf. Moon v. Mary-
land, 398 U.S. 319, 320; North Carolina v. Pearce, 395 US.
711, 719-723.
euliiias
People v. Ford, 65 Cal. 2d 41, 59 (1966)
[416 P.2d 132, 143].
The court has acted similarly where its review of the
evidence left it unconvinced beyond a substantial doubt
as to the sufficiency of the evidence of actual pre
meditation or specific intent to commit one of the
felonies which, under the felony-murder rule, rendered
the offense murder in the first degree, punishable by
death.
See People v. Anderson, 70 Cal. 2d 15, 36
(1968) [447 P.2d 942, 955].
See also People v. Hall, 62 Cal. 2d 104,
108-112 (1964) [396 P.2d 700, 703-705}
(reversing a second-degree murder conviction
on the ground that the evidence identifying
the defendant as the perpetrator of the crime
was insufficient).
It is abundantly evident from the California Supreme
Court’s collective disposition of capital cases during
the last several years that the court accords each capital
defendant a meaningful review of the proceedings by
which the jury or trial judge imposed the death penalty.
Respondent’s examination of the official case reports
discloses the following figures for the preceding five-
year period, from September 1, 1965, to September
1, 1970:
COPY BOUND
_
TABLE A
DEFENDANTS UNDER SENTENCE OF DEATH
REVIEWED BY THE CALIFORNIA SUPREME COURT, 1965-1970*
pERIOD DIRECT APPEALS ORDER TO SHOW CAUSE ISSUED
Writ Granted—
Death Penalty, Death Penalty,
Conviction, Conviction,
Affirmed in or Both Writ or Both
Total Entirety Set Aside Denied Set Aside
1 Sept 1
1965-1967 50 25 (50%) 25 (50%) 0 4
1 Sept 1
1967 - 1970 59 18(31%) 41 (69%) 0 15
Total
1 Sept 1
45-1970 109 43 (39%) 66 (61%) 0 19
“ome defendants appear in this table more than once in that their judgment
ing the death penalty was considered in successive proceedings by the court.
Gilbert in People v. Gilbert, 63 Cal. 2d 690, appears in one instance
both an affirmance and a reversal due to the fact that in a single proceeding
count imposing the death penalty was reversed and another such count
The cases comprising this table are collected in the Appendix to Re-
's Brief, infra, with references to which theory, or which felony under the
rule, formed the basis for fixing the murder in the first degree.
distinguishing features of the offense particularly pertinent to the determina-
of penalty are also indicated. In approximately 5% of the cases jury trial was
wed and the issue of penalty tried to the court.
ND CLOSE IN CENTER
—s50—
The following specific cases illustrate the close scry-
tiny which the California Supreme Court gives to cap.
ital cases (and the difficulty which prosecutors have at
the present time in obtaining a final judgment imposing
the death penalty).
One defendant, whose capital offenses were com-
mitted over ten years ago, has on six occasions re.
ceived full review of his case by the California Sy-
preme Court, involving in each instance the prepara-
tion of a published opinion. On the last occasion the
judgment was reversed insofar as it imposed the death
penalty, on the ground that the jury selection process
did not conform to this Court’s mandate in Witherspoon
v. Illinois, 391 U.S. 510.% The defendant's penalty
retrial is currently stayed pending the outcome of the
case at bar. Another capital defendant has had his case
reviewed extensively on four occasions by the California
Supreme Court and is currently before this Court on
petition for writ of certiorari.”
The California Supreme Court ordered a fifth penalty
trial for one capital defendant, who murdered a police
officer more than ten years ago, only to stay such pro-
12§ee People v. Seiterle, 56 Cal. 2d 320 (1961) [363 P. 2d
913]; Seiterle v. Superior Court, 57 Cal. 2d 397 (1962) [369
P. 2d 697]; People v. Seiterle, 59 Cal. 2d 703 (1963) [381
P. 2d a cert. denied, 375 U.S. 887; In re Seiterlie, 61 Cal.
2d 651 (1964) [394 P. 2d 556], cert. denied, 379 US.
992; People v. Seiterle, 65 Cal. 333 (1966) [420 P. 2d
~ cert. denied, 387 U.S. 912; In re Seiterle, 71 Cal. 2d
wg 21 A.C. 722 (1969) [456 P. 2d 129].
18See People v. Varnum, 61 Cal. 2d 425 (1964) [392 P.
2d 961]; In re Varnum, 63 Cal. 2d 629 (1965) [408 P. 2d
97); People v. Varnum, 66 Cal. 2d 808 (1967) [427 P. 2d
772}, cert. denied, 390 US. 529; People v. Varnum, 70 Cal.
2d 480 (1969) [450 P. 2d 553], petition for cert. filed
(Oct. Term. 1970, No. 5047).
—
ceedings a few months later in issuing an order to show
cause, which is still pending before that court, why the
judgment should not be reversed in its entirety.*
Finally, there is the case of the defendant whose
judgment imposing the death penalty was reversed on
a rule of law that was totally novel to California
courts, to wit, that it would henceforth be deemed im-
proper for a prosecutor or a trial judge to inform the
jury of the fact that a defendant under life sentence is
eligible for parole after serving seven years imprison-
ment. (Cal. Penal Code § 3046). On retrial of the
penalty issue, the jury imposed a life sentence on the
murder charges. While in his cell awaiting formal sen-
tencing, the defendant garrotted a fellow prisoner with
a mattress cover. The defendant killed the other prison-
er, who was on the other side of the bars, because he
owed the defendant some cigarettes. For this offense
the defendant was tried by jury and sentenced to death.
Last year the California Supreme Court, in two sep-
arate opinions filed the same day, reversed both cases.”
In addition to the automatic appeal in all capital
cases, and the right to petition the California Supreme
Court for rehearing in such cases, various writs and
other means of collateral extraordinary relief are avail-
able in the California Supreme Court and other Cali-
“See People v. Terry, S7 Cal. 2d 538 (1962) [370 P. 2d
985], cert. denied, 375 U.S. 960; People v. Terry, 61 Cal. 2d
137 (1964) [390 P. 2d 381]; People v. Terry, 70 Cal. 2d 410
(1969) [454 P. 2d 36], cert. denied, 379 U.S. 866; In re
Terry, 1 Cal. 3d, Minutes, p. 1 (November 12, 1969).
People v. Morse, 60 Cal. 2d 631 (1964) [388 P. 2d 33];
In re Morse, 70 Cal. 2d 702 (1969) a P. 2d 601]; Peo
v. Morse, 70 Cal. 2d 711 (1969) [452 P. 2d 607], cert. de-
nied, 397 U.S. 944.
—_— =
fornia courts: habeas corpus, mandamus, certiorari,
prohibition, coram nobis, and petition to recall the
remittitur.
Cal. Const., art. VI, § 10;
Cal. Penal Code §§ 1265, 1473-1508;
Cal. Rules of Court, Rule 25(d).
See also Witkin, California Criminal Procedure
744-795, and 1969 Supplement 364-385;
People v. Sanchez, 70 Cal. 2d 562 (1969) [451
P.2d 74] (vacating previous opinion affirm-
ing death penalty, on petition to recall re.
mittitur).
Under California law a defendant in a capital case
has a particularly absolute right to a trial free from
community pressure, enforceable in advance of trial by
writ of mandate of an appellate court to compel change
of venue, or by reversal of the judgment where change
of venue has been erroneously denied by the trial
court.
People v. Tidwell, 3 Cal. 3d 62, 75-76 (1970)
[ .... P.2d ...., ....] (Crim. 12057, August 28,
1970);
Maine v. Superior Court, 68 Cal. 2d 375 (1968)
[438 P. 2d 372].
In furtherance of the right of capital defendants to
post-appellate review, the California Supreme Court has
made the following special provision for appointment of
counsel:
“ _ . We believe that it will protect the interests
of defendants and promote the cause of justice
=— =
for this court to appoint counsel to represent in-
digent defendants in capital cases in the following
proceedings undertaken between the termination
of their state appeals and their execution: (a) Pro-
ceedings in this court for post-conviction review;
(b) Proceedings for appellate or other post-con-
viction review of state court judgments in the
United States Supreme Court, subject however to
the power of that court to appoint counsel therein;
(c) Applications for executive clemency, and the
conduct of sanity hearings where indicated. Here-
after, as a matter of policy, and upon application
of the defendant, we will appoint counsel in such
instances. Any request for the appointment of
counsel in any other proceeding should be ad-
dressed to the court in which the proceeding is
brought.” (Footnote omitted.)
In re Anderson, 69 Cal. 2d 613, 633-634
(1968) [447 P. 2d 117, 131].
See also Cal. Penal Code § 1239(b) (as amend-
ed 1968).
The lower federal courts have similarly provided for
the appointment of counsel to represent indigent Cali-
fornia capital defendants in collateral proceedings be-
fore those courts.
In addition to the foregoing remedies available to
capital defendants, there is also provision for the ward-
en of the state prison to whom the capital defendant
is entrusted to inform the district attorney of the county
of any doubt as to the defendant’s sanity. The district
attorney must thereupon file in the superior court a
acerca EE TRH RCC aaa ry —
———-—+
sialllitiois,
petition for a sanity hearing. Cal. Penal Code §§ 3700.
3706. See In re Kemp, 1 Cal. 3d 190, 192(n.1) (1969)
[460 P.2d 481, 482]. A defendant under sentence of
death also has the right to have himself examined
by a psychiatrist of his own attorney’s choice. In re
Ketchel, 68 Cal. 2d 397 (1968) [438 P.2d 625].
(3) The Governor's Frequently Exercised Power to
Grant a Pardon or Commutation, and His Auto-
matic Review of All Capital Cases
California Penal Code section 1218 provides:
“The judge of the court at which a judgment
of death is had, must, immediately after the judg-
ment, transmit to the Governor, by mail or other-
wise, a statement of the conviction and judgment,
and a complete transcript of all the testimony giv-
en at the trial including any arguments made by
respective counsel and a copy of the clerk’s tran-
script.”
The Governor has broad powers to investigate, grant
a pardon or reprieve, or commute the sentence of a
prisoner in a capital case.
Cal. Const., art. V, § 8;
Cal. Penal Code §§ 4800-4906.
That this power is an additional meaningful safe
guard on the procedures by which the death penalty
is imposed in California is evident from the frequency
with which this power is exercised. The use of such
power by the current Governor and his predecessor is
indicated by the following figures obtained from the
files of Associate Warden James W. L. Park of the
California State Prison at San Quentin:
—55—
TABLE B
COMMUTATIONS OF DEATH SENTENCES IN
CALIFORNIA, 1959-1970
Capital Cases Executions Commutations
Governor Edmund G. Brown 35 23
1959-1966
Governor Ronald Reagan 1 1
1967-1970
The reason for the lower figures in recent years is
that the California Supreme Court, as well as other
California and lower federal courts, as a matter of
course issued stays of execution to capital defendants
during the pendency of the proceedings in In re An-
derson, 69 Cal. 2d 613 (1968) [447 P.2d 117], in
which the constitutionality of the procedures by which
the death penalty is imposed was at issue, and similar-
ly this Court and the lower federal courts have issued
such stays during the pendency of Maxwell v. Bishop,
398 U.S. 262, and the case at bar. See People v. Good-
ridge, 70 Cal. 2d 824, 839 (1969) [452 P.2d 637, 646].
The issuance of these stays is also in part responsible,
with the multitude of reversals in capital cases, for the
increase to 90 in the number of persons under sentence
of death in California as of September 1, 1970. Califor-
nia State Prison at San Quentin, Monthly Execution
Data (September 1, 1970).** Concurrently the median
time spent by prisoners awaiting execution in the United
States has increased from 14.4 months in 1961 to 39.2
months in 1969. U.S. Bureau of Prisons, National Pris-
oner Statistics—Capital Punishment 1930-1969 (Table
4) (1970) (Preliminary Draft, not yet published).
Of these 90 persons 41 were committed from Los An-
geles County. One of the 90 is a woman. Jd.
—
F. The Flexible Guidelines Given the Jury at the Penalty Phas
of a California Capital Case Are Constitutionally Preferable
to the Fixed Standards Elsewhere Proposed
The preceding arguments have detailed the workings
of the bifurcated trial system in California capital cases
—the applicable statutes, the standard jury instruc.
tions, the special rules governing the admissibility of
evidence and the scope of argument, the unique stand-
ard of prejudicial error, and the myriad opportuni-
ties for judicial and executive review of the jury’s de
cision.
In evaluating the procedures here in question, great
weight must be attached to the scheme of judicial
decisions, executive powers, and related practices that
have evolved around the conduct and review of capital
penalty proceedings in California. This Court has
stressed that it “ordinarily accepts the construction giv-
en a state statute in the local courts and also presumes
that the statute will be construed in such a way as to
avoid the constitutional question presented, Fox v.
Washington, 236 U.S. 273; Poulos v. New Hampshire,
345 U.S. 395.”
Baggett v. Bullitt, 377 U.S. 360, 375.
See also Coleman v. Alabama, 399 US. 1, 9.
It is in the context of this functioning, viable system
that the question must be asked and answered: was
the standard instruction, which was given the jury to
guide it in evaluating the factors it might consider in
fixing petitioner's punishment, vague and conducive to
an arbitrary verdict so as to violate petitioner’s consti-
tutional right to due process of law?
= =
Any such inquiry begins with the presumption that
California Penal Code section 190.1, the statute from
whose words the standard instruction is borrowed, is
constitutionally valid, notwithstanding the possibility
that application of the statute may conceivably result
in there being some leeway insofar as similarly situated
persons are affected. McGowan v. Maryland, 366 US.
420, 425-428; Salsburg v. Maryland, 346 US. 545,
553-554. This presumption is strengthened by the cir-
cumstance that the procedure under attack lies at the
heart of the States’ police power, involving as it does
the right of the people as expressed directly or through
their legislature to prescribe the manner of trial and pun-
ishment for those who commit what are deemed the
most heinous of crimes. Under our federa) system this
factor is entitled to great weight. Salsburg v. i¢aryland,
supra at 550.
A state rule of procedure “does not run foul of the
Fourteenth Amendment because another method may
seem to our thinking to be fairer or wiser or to give
a surer promise of protection to the prisoner at bar.”
Snyder v. Massachusetts, 291 U.S. 97, 105.
“Tolerance for a spectrum of state procedures
dealing with a common problem of law enforce-
ment is especially appropriate here. . . .”
“. . With [violent crime] the major problem
that it is, substantial changes in trial procedure in
countless local courts around the country would
be required were this Court to sustain the conten-
tions made. . . . To take such a step would be
quite beyond the pale of this Court’s proper func-
tion in our federal system. It would be a wholly
unjustifiable encroachment by this Court upon the
-_
constitutional power of States to promulgate their
own rules of evidence to try their own State
created crimes in their own state courts, so long
as their rules are not prohibited by any provi-
sion in the United States Constitution. . . .”
Spencer v. Texas, 385 U.S. 554, 566, 568.
569.
See also Williams v. New York, 337 US. 241,
251.
In this context it bears mention that in evaluating
constitutional claims, this Court has not blinded itself
to practical considerations, such as the effect of its
rulings on the administration of justice. See Johnson vy,
New Jersey, 384 U.S. 719, 728; Elkins v. United States,
364 U.S. 206, 222. While never conclusive where the
constitutional rights of an accused are at stake, such
considerations weigh heavily in the exercise of this
Court’s constitutionally mandated duty to balance com-
peting interests, see Camara v. Municipal Court, 387
US. 523, 534-537, in determining whether to invalidate
as unconstitutional a legislative enactment or judicial
rule of state practice. Leland v. Oregon, 343 US. 790,
798.
Thus it is significant that the laws of 39 of those 41
States, as well as of the United States and the District
of Columbia, which prescribe the death penalty as a
proper punishment, would be overturned by the blanket
rejection, sought by amici curiae N.A.A.C.P., et al.,
of all penalty determination under flexible standards.”
1TSee Special Issue, A Study of the California Penalty Jury
in First-Degree-Murder Cases, 21 Stan. L. Rev. 1297, 1432-
1438 (1969) (compilation of jurisdictions having the death
awe
—
The mandating of discretionless deliberations on the
issue of who is fit to live would perhaps ensure im-
munity from capital punishment to those criminals
who even inside the prison walls present the greatest
danger to their fe'low man,” in view of the possibility
that application of any procedures enacted subsequent
to an adverse decision by this Court on the issue in
question would be held unconstitutional as ex post
facto. See also United States v. Jackson, 390 USS.
570, 580.
Another foundational underpinning of the procedure,
by which the jurisdictions in this country having the
death penalty submit the matter of capital punishment
to the discretion of the jury, is the doctrine of stare
decisis under which weight must be given the decisions
of this Court’ sanctioning the procedure in question.
Andres v. United States, 333 U.S. 740, 742-
744;
penalty with citations as to what standards, if any, exist to
guide the jury—although respondent does not necessarily ac-
the authors’ characterization of the various statutes, par-
ticularly of California’s as having no standards; however, this
difference of view may be merely a semantic discrepancy).
There are two States in which the death penalty, where pro-
vided by law, is mandatory. Id., 1437.
18In a recent seven-year period, a total of 68 California
prisoners died as the result of criminal homicide by a fellow
inmate. California Bureau of Criminal Statistics, Death in Cus-
peri
tember 1, , to September 1, 1970, there were 16 adult
felons killed by fellow inmates in California, and two staff
members of the Department killed by inmates.
19S¢e also, ¢.g., In re Ernst’s Petition, 294 F. 2d 556, 560-
561 (3d Cir. 1961), cert. denied, 368 U.S. 917; Ochoa v.
United States, 167 F. 2d 341, 345 (9th Cir. 1948); Ex Parte
Sullivan, 83 F. 2d 796, 798 (9th Cir. 1936); In re Anderson,
os
Winston v. United States, 172 U.S. 303, 342.
313.
“. . . [U]nguided discretion in the choice between
penalties which may be imposed under a first de.
gree [murder] verdict has long been characteristic
of the laws of the United States and of many
states... .”
' .'In re Ernst’s Petition, supra, 294 F. 2d at 560,
See also 18 U.S.C.A. § 1111;
Mathes and Devitt, Federal Jury Practice and
Instructions 310-311;
Special Issue, A Study of the California Penalty
Jury in First-Degree-Murder Cases, 21 Stan.
L. Rev. 1297, 1432-1438 (1969) (see n. 17,
infra).
While not desiring to enter the metaphysical debate
which brews over the meaning of this Court’s eighth
footnote in Giaccio v. Pennsylvania, 382 U.S. 399,
69 Cal. 2d 613, 621-628 (1968) [447 P. 2d 117, 123-128);
State v. Walters, 145 Conn. 60 (1968) [138 A. 2d 7
792-794], appeal dismissed and cert. denied, 358 US. 46;
People v. Bernetie, 30 Ill. 2d 359 (1964) [197 N.E. 2d 436,
443]; State v. Latham, 190 Kan. 411 (1962) [375 P. 2d 788,
796-799], cert. denied, 373 U.S. 919; Chatterton v. Dutton,
223 Ga. 243 (1967) [154 S.E. 2d 213, Mc y de-
nied, 389 U.S. 914; State v. Forcella, 52 N.J. 263 en
245 A. 2d 181, 193-194]; Johnson v. Commonwealth,
a. 481 (1968) [158 S.E. 2d 725, 729-730]; State v. White,
60 Wash. 2d 551 (1962) [374 P. 2d 942, 954-955], cert.
denied, 375 U.S. 883.
2(Ijn England the death penalty, wherever applicable
by statute, was mandatory on the trial .” H. Kalven
& H. Zeisel, The American Jury 434 (1966). For other na-
1902) see United Nations, Capital Punishment 11-13 (N.Y.
_
403," respondent wishes to stress that the procedure
at issue in the case at bar has little in common with
the practice invalidated in Giaccio. Entrusting to the
jury's discretion the decision whether a capital defend-
ant is fit to live involves considerations quite distin-
guishable from the problems caused by a statute “so
vague and standardless that it . . . leaves judges and
jurors free to decide, without any legally fixed stand-
ards, what is prohibited and what is not in each
particular case." (Emphasis added.) Id., 402-403.
21“Jn so holding [that a statute permitting a jury, without
any standards, to assess costs against an acquitted defendant
violates the due process clause] we intend to cast no doubt
many States to leave to juries defendants guilty of cs
crime
limits.” Id., 405. See Petitioner’s Brief, p. 20; Brief Amicus
Curiae filed by the N.A.A.C.P. Legal Defense Fund, et al.,
p. 60.
2¢{, People v. Daniels, 71 Cal. 2d ...., ---» 71 AC. 1165,
1175 (1969) [459 P. 2d 225, 230-231]:
«Tt is true that an effort to define the phrase, ‘another
of the same coun ”’ in terms of a specific number
of inches or feet or would be open to a charge of
arbitrariness. But it does not follow, conversely, that a defi-
nition other than in such terms would necessarily be ‘un-
certain’ in any legally objectionable sense of the word.
The law is replete with instances in which a person must,
at his peril, govern his conduct [and the jury must gauge
it} by such non-mathematical standards as ‘reasonable,’
a, ‘necessary and r,’ ‘substantial,’ and the like.
a wide gee human activities is
us one man may be given a §
y
of wilful homicide if he misjud ‘reasonable’ amount
of force he may use in repelling an assault [citations].
As the Supreme Court said in Go-Bart Importing ©o. v.
United States (1931) 282 U.S. 344..., “ is no for-
mula for the determination of reasonableness.’ Yet stand-
ards of this kind are not impermissively vague, provided
their meaning can be objectively ascertained by reference
to common experiences of mankind.” (Emphasis added.
See also Nash v. United States, 229 U.S. 373, 377.
titties
Nor do the flexible guidelines which govern proceedings
on the matter of penalty in California capital cages
saddle the murder defendant with “general abstract
charges” against which “[i]t would be difficult if not
impossible for a person to prepare a defense,” Id,
404. See Maxwell v. Bishop, 398 F. 2d 138, 149-150
(8th Cir. 1968), rev’d on another ground, 398 US,
262.
Clearly, at the time he committeed his crime any
legally sane murderer was on “notice” as to the un-
lawfulness of those acts comprising the offense of mur-
der, see Ginsberg v. New York, 390 U.S. 629, 643,
and he and his counsel have full and unrestricted op-
portunity to prepare a defense at the initial stage of the
proceedings involving the sole issue of guilt. Cf. Garner
v. Louisiana, 368 U.S. 157, 173. In the event the de-
fendant is found guilty, he has the opportunity to pre-
sent at the penalty phase of the proceedings all favor-
able or mitigating evidence concerning the offense and
relating to his entire life background. What task could
be easier for any attorney or his client? Virtually any-
thing and everything helpful to the defendant, and rele-
vant to the type of man he is, is admissible. Even the
most vicious criminal is able to select some incident
in his present or in his early years to evoke a measure
of sympathy from the jury. See, e.g., People v. Good-
ridge, 70 Cal. 2d 824, 832-833 (1969) [452 P. 2d
637, 642] (necrophilic sodomite’s unhappy childhood).
And where the defendant has pleaded insanity as a
separate defense, he receives a trifurcated trial in
California, the issue of sanity being tried by the jury
after the guilt issue and before the penalty issue. Cal.
Penal Code §§ 190.1, 1026. In that event he is ex-
amined at government expense by at least two court-
appointed psychiatrists.
Cal. Penal Code § 1027.
See also Cal. Penal Code §§ 1368-1370.
The argument is made that, regardless of the rules de-
fining the scope of the jury’s proper exercise of discre-
tion and the type of evidence and argument permissible
at the penalty phase of a capital case in California, the
jury is free to fix the penalty at death on an arbitrary,
impermissible basis such as race, social-economic status,
the color of the defendant's hair, etc.
To the extent humanly possible, California pre-
cludes such arbitrariness by its standard jury instruc-
tions, which tell the jury to “consider all of the evidence
received here in court . . . throughout the trial” and
that “the authority thus vested in you is not an
arbitrary power, but must be exercised with sincere
judgment, sound discretion, and in accordance with
the rules of law stated to you.” California Jury In-
structions—Criminal (3d ed. 1970), Nos. 1.30, 8.80.
(See App. pp. 221, 222.)
To state the obvious, there is no instruction or pro-
cedure conceivable in the criminal process that would
preclude the possibility of a juror’s (or for that matter,
a judge’s) fixing the penalty at death for reasons of bias
or whim. “[I]n considering whether a rigid con-
eeiiiien
stitutional barrier should be created, it must be re
membered that there is possibility of abuse wherever a
judge must choose between life imprisonment and
death.”* Williams v. New York, 337 U.S. 241, 251%
But the standard California jury instructions confine
the chance of a verdict being arbitrarily fixed to a
humanly and constitutionally acceptable range. If any.
thing, the procedures applicable to capital cases in Cali-
fornia have put the advantage on the defendant's side
of the “line of neutrality.” Witherspoon v. Illinois, 39}
US. 510, 520. See id., 532, 536 (dissenting opinion of
Black, J., concurred in by Harlan, J., and White, J.).
There is a vital distinction between what the jury
may conceivably do on its own and what it may do at
the direction of the trial judge, the prosecution, or any
other facet of the trial court setting. As this Court
stated in the context of those inferences which may be
drawn from the failure of an accused to testify in his
own behalf,
“. . . It is said, however, that the inference of guilt
for failure to testify as to facts peculiarly within
the accused’s knowledge is in any event natural
and irresistible, and that comment on the failure
does not magnify that inference into a penalty for
asserting a constitutional privilege. People v. Mo-
desto, 62 Cal.2d 436, 452-453, 398 P. 2d 753,
°8See also Beauharnais v. Illinois, 343 U.S. 250, 263; Harris
v. United States, 331 U.S. 145, 155: “[W]e should not permit
our knowledge that abuses sometimes occur to give sinister
coloration to procedures which are basically reasonable.”
24In the Williams case this Court found the trial judge's
discretion constitutionally unobjectionable even though he was
free to consider inadmissible hearsay evidence on the issue of
penalty. Id., 244-250. Cf. People v. Terry, 61 Cal. 2d 137,
144-145 (1964) [390 P. 2d 381, 386].
—65—
762-763. What the jury may infer, given no help
from the court, is one thing. What it may infer
when the court solemnizes the silence of the ac-
cused into evidence against him is quite another.
Griffin v. California, 380 U.S. 609, 614.
What more can be done than giving the jury instruc-
tions which tell them to base their verdict on speci-
fied permissible criteria and not to exercise their dis-
cretion arbitrarily? All that can ever be hoped for is
that jurors passing on the ultimate question whether
the defendant is “fit to live,” Witherspoon v. Illinois,
supra at 521 (n. 20); People v. Morse, 60 Cal. 2d
631, 647 (1964) [388 P. 2d 33, 43], will obey these
instructions and having been selected by constitutional-
ly permissible means will exercise their function as the
“sonscience of the community," Witherspoon v. Illi-
nois, supra at 519, thereby according both the defense
and the prosecution a fair and impartial trial.
As this Court stated with reference to a venireman’s
attitude, in advance of trial, on the issue of penalty
in a capital case,
« __ the most that can be demanded of a venire-
man in this regard is that he be willing to consider
all of the penalties provided by state law, and that
he not be irrevocably committed, before the trial
has begun, . . . regardless of the facts and circum-
“In our criminal courts the jury sits as the representative
of the community; its voice is that of the society inst. which
the crime was committed.” Williams v. New York, 337 US.
241, 253 (dissenting opinion of Murphy, J.). —
—66—
stances that might emerge in the course of the pro.
ceedings.” (Emphasis by the Court.)
Witherspoon v. Illinois, supra, 391 US. at 522
(n. 21).
“, . . [O]ne of the most important functions any
jury can perform in making such a selection [be
tween life imprisonment and the death penalty] is
to maintain a link between contemporary com-
munity values and the penal system—a link with-
out which the determination of punishment could
hardly reflect ‘the evolving standards of decency
that mark the progress of a maturing society.”
(Emphasis added.)
Witherspoon v. Illinois, supra, 391 U.S. at 519
(n. 15), quoting from Trop v. Dulles, 356
U.S. 86, 101 (opinion of Warren, C.J., joined
by Black, J., Douglas, J., and Whittaker, J).
The issue at hand then is not whether fixed standards
for jury determination of penalty in capital cases are
legislatively, philosophically, or sociologically advisable,
but rather whether they are constitutionally compelled
to assist the jury in performing its function as “a link
between contemporary community values and the
penal system.” Witherspoon v. Illinois, supra, 391 US.
at 519 (n. 15).
Respondent submits that petitioner and amici curiae
N.A.A.C.P. et al. have failed to demonstrate that
fixed standards are preferable on the basis of any
criteria, let alone that “the absence of expressly stated
standards in the statute requires that it be forthwith
condemned constitutionally.” Maxwell v. Bishop, 398
F. 2d 138, 149 (8th Cir. 1968), rev'd on another
ground, 398 U.S. 262.
a
It has been judicially observed that it may be
“neither practicable nor desirable that any stated cri-
teria should control a jury” in deciding between life im-
prisonment and the death penalty.
In re Ernst’s Petition, supra, 294 F. 2d 556,
560 (3d Cir. 1961).
See also Winston v. United States, supra, 172
US. 303, 312;
In re Anderson, supra, 69 Cal. 2d 613, 625
(1968) [447 P. 2d 117, 125] (“But even if
it were practicable and desirable to have such
a formula it does not follow that the Legisla-
ture’s failure to provide one renders the sec-
tions unconstitutional”);
State v. Johnson, 34 N.J. 212 (1961) [168
A. 2d 1, 10-11], appeal dismissed “for want
of a substantial federal question,” 368 U.S.
145, cert. denied, 368 U.S. 933;
Royal Commission on Capital Punishment 1949-
1953 Report, 173-177, 195.
As the New Jersey Supreme Court significantly ob-
served, “Indeed, legislative specification of criteria for
recommendation of life imprisonment might prejudice
a defendant through the exclusion by omission of a fac-
tor relevant in a given case.” State v. Johnson, supra,
168 A. 2d at 10-11. Moreover, the California Legis-
lature, by entrusting the decision between life imprison-
ment and the death penalty to the discretion of the
jury, has indicated its belief that jurors understand the
factors that are relevant to such a decision. People v.
Polk, 63 Cal. 2d 443, 451 (1965) [406 P. 2d 641,
646].
—
It is also
“, . . a matter of legislative history in most jurisdic.
tions . . . that the conferring of [discretionary]
power upon juries is potentially advantageous and,
in no way hurtful to persons convicted of first
degree murder, for the antecedent statutes rather
generally made the death sentence mandatory in
all such cases.”
In re Ernst’s Petition, supra, 294 F. 2d at 560.
561.
Attempts have been made to fashion compulsory
checklists for the trial judge or jury where it is be
stowed the duty of fixing the punishment in a capital
case.” Respondent considers unrealistic these efforts
to set up preconditions for the exercise of the jury’s
discretion; the tendency of these proposals is to impel
jurors to fit unique factual situations into a mold in
making the metaphysical determination whether the de-
fendant in a capital case is fit to live.
By its nature that decision is one which must turn
upon intangible considerations such as those conse
quences of the defendant’s acts which are the least
capable of precise measurement, the defendant’s moral
or psychological responsibility, and the relative weight
which the individual jurors accord the various objec-
tives of punishment.
No statement could better describe the awesome and
complex task conferred upon the jury in a capital case
26See, e.g., N.Y. Penal Law §125.30; Study Draft of a New
Federal Criminal Code §§ 3602-3605 (National Commission on
Reform of Federal Criminal Laws, 1970); Model Penal Code
§210.6 (Proposed Official Draft, 1962); Comment, Criminal
Procedure—Scope of Appellate Review of Sentences in Capital
Cases, 108 U. Penn. L. Rev. 434, 446-447 (1960).
than the words of Justice Schauer, speaking for the
California Supreme Court in People v. Friend, 47 Cal.
2d 749 (1957) [306 P. 2d 463]:
“[I]n deciding the question whether the accused
should be put to death or sentenced to imprison-
ment for life it is within their discretion alone to
determine, each for himself, how far he will ac-
cord 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 retribution, or of sympathy or clemency,
of age, sex, human passion, ignorance or weak-
ness, or (if appropriate under the evidence, of ill-
ness or intoxication or provocation not suf-
ficient to reduce the degree or class of the crime),
of the presumptions concerning, or possible uncer-
tainties attaching to, life imprisonment, or of the
irrevocableness of an executed sentence of death,
or an apprehension that explanatory facts
may exist which have not been brought to light,
or any other consideration whatever which in the
light of the evidence, the duty they owe to the ac-
cused and to the state, and the law as explained
to them by the judge, appears to them to be im-
portant.” Id., 767-768 [306 P. 2d at 474-475.]| See
also Winston v. United States, 172 U.S. 303, 313.
Would it not strait jacket a jury to require of it
the somewhat impossible task of defining the presence
(or absence) of specified abstract qualities in the case
at hand before permitting it to decide whether the
defendant deserves to die? After all, “Jurors are not
automatons. They are human beings. The jury sys-
tem appropriately assumes that jurors in their factual
— a
determinations bring into play their common sense and
the experiences of life.”
Maxwell v. Bishop, 398 F. 2d 138, 149 (8h
Cir. 1968), rev’d on another ground, 398
US. 262.
See also People v. Daniels, 71 Cal. 2d .......
dnstsialh , 71 A.C. 1165, 1175 (1969) [459 P.
2d 225, 230-231].
The various efforts toward contriving a binding,
formula-type determination on the issue of punishment
in a capital case appear to be a step backward from
the modern penological view that punishment should
fit the perpetrator of the crime and not merely the
crime.
See Williams v. New York, 337 U.S. 241, 247;
People v. Friend, supra, 47 Cal. 2d at 763
(n.7) [306 P. 2d at 471-472].
Petitioner makes the interesting, but logically re
pugnant, argument that California’s procedure, in sub-
mitting the question of penalty to the even-handed
discretion of the jury with flexible standards and nv-
merous safeguards, is constitutionally inferior to the
procedure, such as that of Arkansas’ involved in Max-
well v. Bishop, 398 F. 2d 138 (8th Cir. 1968), revd,
398 U.S. 262, which without these standards or safe-
guards requires the defendant to demonstrate himself
an object worthy of the jury’s mercy and thus pro
vides a presumptive penalty of death. (Petitioner's
Brief, p. 33). Cf. 18 U.S.C.A. §1111. Significantly,
the procedure approved by petitioner was in earlier
times prevalent in California until it was repudiated
_
as anachronistic and ‘unfair in People v. Green, 47
Cal. 2d 209, 224, 231-232 (1956) [302 P. 2d 307,
321-322]. See also Williams v. New York, 337 US.
241, 247.
Undoubtedly petitioner would have objections to a
procedure providing death as the presumed penalty
were such a procedure to govern his case. For peti-
tioner to take the position, in this “divide and conquer”
strategy, that the absence of fixed standards does
not violate the Constitution where the defendant seeks
only “mercy” from the jury, but that it does where
he starts out with an even break, is to exalt form over
substance and ignore the practical reality that jurors
in either situation are still merely translating the con-
temporary values of the community as to punishment
into a verdict responsive to the facts set before them.
Witherspoon v. Illinois, 391 U.S. 510, 519 (a. 15).
One very illuminating reflection of the fairness of
a system of criminal procedure is its overall operation
as indicated by the cumulative cases of the men who
pass through it.
Initially it is significant that only a small percentage
of those California defendants convicted of first degree
murder have their punishment fixed at death—and that
the number of defendants convicted of first degree
murder is in turn only a small portion of the total
number of defendants convicted of some form of homi-
cide. The following figures are from the files of the
Bureau of Criminal Statistics of the California Depart-
ment of Justice:
=
TABLE C
MURDER AND MANSLAUGHTER CONVICTIONS
AND DEATH SENTENCES FOR MURDER IN CALIFORNIA, 193.199
YEAR PMMURDER SPOMURDER (Non gan
Total Death Total Total
Convictions Sentences Convictions Convictions
1953 45 14 (31%) 63 99
1954 40 8 (20%) 61 110
1955 52 8 (15%) 62 80
1956 61 13 (21%) 61 110
1957** 50 7 (14%) 77 110
1958 72 11 (15%) 86 105
1959 59 12 (20%) 76 133
1960 63 14 (22%) 85 177
1961 106 20 (19%) 91 187
1962 68 11 (16%) 107 181
1963 91 23 (25%) 117 240
1964 69 11 (16%) 105 193
1965 88 16 (18%) 107 235
1966 96 13 (14%) 134 216
1967 88 15 (17%) 131 253
1968 119 17 (14%) 146 282
1969 87 8 (9%) 138 358
*Only death sentences for murder are listed in view of the very small numb:
of death sentences imposed for the other capital offenses existing under Califon
law. There are eight capital offenses in California: (1) first degree murder (C
Penal Code § 190), (2) kidnaping for gain with bodily harm (Cal. Penal C
§ 209), (3) assault with a deadly weapon by a life prisoner (Cal. Penal Co
§ 4500), (4) train wrecking (Cal. Penal Code § 219), (5) sabotage of war.
(This footnote is continued on the next page)
— =
ice effort with death or great bodily injury (Cal. Mil. & Vet. Code §§ 1670,
4a), (6) treason (Cal. Penal Code § 37), (7) procurement of the conviction
i execution of any innocent person by perjury or subornation of perjury (Cal.
Code § 128), and (8) explosion or ignition of a destructive device or ex-
eve causing mayhem or great bodily injury (Cal. Penal Code § 12310, effec-
Angust 19, 1970, as an urgency measure, Cal. Stats. 1970, ch. 771, § ....).
death penalty is mandatory for the offenses listed (6) and (7), as well
for the offense listed (3) when the commission thereof results in the
of a non-inmate victim. However, during the last thirty years ‘here
been no executions in California for offenses (4), (5), (6), or (7). Of
aaj Prisoner Statistics—Capital Punishment 1930-1969 (Table 3) (1970)
siminary Draft, not yet published). Of the 73 prisoners under sentence of
ib in California on December 31, 1969, 66 were under sentence for first
wee murder, 2 for kidnaping and 5 for assault by a life prisoner. Jd., Table 10.
prior years (after 1893, when the State assumed the sheriff’s responsibility for
estions), see Hearings Before the Subcommittee on Criminal Laws and Proce-
2 of the Senate Committee on the Judiciary, 90th Cong., 2d Sess. 212-218
m0) (indicating executions for only first degree murder, kidnaping, and
by a life prisoner during that period). Much of the force of capital offense
») was sapped by the decision in People v. Daniels, 71 Cal. 2d ......, ...... om
1165, 1175-1186 (1969) [459 P.2d 225, 229-238], excluding from the
nition of California Penal Code section 209 those kidnapings which are solely
fxilitate, and are merely incidental to, the crime of robbery, where the move-
at of the victim does not substantially increase the risk of harm.
Trials commencing September 11, 1957, and thereafter, have been governed
the bifurcated procedure on the issues of guilt and penalty specified by Cali-
ia Penal Code section 190.1. It is interesting to note that the institution of
ted proceedings in California does not appear to have had any noticeable
to increase the percentage of first-degree murderers sentenced to death,
ry to what has been implied by some commentators. Cf. Note, Executive
lmency in Capital Cases, 39 N.Y.U. L. Rev. 136, 167 (1964). Of course the
is not whether bifurcated proceedings—or the absence of fixed standards—
s in fewer or more verdicts imposing the death penalty; the only constitution-
relevant question is whether the particular state procedure is considered fair
# the Fourteenth Amendment’s mandate of due process of law.
OT ee he ee ee ee
— =
Secondly, all indications are that a defendant's race plays no ,
in the jury’s decision whether to fix the penalty at death:
TABLE D
RACE AND THE IMPOSITION OF THE DEATH PENALTy
IN CALIFORNIA*
Received in Prison, All Offenses, 1968
Rec’vd in Prison, 1st Degree Murder, 1968
Under Sentence of Death,
All Offenses, 12-31-1969
Prisoners Executed, Murder, 1930-1970
Prisoners Executed, All Offenses, 1930-1970 75.7%
*Com from the latest available information contained in
ment Corrections, California Prisoners—1968, 46
US. Bureau of Prisons, National Prisoner Statistics—C
te MM wsodag/ (1970) ( Draft, not oF nc i
fi Bureas of Cin Sciatic aad Be .
rior Court Pt Prosecutions—1969, 27 (Table 21) (197 Seiad Issue, A Stud
of the California Penalty Jury ‘in First-Degree Murder ’ Cases, 21 Stan. L. Re
1297, 1301, 1307, 1366-1368, 1421 (1969).
A recent study also indicates no difference in the
incidence of the death penalty between cases where
the jury included members of racial minority groups
and cases where such persons were not included on
the jury. Special Issue, A Study of the California Penalty
Jury in First-Degree Murder Cases, 21 Stan. L. Rev.
1297, 1415 (1969).
Thirdly, probably every California capital case in
recent years would have met the test of aggravating
circumstances which the proponents of fixed standards
have attempted to formulate. Such fixed standards
either suggest or require the jury to find that the murder
defendant (1) had a previous conviction for murder
or some other offense involving the use or threat of
COPY BOUR
=— =
violence to the victim, (2) have killed more than one
victim, (3) have killed a law enforcement officer, (4)
have killed for pecuniary gain or during the commission,
attempted commission, or flight from the commission or
attempted commission of robbery, rape, deviate sexual
intercourse by force or threat of force, kidnaping, arson,
or burglary, (5) have killed in a particularly heinous,
cruel or depraved manner, (6) be a convict under sen-
tence of imprisonment, (7) have knowingly created a
great risk of death to many persons, or (8) have killed
for the purpose of avoiding or preventing a lawful arrest
or effecting an escape from lawful custody. See citations
in 0.26, infra.
Examination of the capital cases decided by the
California Supreme Court in the preceding five-year
period reveals that the vast majority involves murder
committed during the course of a robbery or rape and
that many involve the murder of police officers or
multiple victims. Significantly, every single one of the
capital cases reviewed by the California Supreme Court
during this period includes one or more of the aggravat-
ing circumstances enumerated in the above-mentioned
fixed standards.
See cases collected and described in Appendix to
Respondent’s Brief, infra.
See also Special Issue, A Study of the California
Penalty Jury in First-Degree Murder Cases,
21 Stan. L. Rev. 1297, 1348, 1398, 1407-
1408 (1969).
An in-depth study of those persons executed in
California during the years 1943-1963 (since then
there has been only one execution, in 1967) reveals
OUND CLOSE IM CENTER
— =
that the foremost characteristic of the capital offense
(almost always murder) was robbery in 32% of the
cases, sexual attack on a female in 19%, marital argy.
ments in 9.8%, and a prison fight in 7.2%. California
Department of Corrections, Executions in California
1943 Through 1963 (Table 30) (1965). Cf. Appendix
to Respondent’s Brief.
These figures also explain the not very surprising
fact that most persons who are sentenced to death
come from lower social-economic levels, although the
occupations of only 50% were unskilled and the
largest proportion were of average intelligence and
had at least some high school education. Id., Tables 5,
6, and 7. Some commentators have viewed the less-
advantaged background of those defendants sentenced
to death as indicative of affirmative jury discrimination
in singling out such persons for the imposition of capital
punishment. See Special Issue, A Study of the Cali-
fornia Penalty Jury in First-Degree Murder Cases,
21 Stan. L. Rev. 1297, 1307, 1367, 1379, 1430-1431
(1969). Other commentators have disputed this con-
clusion, perhaps observing more sagely that wealthy
persons do not customarily engage in the type of
activity, such as holding up liquor stores, which so
often results in the needless death of the victim and
the fixing of the offender’s punishment of death. Cf. Id.,
Preface by H. Kalven, at 1300-1301 (“the authors
risk being corrupted somewhat by their passion for
turning their findings into constitutional arguments
against the death penalty”).
In short, the flexible standards provided by California
law for the conduct of penalty proceedings do not
subject defendants charged with a capital offense to
= =
any unfairness, discrimination, or constitutional depri-
yation. See Royal Commission on Capital Punishment
1949-1953 Report, 208. The actual cases which have
passed through the California system demonstrate this
individually and collectively, as is evident from the
preceding arguments. Furthermore, the arbitrarily
fixed formula-type standards sought by petitioner and
amici curiae N.A.A.C.P. et al. would add nothing
constructive to the system and could on the contrary
result in both the defense and the prosecution receiving
less of a fair trial on the issue whether the defendant
is fit to live. See State v. Johnson, supra, 34 N.J. 212
(1961) [168 A. 2d 1, 10-11].
One of the foremost commentators on California
procedure lists the wide scope of discretion conferred
upon the jury under the bifurcated procedure as one
of the “factors [which] tend to limit the infliction of
the death penalty to extreme cases.”
2 Witkin, California Crimes 972-973 (1963).
See also Williams v. New York, 337 US.
241, 249;
Royal Commission on Capital Punishment 1949-
1953 Report, 208.
It is not difficult to envisage the following situation
arising under the type of penalty determination endorsed
by petitioner: the defendant’s case has one or more
aggravating characteristics and does not fit into the
slot of any of the “mitigating circumstances” formulated
by the proponents of fixed standards. However, the
jury is for some reason influenced by one of those
intangible factors inherent in the decision of any
juror or judge whether to deem one of his fellow
==
men unfit to live; feeling inclined to extend mercy,
the jury nevertheless feels impelled to impose the
death penalty because the formula’s criteria for death
have been met.
Under California law, more than under any system
of inflexible standards, it can truly be said that “under
like circumstances every person convicted of first degree
murder has the same chance for leniency as well as
the same possibility of receiving the maximum sen.
tence.” (Emphasis added.)
In re Anderson, 69 Cal. 2d 613, 628 (1968)
[447 P. 2d 117, 127-128].
Cf. Skinner v. Oklahoma, 316 U.S. 535, 538-
542;
Yick Wo v. Hopkins, 118 U.S. 356, 368, 373-
374.
As has been shown, the vast majority, if not all,
of the capital cases from California in the last several
years would pass muster under the formula standards.
See Appendix to Respondent’s Brief infra. At the
same time the proposed standards do not escape the
vice of vagueness which they are intended to remedy;
on the contrary, they inject into the matter of penalty
determination elements less susceptible of definition
than any propounded in the standard California jury
instructions. Thus the standards in both Model Penal
Code section 210.6 (Proposed Official Draft, 1962)
and Study Draft of a New Federal Criminal Code
section 3605 (National Commission on Reform of
Federal Criminal Laws, 1970) resort to making
an aggravating circumstance of the fact that the
murder was “especially heinous, atrocious or cruel,
uittii.
manifesting exceptional depravity” and include as
mitigation “circumstances which the defendant be-
lieved to provide a moral justification or extenuation
for his conduct.”
Appellate review of a capital case must indeed be
complicated rather than facilitated by the imposition
of such unwieldy shackles on the jury. One can well
imagine the consternation of the appellate court called
upon to evaluate an appellant’s contention that, con-
trary to the apparent findings of the jury, the offense
was not “especially heinous” and the evidence of “cir-
cumstances which the defendant believed to provide
extenuation” not insufficient. It is at best doubtful
that, in the context of the requirements of the due
process clause, jury determinations under the proposed
inflexible standards would approximate “findings ade-
quate to make meaningful any appeal.” The same is
true with respect to the approach suggested by peti-
tioner. (Petitioner’s Brief, p. 27 (n. 19)).
Specht v. Patterson, 386 U.S. 605, 610.
See also Garner v. Louisiana, 368 U.S. 157, 173.
Respondent does not concur in petitioner’s statement
that the practicability of devising workable standards
for the determination of penalty is substantively dif-
ferent from the admitted impracticability of devising
workable standards for the placement of monetary
value on pain and suffering in a personal injury case.
(Petition, pp. 28-29.) Cf. Beagle v. Vasold, 65 Cal.
2d 166, 172, 179-180 (1966) [417 P.2d 673, 675,
680-681]. Indeed, petitioner’s effort to venture a
= =
“general suggestion” as to “acceptable standards”
echoes the frustration of his confreres in grappling
with the definition of such imponderables.
Respondent submits that fixed standards are totally
inappropriate to a penalty jury’s determination under
contemporary community standards whether the defend.
ant is fit to live, just as would be the imposition of such
computer-type decision-making on the processes by
which trial judges are called upon to decide probation
and sentencing matters, see Williams v. New York, 337
U.S. 241, 244-249, 251, and other governmental entities
are delegated the responsibility of deciding whether to
prosecute, see Oyler v. Boles, 368 U.S. 448, 454-456,
or whether to grant parole and clemency applications.
See Williams v. New York, supra at 248; Note, Execu-
tive Clemency in Capital Cases, 39 N.Y.U. L. Rev. 136,
159-177 (1964.)
Carried to its logical extreme, the approach taken by
petitioner and amici curiae N.A.A.C.P. et al., is that
the exercise of all discretion in capital cases must be
stamped out, including presumably the prosecuting at-
torney’s discretion under California law whether or not
to seek the death penalty. See People v. Siplinger, 252
Cal. App. 2d 817, 819 (1967) [60 Cal. Rptr. 914,
916]. The end result of this approach would of course
be two equally unacceptable alternatives: judicial aboli-
tion of the States’ right to prescribe the death penalty
as an alternate punishment for murder, or a manda-
tory penalty of death for that offense.
2TPetitioner’s Brief, p. 27 and n.19 (“Consideration of the
choice of penalty could be centered around these objectives
[of penalty], with a view of choosing that one which, havi
regard to the circumstances of the case and the character
temperament of the defendant, would most nearly further rather
than frustrate them.”)
——
uation
II
All Indications Afforded by the Record Impel the Con-
clusion That the Jury Acted on Constitutionally
Permissible Grounds, Rather Than Arbitrarily, in
Fixing Petitioner's Punishment at Death and His
Codefendant’s at Life Imprisonment
Respondent has demonstrated in the preceding argu-
ment that the procedure for the conduct of capital
cases, including particularly the standards guiding the
jury in its deliberations on the issue of penalty, is ex-
ceedingly fair to both sides in its general operation as
well as in its application to specific cases. But even
were this not the case, the various indications afforded
by the record in the instant case establish that petitioner
received a fair trial and preclude his attacking the consti-
tutionality of the California procedure on grounds that
have no application to himself or his situation.
United States v. Raines, 362 U.S. 17, 21;
In re Cregler, 56 Cal. 2d 308, 313 (1961) [363
P.2d 305, 307-308].
There are several indicia of a constitutionally per-
missible basis for this jury’s determination on the issue
of penalty and no indicia of an impermissible basis
for the penalty verdicts: (1) the voir dire examination
of the twelve jurors, (2) what the jury was told in the
opening statement, (3) the evidence received at the
guilt and penalty phases of the trial, particularly that
evidence which was read back to the jury at its specific
request, (4) the closing arguments made to the jury, and
(5) the jury instructions, one of which was given in
response to a question troubling the jury.
= SS
A. The Voir Dire Examination of the Twelve Jurors Affirms.
tively Reflects Their Willingness to Decide the Issue of
Penalty on the Evidence Received in Court and the Law
Given Them by the Trial Judge, and to Disregard Racisi
Considerations, Petty Biases, and Personal Preconceptions
The case at bar provides a graphic illustration of
the vital part played by the wide-ranging voir dire
examination of prospective jurors allowed in California
in educating the jurors as to their proper function in a
capital case:
1. Juror Kischell: In the voir dire examination of
Mrs. Kischell she was asked, “assuming we reach the
penalty stage of the murder prosecution, and that the
law, in a sense, gives you very few guidelines. That in
a sense it says you decide it based upon the facts that
have been presented to you and whatever other compe-
tent evidence is before you on what should happen to
these persons. Do you feel you could do this?” She re-
plied, “I think so,” and answered affirmatively when
asked, “You must decide upon the facts and the law
and nothing else?” She also responded affirmatively to
the request of one of defense counsel that she let the
court or counsel know if she thought of any reason why
she could not be a fair and impartial juror in the
case. (App. p. 39.)
Defense counsel also made it clear to Mrs. Kischell
and the other jurors that they were to exclude from
their consideration the fact that both defendants were
Negroes, and to exclude as well any prejudices which
the jurors might have:
—
“Q And, again, I will ask the question, the
fact that a person is of a different racial orisin,
that this is the United States of America and it
can’t make any difference; you understand that;
don’t you?
A That's right.
Q You know that even though there have
been problems with certain groups that have come
about, this can’t color you thinking. You must
decide on these persons as human beings and
individuals; you understand that, don’t you?
A Yes.
Q And none of the prejudices that all of us
have to some degree, or none of these sympathies
that all of us have to some degree can enter into
your verdicts; you understand that?
A Yes.” (App. p. 39.)
2. Juror Perez: Asked whether his answers to the
previous questions would have differed, he answered
in the negative. He stated that he understood when
told by defense counsel that “the verdict that we want
must be based on the evidence and the law and nothing
else,” and that the same thing applied, “assuming you
get to the penalty phase.” (App. pp. 42-43.)
3. Juror Thomas: This juror too indicated his
agreement with the answers given by the preceding ju-
rors (App. pp. 43, 44) and his willingness “to take each
of the defendants as an individual human being and
judge him alone . . . if the proper time [the penalty
phase] comes.” (App. p. 43.)
online
4. Juror Janssen: Mrs. Janssen indicated that her
answers to the questions propounded to the other
jurors would be the same. (App. p. 51.) She agreed
to “take the evidence from one source and one source
only and that is here in the courtroom as it is received
during the course of the trial” and to follow the law
as stated by the trial court. (App. p. 47.)
5. Juror Wain: He too would have answered the
preceding questions in the same manner (App. pp. 56-
57) and agreed to “decide this case based upon the evi-
dence as it is received here in court during the course of
trial and based upon the law as it will be stated.” (App.
p. 53).
Mr. Wain understood that “although a person may
be of a different race . . ., he is entitled to the same
protection of the law as all of us.” He had no “qualms
about enforcing the law properly, fairly, and honestly,
no matter what the person is as far as his background”
(App. p. 56) and recognized “that it would be improper
. . . to advocate certain enforcements or non-enforce-
ments of the penalty based upon sympathies or preju-
dices that you may have.” (App. p. 54.)
6. Juror Welker: Mrs. Welker stated her willing-
ness to “take the evidence from the witness stand and
from that source alone” and to follow the law as stated
by the trial court. (App. p. 59.) She refused to allow
prejudices to enter into her judgment (App. p. 61), and
nothing led her to believe that she would be less than
fair and impartial in trying the case. (App. p. 62.)
7. Juror Fogel: She would not amplify any of the
answers given by the previously-questioned jurors (App.
p. 65), and the questions did not suggest any reason
why she could not sit on the case. (App. pp. 63-64.)
—
lions
She agreed to take the evidence from the witness stand
alone and to follow the law as instructed by the court
(App. p- 65), indicating her awareness that the decision
as to punishment must be made on the basis of those
factors alone and not on “peronal feelings or any outside
factors.” (App. Ppp. 65-66.)
Mrs. Fogel made it clear that she would not be influ-
enced by any tactic followed by defense counsel (App.
p. 67) or by racial or other prejudice:
“Q The fact that the persons involved are of a
different racial origin, would this make any dif-
ference to you?
A No.
Q The fact that there has been a considerable
amount of problems recently because of the racial
factor in the United States, would this cause you
to feel biased or prejudiced in any way that would
apply against my defendant or Mr. McGautha?
A_ No, sir.
Q You understand, I’m sure, if you analyze
your own feelings, that in some way all of us have
little petty biases and prejudices that we have built
up over the years. These can have no bearing in
this case; you understand that, do you not?
A Yes, I do.
Q ... [W]hen we look at our every day life
sometimes we see a person, we don’t like them, we
don’t like his looks, maybe, and this is the type of
thing I had in mind; you understand that?
A Yes.” (App. pp. 66-67.)
aa,
8. Juror Grant: Her answers to the preceding ques.
tions would have been the same. (App. p. 70.) She
agreed to “take the evidence from the witness stand
and as it is received here in court during the course of
the trial and from that source alone.” (App. p. 69.)
9. Juror Hamblin: None of the answers of the other
jurors would be amplified by Mr. Hamblin. (App. p.
72.) He indicated his willingness to take the evidence
from the witnesses and the physical exhibits alone (App.
p. 71) and to arrive at a verdict based on those mat-
ters alone. (App. pp. 72-73.)
10. Juror Braun: She agreed to consider only the
evidence received in the course of the trial (App. p.
74) and to render both sides a completely fair and im-
partial trial “based on the evidence and the law alone.”
(App. p. 75.)
11. Juror Barden: None of the questions directed to
the other jurors suggested to her a different response
on her part. (App. p. 77.) Mrs. Barden was willing to
make a determination on the issue of punishment based
on the evidence and the law as given by the trial court.
(App. p. 78.)
12. Juror Haskell: He would not amplify the answers
given by the preceding jurors. Mr. Haskell knew of no
reason why he could not “render a completely fair and
impartial verdict based upon the evidence and the law.”
(App. p. 79.)
B. The Opening Statement at the Penalty Phase of the Trial
Outlined the Proper Criteria for the Jury to Consider in
Evaluating the Forthcoming Evidence
Codefendant Wilkinson’s counsel made an opening
statement to the jury at the commencement of the pen-
alty phase of the proceedings; the prosecuting attorney
and petitioner’s counsel chose not to. (App. pp. 81, 83.)
This opening statement apprised the jury of their forth-
coming taskk—to make their choice of penalty in light
of the evidence concerning the offense as well as on
the basis of the life background of the two defendants:
“In this proceeding each person is an individual
human being. He is to be judged as an individual
and what Mr. Wilkinson says, he is doing it be-
cause I am going to put him on the stand and I feel
it is important for you to know something about
his background when you go in that jury room and
decide whether or not he should live or die, and
in doing this I have to bring out certain things that
may not be of help, and it could be, in a sense,
a hindrance to Mr. McGautha, but I am not doing
it to hurt Mr. McGautha. I am not doing it to
throw the blame over on any other person.
“I am merely doing it so that you will have a
complete and, what I hope is, an over-all picture
of what took place involving the robbery that
caused the death of Mr. Smetana.” (App. p. 82.)
_ ©
C. The Evidence Before the Jury Indicates That It Was Dis.
criminating and Not Discriminatory in Distinguishing Be.
tween the Two Defendants in the Fatal Robbery: Petitioner
Was a Likely Candidate for the Death Penalty Under Any
Conceivable Standards, Having Been the “Trigger Man.
Fifteen Years Senior to His Codefendant, and Previowly
Convicted of Four
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