Reply Brief — McGautha v. California

| FILE COPY | 6 mm

- TEER) & VER, CLERK

Supreme Court of the United States

OCTOBER TERM, 1970

DENNIS COUNCLE McGAUTHA,

Petitioner,

v.

CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

REPLY BRIEF FOR PETITIONER

HERMAN F. SELVIN

450 North Roxbury Drive

Beverly Hills, California 90210

Attorney for Petitioner

(i)

TABLE OF CONTENTS

PRELIMINARY STATEMENT .......------eeeeee00 1

ARGUMENT:

1. Since California’s Penalty Imposition Procedure Is

Standardless, The State’s Argument That A Penalty

Trial In That State Is Procedurally Safeguarded By

Rules Of Evidence, The Right To Appellate Review,

And The Like, Does Not Meet At All The Proposi-

tion That Substantive Standards By Which To Deter-

mine Whether A Defendant Is To Be Deprived Of

His Life Are Constitutionally Required. .........--- 3

1. The Argument Ignores That In The Instant Case

The Jury Were Charged That The Law Provided

No Standards... ..cccccccvcccccccsvscsvces 3

2. The Question Whether California’s Standardless

Procedure Is Preferable To One Based On Ascer-

tainable Standards Is Legislative, Not Judicial. In

Any Event, It Is No Negation Of A Constitutional

Requirement Of Standards........-+-+-++++++> 9

. It Is No Substitute For The Absence Of Standards

That In Other Respects California’s Procedure May

Be Regular. ......---eeeecceescccccrceres 9

4. The Record Does Not Reasonably Permit Of The

Inference That The Death-Penalty Verdict Against

McGautha Was Based On Constitutionally Permiss-

ible Grounds. Even If It Did, Unconstitutionality

Would Not Be Avoided, For It Is The Statute, Not

Judicial Discretion, That Must Save The Defendant’s

Rights And, Constitutionality Must Be Judged By

The Natural Operation And Effect Of The Statute. .. 12

Il. The Argument Of The United States, Like Cali-

fornia’s, Does Not Answer But Avoids The Question

Whether Due Process Of Law Requires That The

Death-Penalty Sentencing Procedure Must Be

Guided By Ascertainable Standards Fixed By Law. .... 18

w

1. The Constitutional Requirement Of Standards

Is Not Negated By The Age Of The Practice

Of Standardless Sentencing. .................. 19

. Non-Capital Sentencing Procedures And Discre-

tionary Sentencing By A Judge Are Not Neces-

sarily Implicated By Petitioner’s Contention Of

Unconstitutionality, As They Are Classifiably

Different From Capital Sentencing.

. A Jury’s Participation In The Judicial Process,

Even As The Surrogate Of The Community, Is

Subject To The Limitations Imposed By The

CORTINA. ooo oie 6b oe Gea ec cd eseeensan 23

CONCLUSION

TABLE OF AUTHORITIES

Cases:

American Communication Association v. Douds, 339 U.S.

Anderson, In re, 69 Cal.2d 613, 73 Cal. Rptr. 21, 447

P.2d 117 10, 20, 22, 23

Anderson v. Martin, 375 U.S. 399

Andres v. United States, 333 U.S. 740

Bailey v. Alabama, 219 U.S. 219

Chapman v. California, 386 U.S. 18

Coe v. Armour Fertilizer Works, 237 U.S. 413

Davis v. Schnell, 81 F.Supp. 872

DiSanto v. Pennsylvania, 273 U.S. 34

Erie R. Co. v. Tompkins, 304 U.S. 64

Florida ex rel. Thomas v. Culver, 253 F.2d 507

Gault, In re, 387 US. 1

Giaccio v. Pennsylvania, 382 U.S. 399 2, 18, 21

Grand Trunk R. Co. v. Michigan R. Com., 231 U.S. 457 .. 12,14

(iii)

Harris, In re, 69 Cal.2d 486, 72 Cal. Rptr. 340, 446

Larson, In re, 44 Cal.2d 642, 283 P.2d 1043

Lee, In re, 177 Cal. 690, 171 P. 958

Leland v. Oregon, 343 U.S. 790

Louisville & N.R.R. Co. v. Central Stockyards, 212 U.S.

Lucas v. Forty-Fourth General Assembly, 377 U.S. 713

McCants v. State, 282 Ala. 397, 111 So.2d 877

McLain, In re, 55 Cal.2d 78, 9 Cal. Rptr. 824, 357 P.2d

Maxwell v. Bishop, 398 F.2d 138

Maxwell v. Bishop, 398 U.S., 262

Money v. Leach, 3 Burr. 1742, 19 How. St. Te. 1002

Mergenthaler Linotype Co. v. Davis, 251 U.S. 256

Near v. Minnesota, 283 U.S. 697

O'Malley, In re, 101 Cal. App. 2d 80, 224 P.2d 488

People v. Dorado, 62 Cal.2d 338, 42 Cal. Rptr. 169, 398

P.2d 361

People v. Duncan, 51 Cal.2d 523, 334 P.2d 858

People v. Gonzales, 66 Cal.2d 482, 58 Cal. Rptr. 361,

426 P.2d 929

People v. Nye, 71 Cal.2d 356, 78 Cal. Rptr. 467, 455

P.2d 395

People v. Seiterle, __ Cal.2d ___, 54 Cal. Rptr. 745, 420

P.2d 217

People v. Shipp, 59 Cal.2d 845, 31 Cal. Rptr. 457, 382

P.2d 577

People v. Sidener, 58 Cal.2d 645, 25 Cal. Rptr. 697, 375

People v. Tidwell, 3 Cal.3d 62, 89 Cal. Rptr. 44, 473

P.2d 762

People v. Varnum, 61 Cal.2d 425, 38 Cal. Rptr. 881, 392

Petition of Emst, 294 F.2d 556

Reitman v. Mulkey, 387 U.S. 369

Rohr Aircraft Corp. v. County of San Diego, 362 U.S.

Segura v. Patterson, 402 F.2d 249

Smith, In re, 33 Cal.2d 797, 205 P.2d 662

Townsend v. Burke, 334 U.S. 736

United States ex rel. Nelson, 275 F. Supp. 261

Walz v. Tax Commissioner, 397 U.S. 664

Williams v. New York, 337 U.S. 241

Williams v. Oklahoma City, 395 U.S. 458

Wells, In re, 35 Cal.2d 889, 221 P.2d 947

Witherspoon v. Illinois, 391 U.S. 510

Yick Wo v. Hopkins, 118 U.S. 356

CONSTITUTION AND STATUTES

California Penal Code, § 187

California Penal Code, § 189

California Penal Code, § 190

California Penal Code, § 190.1.......... 2.202 e eee eees

United States Code, title 28, § 1257

United States Code, title 28, § 1257(3)

United States Code, title 28, § 2103

TEXTBOOKS AND LAW REVIEWS

Royal Commission on Capital Punishment 1949-1953

Report, pp. 167-168

Royal Commission on Capital Punishment 1949-1953

Report, pp. 174-175

Royal Commission on Capital Punishment 1949-1953

Report, pp. 174-176

Royal Commission on Capital Punishment 1949-1953

Royal Commission on Capital Punishment 1949-1953

Report, pp. 176-177

Royal Commission on Capital Punishment 1949-1953

Supreme Court Practice, R. Stern and E. Gressman

(4th ed.), p. 89, § 3.5

MISCELLANEOUS

Holmes, O.W. Jr., Collected Legal Papers, p. 187

Model Penal Code, § 210.6

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

DENNIS COUNCLE McGAUTHA,

Petitioner,

Vv.

CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME

COURT OF CALIFORNIA

REPLY BRIEF FOR PETITIONER

PRELIMINARY STATEMENT

The determinative question in this case is whether the

concept of due process of law, which is embodied in the

Fourteenth Amendment, imports the need for standards by

which a jury is to be guided in performing its function of

deciding whether a person convicted of murder in the first

degree should be put to death. Neither the State of Cali-

ALGAE DO

fornia nor the Solicitor General comes to direct grips with

that question. Neither of them denies, each of them seeks

to circumvent, the proposition that the Constitution forbids

the deprivation of one’s life “except in accordance with the

valid laws of the land...” [see, Giaccio v. Pennsylvania,

382 U.S. 399, 403]; or with its corollary, that the phrase

“due process of law” in the Fourteenth Amendment con-

notes ascertainable standards fixed by law, pursuant to

which the issue of deprivation must be determined. [See,

Petr. Br., 20-25.' In that connection each of them miscon-

strues the argument we have made as being only that there

must be such standards as will adequately notify the defend-

ant of the conduct he must avoid to remain law-abiding

Neither, therefore, takes note of or attempts to answer the

argument we actually made—i.e., that it is not merely the

public that must be apprised by standards that do not leave

it uncertain what is prohibited, but, as well, judges and

jurors, who cannot be “left free to decide without any

legally fixed standards” what is prohibited conduct and

what is the sanction for it. [Petr. Br., 23-25.]

Neither California nor the United States contends that

“sentencing procedure is immune from scrutiny under the

Due Process Clause,” for unquestionably it is not. [Williams

v. New York, 337 U.S. 241, 252 (fn. 18); Witherspoon v.

Illinois, 391 U.S. 510, 522 (fn. 20); Townsend v. Burke,

334 U.S. 736, 740.] Due process of law imports standards

for judges and jurors, as well as for the public. They are

required of a statute under which one may be deprived of

‘In addition to the abbreviations specified in Rule 40, 1, (e), the

following are used in this brief:

“Cal. Br.” = —__ Respondent’s Brief.

“U.S. Br.” = Brief for the United States as

Amicus Curiae.

“A.C. Br.” = Brief Amici Curiae v. the N.A.A.CP.

Legal Defense Fund, Inc., et al.

Brief for Petitioner.

“Petr. Br.”

3

his life, liberty or property. No explanation has been vouch-

safed the Court why the most awesome and uncorrectable

part of the sentencing procedure should be an exception

to this principle, a principle which is really the law and the

prophets of the Due Process Clause.

We propose, therefore, to reply to the general drift of

the opposition arguments that have been advanced.

ARGUMENT

I

SINCE CALIFORNIA’S PENALTY IMPOSITION PROCEDURE IS

STANDARDLESS, THE STATE'S ARGUMENT THAT A PENALTY

TRIAL IN THAT STATE IS PROCEDURALLY SAFEGUARDED BY

RULES OF EVIDENCE, THE RIGHT TO APPELLATE REVIEW,

AND THE LIKE, DOES NOT MEET AT ALL THE PROPOSITION

THAT SUBSTANTIVE STANDARDS BY WHICH TO DETERMINE

WHETHER A DEFENDANT IS TO BE DEPRIVED OF HIS LIFE ARE

CONSTITUTIONALLY REQUIRED.

1.The Argument Ignores That In The Instant

Case The Jury Were Charged That The

Law Provided No Standards

The principal difficulty with California’s argument about

standards is that it ignores what was actually done in this

case in respect of giving the jury any standards to guide

their determination whether to deprive petitioner McGautha,

of his life. What was actually done was to give the jury

just this charge:

“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 dis-

cretion of the jury . . . Notwithstanding facts, if

any, proved in mitigation or aggravation, in deter-

mining which punishment shall be inflicted, you are

entirely free to act according to your own judgment,

conscience, and absolute discretion. That verdict

must express the individual opinion of each juror.

4

“Now, beyond describing the two alternative pen-

alties, 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 determin-

ing which of the two penalties shall be fixed to the

judgment, conscience and absolute discretion of the

jury ...” [A. 222-223.]

In the fact of that charge, it is idle to argue, as California

persistently does, about “standards which are provided

under California law ...” [See, e.g., Cal. Br., 1, 13, 14, 15,

41, 56, 81. But, see, Point I, 4, First, infra.| If there are

any such standards, they were sedulously kept from the jury

that ordered that McGautha be put to death. The fact is—

and California does not attempt to deny it, except, perhaps,

by dubious innuendo—the law of California, as the jury

were told, “provides no standard.”? [See, Petr. Br., 10-12.]

To be sure McGautha’s jury was told, as California notes,

that they “should consider all of the evidence . . .” and

that they “may also consider all of the evidence . . . of the

facts in aggravation or mitigation of the penalty which have

been received here in court...” [A. 222.] But that seem-

ing invitation to consider either aggravation or mitigation

was immediately denigrated, for they were next told that

“it is not essential to your decision that you find mitigat-

ing circumstances . . . or evidence in aggravation . . .”; and

that, “[n] otwithstanding facts, if any, proved in mitig-

ation or aggravation, in determining which punishment shall

be inflicted, you are entirely free to act according to your

own judgment, conscience and absolute discretion . . .”

{[A. 222-223.]

2The charge from which we have just quoted to that effect is not

only the usual one given in California; it is the only one that need

be given about determination of penalty. [See, Petr. Br., 6 (fn. 4),

10, 12 (fn. 9).]

5

The relevant state statute [Cal. Penal Code, secs. 190,

190.1], in terms, does not establish any standards or require

that any be given the jury. The decisional gloss upon the

statute makes it very plain that there are no standards and

that none need be given the jury.* [Cases cited, Petr. Br.,

10.] The determinative question, therefore, is whether the

Due Process Clause requires that there be standards; for, if

it does, the constitutional error in the disposition made of

McGautha’s life is starkly apparent. We have argued that

the very concept of that “law,” pursuant to which, and

only to which, a person may be deprived of his life imports

the need for ascertainable standards established in advance

of the proceeding in which the issue of deprivation is to be

determined. [Petr. Br., 20-29.] California does not even

attempt to meet that argument, but slides off it by unin-

formative references to “standards which were given.”

The point we have tried to make in this regard was better

expressed nearly 75 years ago by Mr. Justice Matthews

speaking for this Court in Yick Wo v. Hopkins, 118 U.S.

356, 369, where was involved the constitutionality of an

ordinance that conferred the discretionary, but standardless,

Whether that gloss makes the statute as such, or only its applic-

ation to a specific case, unconstitutional is really immaterial. That

would be a difference of consequence if review here had been sought

by direct appeal. [28 U.S.C.A., § 1257. See, Mergenthaler Linotype

Co. v. Davis, 251 U.S. 256, 259.] Even then the difference would

be of no great moment, for the Court would treat the appeal papers

as a petition for certiorari. [28 U.S.C.A., § 2103.] Certiorari juris-

diction covers the entire field of federal questions that can arise in a

law suit in the state courts. [R. Stern and E. Gressman, Supreme

Court Practice (4th ed.), p. 89, 8 3.5.] This case is here on certio-

rari, and so the question of the constitutionality of California’s

death-penalty imposition procedure is properly here in either of the

aspects in which it may have arisen—on the face of the statute or as

the result of the application of the statute to petitioner’s case. [28

US.C.A., § 1257(3): Rohr Aircraft Corp. v. County of San Diego,

362 U.S. 628, 629.]

6

power to grant or deny a license to engage in an otherwise

lawful business:

“When we consider the nature and theory of our

institutions of government, the principles upon which

they are supposed to rest, and review the history of

their development, we are constrained to conclude

that they do not mean to leave room for the play

and action of purely personal and arbitrary power

. .. the fundamental rights to life, liberty and the

pursuit of happiness, considered as individual posses

sions, are secured by those maxims of constitutional

law . . . so that, in the famous language of the

Massachusetts Bill of Rights, the government of the

commonwealth ‘may be a government of laws and

not of men.’.. .”

What that means is that the power to deprive a person of

his “life, liberty or property” must not be exercised, by the

governmental agent that holds the power, arbitrarily or in

pursuance of personal or ad hoc notions, but in accordance

with the law; and that, in turn, means in accordance with

standards fixed by the law. It is not enough merely to give

the holder of the power the precatory charge not to exer-

cise it arbitrarily; the law must fix limits beyond which

action becomes arbitrary to that arbitrariness may be

avoided. [See, Petr. Br., 20-22.]

In this connection, California insists that the issue that

is given to the jury in a death-penalty case is whether the

defendant is “fit to live.” [Cal. Br., 13, 14, 31, 61.] That

phrase, in the context from which California lifted it [see

Witherspoon vy. Illinois, 391 U.S. 510, 522 (fn. 20)] no

doubt is an apt general characterization of the kind of job

a capital-sentencing jury has to do; but, it is not a standard.‘

And, even if it is, it was not given to McGautha’s jury.

“One man’s idea of fitness may be another’s idea of unfitness, just,

as it is generally recognized, one man’s orthodoxy may be another’s

heresy. [Cf., American Communications Association v. Douds, 339

U.S. 382, 438, Jackson, J., conc., and diss.] As a criterion of decision

whether to sentence a man to death, the phrase “fit to live,” even if

7

“What more can be done,” California asks, “than giving

the jury instructions which tell them to base their verdict

on specified permissible criteria and not to exercise their

discretion arbitrarily? ...” [Cal. Br., 65.) We need not

argue that any more needs to be done, for not even that

much was done in this case. What we do argue, and what

California pointedly ignores, is that its statute does not

require that the jury be told, nor were they told in the

case at bar, “to base their verdict on specified permissible

[or any] criteria...” (Italics ours.) Specific criteria can

be, indeed, they have been, fashioned.* [Petr. Br., 27-29.]

it had been given McGautha’s jury, is much too amorphous to have

told them any more than they were told; and what they were told

was nothing more informative than that they were to decide whether

he should be put to death, according to their own “judgment, con-

science and absolute discretion . . .,” for which decision the law pro-

vided them with “no standard.” [A. 223.]

‘California’s heavy emphasis on the asserted conclusion of the

British Royal Commission that “fixed standards” are unfeasible [Cul.

Br., 16, 77, 98-100] , is quite misplaced. The quotations from the

Report found in California’s brief [pp. 99-100] do not come from

any of the Committee’s discussion relating to jury sentencing, but

from its consideration of the question whether there should be

degrees of murder. The suggestion under discussion was that one

degree “would be so defined as to comprise the gravest murders and

would be punishable by death; the second degree would comprise all

other cases of murder and would be punishable only by imprison-

ment...” [Report, pp. 167-168.]

More, specifically, the context from which California took its quo-

tations was the Commission’s discussion of whether “premeditation”

or “intent to kill” was an objective characteristic adequate to make

the proposed differentiation. (Report, pp. 174-176.] The Commission

concluded it would not be, largely because many of the worst mur-

ders are not premeditated in the sense of “planned and cold-blooded”

(Report, pp. 174-175], while “intent to kill” would require the death

penalty in cases where there were mitigating circumstances making a

lesser penalty appropriate. [Report, p. 176.]

Nor need we argue that the standards must be so Precise

as invariably to lead to an infallibly correct decision. (Cf,

Cal. Br., 63-64.] All that is required, and all that can be

reasonably expected, is that the standards be such as to

guide the jury in a way that is most likely to lead them

to a correct result. What such standards should be is a

legislative question. Because it is just that, it leaves much

room to the States to make their own determinations of

policy and of the form of standards that will effectuate

that policy.

The Commission, it is clear [see, e.g., Report, 176-177] was not

concerning itself, in that part of its report upon which California

draws, with any effort—such as the one successfully made by the

American Law Institute and the National Commission on Reform of

Federal Criminal Laws—to classify or categorize generally the kinds

of facts and circumstances usually found in connection with or offered

in aggravation or mitigation of homicides. The Royal Commission

was, rather, concerning itself with the suggestion that “the definition

of murder in the first degree” be based “on a list of categories of

murder selected as being those for which the capital sentence is con-

sidered to be the most appropriate .. .” ([Report, p. 176.] The

Commission evidently concluded that it was unfeasible so to categor-

ize murders. California, in company with a considerable number of

other States [see, e.g., Report, pp. 167-168] , has encountered no such

difficulty. [See, Cal. Penal Code, secs. 187, 189, quoted in full,

Petr. Br., 3 (fn. 1).]

It is quite a different matter from the one the English body thought

unfeasible, to formulate a number of general categories into one or the

other of which there may be fitted the various facts and circumstances

usually attendant upon a homicide or which are commonly advanced

as tending to aggravate or mitigate the crime. This does not involve

anticipation of all of the varying circumstances that may arise. The

general kinds of circumstances are known from the past experience of

our courts and penologists. The pertinent general categories are deduc-

ible from that experience.

ee er ee en ae on i

9

2. The Question Whether California’s Standardless

Procedure Is Preferable To One Based On Ascertainable

Standards Is Legislative, Not Judicial. In Any Event,

It Is No Negation Of A Constitutional Requirement Of

Standards.

California argues at length that “flexible guidelines . . . are

constitutionally preferable . . .” to fixed standards. [Cal.

Br,, 56 et seq.) Since that argument is advanced in the con-

text of California’s standardless procedure, it is apparent

that what is meant by “flexible guidelines” is that State’s

practice of leaving the matter to the “judgment, conscience,

and absolute discretion” of the jury, with “the law itself”

providing “no standard for the guidance of the jury .. .”

[A. 222-223.] What the State is arguing, therefore, is that

the standardless procedure is better than one based on stan-

dards.

Of course, that is not the question here. The question

is whether the Due Process Clause requires definition and

application of some standards—standards that are adequate

to guide the jury to the result that the law seeks to reach

on the facts before the jury. What those standards should

be is a legislative, not a judicial question. California’s argu-

ment about preferability, therefore, is beside the point.

3. It Is No Substitute For The Absence Of Standards

That In Other Respects California’s Procedure May Be

Regular.

California engages in a painstaking review of its death

penalty imposition procedure [Cal. Br., 20 et seq.) which

does no more than duplicate a similar but shorter review

made by us. [Petr. Br., 10-17] The conclusion that Cali-

fornia draws from its review is that the procedure has not

been constructed to make the jury’s exercise of discretion

anything less than an even-handed one; all evidence relevant

to the issue of penalty is admitted; the right to review of

error is preserved; and the jury is told not to be arbitrary;

in short, that the process of imposing the death penalty is

10

surrounded by various procedural safeguards. Even if all of

this is so, it too, is beside the point. Nothing in the pro-

cedure provides any standards fixed by the law, or requires

that the jury be given any standards to guide their determin.

ation of the proper penalty. It is not an error for which a

verdict of death may be set aside or reduced, so far as Cali-

fornia’s procedure is concerned, that there are no such star

dards; for, as is said in California’s brief, and as is undoubt-

edly the law of California [cases cited, Petr. Br, 16], “‘in

the absence of substantial error requiring reversal of the

[penalty] verdict . . . [the Supreme Court] will not substi-

tute its judgment as to choice of penalty for that of the

trier of fact.’...”7 [Cal. Br., 46.]

Evidence, argument and jury instructions that are relevant to the

comparative desirability of one rather than the other of the penalties

are excluded. [See, e.g., People v. Nye, 71 Cal. 2d 356, 368-369, 78

Cal. Rptr. 467, 473-474, 455 P.2d 395, 401-402; and the cases cited,

Petr. Br., 13.]

7It is misleading, in this connection, to point, as California does

(Cal. Br., 49, and Appendix, 3-4, 6-9], to the number of cases in

which, on appeal or post-conviction attack upon a judgment of con-

viction of a capital offense, the judgment was set aside. These were

not cases in which that result was reached because the penalty verdict

did not conform to law or was too severe, or was otherwise unwar-

ranted by law. So far as the reversals related to the penalty rather

than the guilt phase of the trial, these are cases in which, virtually

without exception, the ground for the Court’s action was either (1)

that the trial court had admitted evidence, given an instruction, or

permitted argument, about the possibility that one sentenced to life

would be paroled or otherwise freed in a relatively short time [see,

e.g., People v. Morse, 60 Cal. 2d 631, 36 Cal. Rptr. 201, 388 P.2d

33; People v. Varnum, 61 Cal. 2d 425, 428-429, 38 Cal. Rptr. 881,

392 P.2d 961]; or, (2) the trial court had failed to select the jury

in accordance with Witherspoon requirements; because, as the State

Supreme Court somewhat grudgingly puts it, “[u] nder the compul-

sion of Witherspoon . . .” a new trial must be had to a jury, selected

as this Court has held in Witherspoon it should be selected. [See,

e.g., In re Anderson, 69 Cal. 2d 613, 617, 619, 634, 73 Cal. Rptr.

21, 24-25, 35, 447 P.2d 117, 120-121, 131.]

11

It is of little, if any, consequence, to a defendant sen-

tenced to death at a standardless trial, that the evidence

admitted on the issue of penalty was relevant, if the jury

were not told how to measure or weigh the effect given by

law to that evidence.® It is similarly of little consequence

——EE .

Guilt convictions were reversed on a variety of grounds, having no

relation of any kind to the nature or choice of penalty. These grounds,

for example, included among others, permitting evidence of statements

obtained from the defendant without informing him of his rights to

silence and the presence of counsel, contrary to People v. Dorado, 62

Cal.2d 338, 42 Cal. Rptr. 169, 398 P.2d 361 [People v. Spencer, 66

Cal.2d 158, 57 Cal. Rptr. 163, 424 P.2d 715]; coerced confession

People v. Sanchez, 70 Cal.2d 562, 576-577, 75 Cal. Rptr. 642, 651,

451 P.2d 74, 83]; admission of extra-judicial declaration of a co-de-

fendant [People v. Gonzales, 66 Cal.2d 482, 58 Cal. Rptr. 361, 426

P.2d 929] ; inadequate representation by counsel [People v. McDowell,

69 Cal. 2d 737, 73 Cal. Rptr. 1, 447 P.2d 97]; denial of change of

venue. [People v. Tidwell, 3 Cal.3d 62, 89 Cal. Rptr. 44, 473 P.2d

762.]

8In this connection, it is worthwhile noting, as this Court has noted,

that imposition of the death penalty “is different in kind from a

finding that the defendant committed a specified criminal offense . . “ag

[Witherspoon v. Illinois, supra, 391 U.S. at 522 (fn. 20).] No doubt,

when a jury performs its usual function of determining which of the

varying versions of fact testified to is more probably or certainly the

true one, they need no precise or specific guidance as to how to weigh

the evidence. Even then, however, some guidelines are customarily

given, either in the way of the judge’s comments on the facts, or a

more formal instruction. For examples in the instant case, see, the

instructions on circumstantial evidence; on judging the credibility of

witnesses; on the credit to be given a witness false in one part of his

testimony; on how to weigh the testimony of one witness as against

that of a number of witnesses; on the credit to be given expert wit-

nesses. [A. 22-23.] But much more than determinations of credibil-

ity, weight and probable truth, are involved in the determination

whether the defendant should be put to death or imprisoned for life.

(See, Witherspoon v. Illinois, supra, 391 U.S. at 522 (fn. 20).] Surely,

in the accomplishment of a function so grave and awesome as that,

there is need for some guidance as to what it is that the law considers

2 CE ae nce ee

12

that the jury were told not to be arbitrary when, in the

same breath, they were told the matter of sentence rested

in their absolute discretion, for the exercise of which the

law provided them with no guidelines or standards. Nor is

the possibility of executive clemency, as a matter of grace,

any constitutional substitute for the right to be condemned

only by due process of law. It is the law, not grace, that

must save one’s rights. [Cf., the cases last cited, Petr. Br,,

22. Also, to the same effect, see: Jn re Gault, 387 U.S. 1,

73, Harlan, J. conc. and diss.; Grand Trunk R. Co. v. Mich-

igan R. Com., 231 U.S. 457, 470-471; In re Harris, 69 Cal.

2d 486, 490, 72 Cal. Rptr. 340, 343, 446 P.2d 148, 151.]

The short of the matter is that, no matter how procedur

ally correct or fair a penalty trial is, or how effectively pro-

cedural error may be reviewed, the determination of the

penalty is left to the absolute and uncontrolled determin-

ation of the jury. That is the constitutional deficiency in

California’s procedure, for it leaves imposition of the ulti-

mate penalty unguided and uncontrolled by law.

4. The Record Does Not Reasonably Permit Of The

Inference That The Death-Penalty Verdict Against

McGautha Was Based On Constitutionally Permissible

Grounds. Even If It Did, Unconstitutionality Would

Not Be Avoided, For It Is The Statute, Not Judicial Dis-

cretion, That Must Save The Defendant’s Rights And,

Constitutionality Must Be Judged By The Natural Oper-

ation And Effect Of The Statute.

California argues that it is inferrable from the record here

that McGautha’s jury acted on constitutionally permissible

grounds in sentencing him to death while sparing his equ

ally guilty co-defendant from that fate. (Cal. Br., 81-98.)

The conclusion reached by California from that premise is

that McGautha is precluded from “attacking the constitu-

to be significant determinants and as to what are the objectives that

the law seeks to reach by the penalty to be imposed.

_——

13

tionality of the California procedure on grounds that have

no application to himself or his situation.” [Cal. Br., 81.]

Assuming, for the moment, that California’s premise is a rea-

sonable deduction from the record rather than a guess

inspired by zealous advocacy, the conclusion derived from

it is unsound in law.

First, The ground upon which McGautha attacks the

California procedure is that it does not provide any stan-

dards by which the jury may determine to deprive him of

his life; and, more, that the jury in his case acted pursuant

to an express instruction to act in their own absolute dis-

cretion, for the exercise of which the law provided no stan-

dard. That is a ground directly applicable to him and his

situation. There can be no question that the applicable

state statute prescribes no standards or that the jury were

instructed exactly as we have said they were instructed.

California makes a show of arguing that there are standards;

but despite frequent repetitions of that assertion, this Court

is never referred to any statute or any part of the charge

in this case (beyond the direction not to act arbitrarily), in

which the nature or import of those standards is stated.

The most that California can do is to point to the gen-

eral instruction to consider all the evidence, that the jury

“may” consider the circumstances surrounding the crime,

the defendant’s background and history, and the facts in

aggravation or mitigation. [Cal. Br., 96.] They were not

told, however, what effect for or against imposition of the

death penalty any of those circumstances had. Under stan-

dards legislatively enacted, some, even many of the general

categories into which these circumstances fit, might not be

an aggravating circumstance, without proof of which the

extreme penalty could not be imposed. [See, for example,

Model Penal Code (Am. Law Inst., May 14, 1962), sec.

210.6.) As it was, however, there were no limits of any

kind upon the extent to and manner in which each indivi-

dual juror could act upon his own subjective notions of

what was or was not arbitrary in the premises, selecting

ee

REO OUD OT phe reo one

a

anyone or more of the circumstances as the, to him, deci-

sive one. They were instructed to that effect, as we have

already noted. No amount of rationalization, we submit,

can make anything less out of this definitive charge to the

jury:

14

“. . . Notwithstanding facts, if any, proved in

mitigation or aggravation, in determining which pun

ishment shall be inflicted, you are entirely free to

act according to your own judgment, conscience,

and absolute discretion ... [4] ... the law itself

provides mo standards 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 ...” [A. 221-

223. Italics ours. ]

The fact is that McGautha’s penalty trial was standardless,

as the jury were clearly and emphatically told. That is his

constitutional challenge of the procedure. It is a challenge

directly applicable to him and the procedure by which he

was tried.

Second: If, by chance, the jury did act on constitution-

ally permissible grounds, that was a fortuitious event, not

the consequence of anything required by the law of Cali-

fornia. Yet, it is the “law itself [that] must save the part-

ies’ rights . . . not the discretion of the courts as such...”

[Louisville & N.R.R. Co. v. Central Stockyards, 212 U.S.

132, 143-144. See, also: Coe v. Armour Fertilizer Works,

237 U.S. 413, 424-425; In re Gault, supra, 387 U.S. at 73;

Grand Trunk R. Co. v. Michigan R. Com., supra, 231 U.S.

at 470-471; In re Harris, supra, 69 Cal.2d at 490, 72 Cal.

Rptr. at 343, 446 P.2d at 151.]

The law itself puts no limits on the jury. Human pro-

pensities being what they are, it is perfectly possible, indeed

not unlikely, that under the California procedure juries will

take constitutionally impermissible considerations into

account and base their verdict upon them. The constitution-

ality of a statute must be judged by its natural operation

15

and effect. [Near v. Minnesota, 283 U.S. 697, 708-709;

Yick Wo v. Hopkins, supra, 118 U.S. at 373; Bailey v. Ala-

bama, 219 U.S. 219, 235-236; Davis v. Schnell, S.D. Ala.,

81 F. Supp. 872, 880, affirmed 336 U.S. 933. And, cf.

Anderson v. Martin, 375 U.S. 399, 402, in which it was

held constitutionally impermissible, having regard to known

attitudes of many people in Louisiana, to require that the

race of a candidate for public office be stated on the ballot.

Third: On a record showing that a jury was instructed

in accordance with a set of standards, such as that found

in the Model Penal Code, sec. 210.6, or in the Study Draft

of a New Federal Criminal Code, proposed by the National

Commission on Reform of Federal Criminal Laws (see U.S.

Br., App. G], and showing evidence sufficient to support a

finding of one or the other categories of facts specified as

necessary to imposition of the death penalty, the inference

would naturally follow, on review, that the jury found the

needed facts and acted accordingly. A vice of California’s

procedure is that that kind of informed review of a death-

penalty judgment cannot be made; there is no way of know-

ing, or rationally inferring. on what basis the jury acted.’

No doubt that is why the State Supreme Court has consist-

ently been unwilling to set aside the jury’s determination

of penalty save for error of law. [See, Petr. Br., 16.] There

would be no need for such unwillingness if, for instance, as

a condition to imposing the death penalty, there had to be

evidence of a specific category or kind of fact, and that

evidence was lacking. With such standards, the death pen-

alty would be imposed by the law; and, as with all ques-

tions of law, an erroneous application of the law to the

facts in evidence would call for appropriate appellate relief.

while the right to an appeal is not necessarily a part of due pro-

cess, once the State accords the right “it must be kept free of unrea-

soned distinctions that can only impede open and equal access to the

courts...” [Williams v. Oklahoma City, 395 U.S. 458, 459.]

aD cumeeeeneteiebeeemmemeeenmetenmnee ein een ---

16

Perhaps, under such a set of standards, the penalty ver-

dict in McGautha’s case might have been no different.'°

The point is that then the conformity of the verdict to the

Constitution and law could have been informedly reviewed

and error corrected. That could not be done in the instant

case, under the present state of California’s law. We do not

know and cannot intelligently infer the particular facts and

circumstances among the many open to them upon which

the jury acted; and under the present state law the jury

were not limited to, or required to act upon the basis of,

any of them.

Obviously, it is no clue to the basis of their action that

the jurors disclaimed any racial prejudice, and swore to act

on the evidence and the law [see, Cal. Br., 82-86], since

they were not given any “law” in respect of penalty other

than to be told there was none. Nor is ther any such clue

in the opening statement of counsel for McGautha’s co-de-

fendant.'’ However, mich of a “model of restraint” the

prosecuting attorney’s argument may have been [Cal. Br,

93], it could not take the place of adequate standards pro-

vided by law, given the jury by the court as the law of

the case. [See, note 10, supra.] Absent that procedure,

the argument neither forecloses the possibility that the

jurors acted on their own subjective ideas, nor gives any

reliable indication of the bases upon which they did act.

‘if standards are required by the Constitution, the failure to pro-

vide or apply them was an error of constitutional magnitude and,

therefore, not subject, even in California [see, Cal. Br., 39] to the

harmless error rule. In such a case it is immaterial that but for the

error the same result probably would have been reached. [Chapman

v. California, 386 U.S. 18, 21-24.]

"In the instructions at the guilt phase of the trial which, the jury

were told, they were to follow in the penalty phase [A. 221], they

were instructed that they “must not consider as evidence any state-

ment of counsel made during the trial . . .”; and that it was the judge’s

duty to instruct them in the law, and their duty “‘as jurors to follow

the law as I [the judge] shall state it to you. . .” [A. 22.]

17

It cannot be assumed, from the fact that the jury inquired

about the possibility of parole [A. 224], that the verdict

was based on the jury’s “concern that petitioner be

precluded from killing a third time.” (Cal. Br., 95.] When

that inquiry was made, the jury were promptly given the

“Morse instruction,” which told them that “the matter of

parole is not to be considered by you in determining the

punishment . . .” [A. 224-225. And, see, Petr. Br., 9.]

And, finally in this regard, it is no reliable indication of the

basis upon which they did act that there were any number

of varying facts and circumstances [Cal. Br., 88 et seq. 1],

anyone or more of which, under the court’s charge, could

have been the foundation of their action. On the other

hand, it is entirely conceivable that given an appropriate

charge under a set of standards like those, for example, of

the Model Penal Code, sec. 210.6, or the federal Study

Draft, one or another of those facts and circumstances

would have been accepted as making it desirable not to

inflict the death penalty. '?

No doubt, under a constitutional formulation of standards

many a jury will return, and lawfully so, a death-penalty

verdict. It is not inconceivable that McGautha’s jury might

have done so. But all that is no negation of our point—for

our point in this regard is not that the extreme penalty is

per se unconstitutional, but that when imposed it must be

imposed by a procedure that preserves the defendant’s right

not to be deprived of his life save by due process of law.

California seemingly argues that the verdict was motivated by the

finding that McGautha was the “trigger man.” [Cal. Br., 88.] The

evidence on that question was in sharp conflict. [Petr. Br., 7 (fn. 5).]

An instruction that even though the evidence sufficed to sustain that

finding, if it did not foreclose all doubt, such doubt would be a mitig-

ating circumstance, [cf. Model Penal Code, sec. 210.6 (1\(f)], could

very well have produced a sentence of imprisonment for life.

cdeeidincindadeda dates a 7

THE ARGUMENT OF THE UNITED STATES, LIKE CALIFORNIA'S,

DOES NOT ANSWER BUT AVOIDS THE QUESTION WHETHER

DUE PROCESS OF LAW REQUIRES THAT THE DEATH-PENALTY

SENTENCING PROCEDURE MUST BE GUIDED BY ASCERTAIN.

ABLE STANDARDS FIXED BY LAW.

A great deal of our reply to California’s argument is

applicable, as well, to the argument of the United States.

The United States, like California, fails to deal with the

proposition that “‘due process of law” means, as this Court

has said, that the government cannot take one’s life, liberty

or property “except in accordance with the valid laws of

the land . . .” [Giaccio v. Pennsylvania, 382 U.S. 399, 403];

which, in turn, means ascertainable standards, by which not

merely to notify the public of what is forbidden, but also

to guide judges and jurors in decreeing such a deprivation.

[Petr. Br., 20-27.] If that is a correct statement of consti-

tutional law, it is not made incorrect or inapplicable at bar

by the collateral considerations of usage, asserted prefer-

ability or importance of the jury system in our judicial

process, to which the United States adverts in lengthy detail.

Also, like California, the United States argues, in effect,

that a system of “flexible standards,” evidently meaning no

standards, is preferable to one based on so-called rigid stan-

dards. That is a legislative question, going to the kind and

content that each state, within broad constitutional limits,

is free to decide for itself. It is not a judicial question. Nor

is it any explication of what due process of law means in

respect of standards.

What follows is a reply to the general tenor of the brief

for the United States.

19

1. The Constitutional Requirement Of Standards

Is Not Negated By The Age Of The Practice

Of Standardless Sentencing.

To a predominant extent the argument for the United

States is a repetition of the theme that, thus it has always

been, so, therefore, must it always be. [See, e.g, U.S. Br.,

29 et seq.) Of course, the age of a given course of pro-

cedure is a circumstance to be taken into consideration,

but it begs the question to rest decision on that cir-

cumstance. [See, Leland v. Oregon, 343 U.S. 790, 798.]

The question is whether the Due Process Clause requires

standards. If it does, the right to have them is not lost

by prescription.'? [Cf., Walz v. Tax Commission, 397 U.S.

664, 678.] Having regard to the traditional reluctance of

courts of last resort to decide constitutional questions not

raised or, if raised, not necessary to be decided. [Cf, Max-

well v. Bishop, 398 U.S. 262], it is not surprising that there

should be no discussion of our immediate question in earl-

ier cases dealing with our phases of jury sentencing. Plenary

consideration of this question (for which purpose, this

Court has said, certiorari was granted in the instant cases

[see, Maxwell v. Bishop, supra, 398 U.S. at 267 (fn. 4)])

cannot be forestalled by such understandable silence in the

past.

13“No degree of antiquity can give sanction to a usage bad in itself.”

[Money v. Leach, 3 Burr. 1742, 1767, 19 How. St. Tr. 1027, Yates

& Ashton, JJ.]

“It is revolting to have no better reason for a rule of law than that

it so was laid down in the time of Henry IV...” [O. W. Holmes,

Jr., Collected Legal Papers (Harcourt, Brace & Howe, 1920), p. 187.]

Mr. Justice Brandeis was no foe of stare decisis, for it was he who

said, “It is usually more important that a rule of law be settled, than

that it be settled right . . .” [Di Santo v. Pennsylvania, 273 U.S. 34,

42, Brandeis, J., diss.]. Yet, he pointed out, speaking for the Court

in Erie R. Co. v. Tompkins, 304 U.S. 64, 77-78, that while an erron-

eous construction of a statute, long adhered to, might not be over-

tumed, the case was different when the unconstitutionality of the

course previously pursued has been made clear; in that event, the

Court is compelled, he said, to overturn the course previously pursued.

20 OEP a eer

20

In this regard, Williams v. New York, supra, 337 U.S. 241,

it is said by the United States, “stands directly in the way

of petitioners’ contentions...” [U.S. Br., 26.] It does

not. There the constitutional objection that we make here,

perhaps, could have been raised; but, it was conceded away,

[337 U.S. at 251-252.] The holding was simply that there

was no constitutional right to have any particular rule of

evidence made applicable to sentencing procedures. Further-

more, the Court was careful to note that its opinion was

“not immune from scrutiny under the due-process clause

..” [337 U.S. at 252 (fn. 18).]

In its footnote 37, the United States cites a number of

cases to the point that the position we take here has been

rejected by the courts. No doubt that is true of the major-

ity opinion in Jn re Anderson, supra, 69 Cal. 2d 613, 73

Cal. Rptr. 21, 447 P.2d 117, on the authority of which the

case at bar was decided, and in which further review was

not sought. But, this Court has never squarely decided the

question, and until it does the question will not have been

put to rest. Despite California’s citation of a number of

these cases in its opposition to the petition for certiorari,

this Court took the case, evidently to provide the occasion

for a definitive decision."* [See, Maxwell v. Bishop, supra,

398 U.S. at 267 (fn. 4).]

4 Indeed, few, if any, of the cited cases can be considered a square

decision of the precise question here involved. A good many of them

went off on other grounds, as, for example, did Andres v. United

States, 333 U.S. 740, in which the question of constitutionality was

not presented in the petition for certiorari; and was not discussed

by the Court.

Many of the cases arose under statutes making the death penalty

mandatory, unless there was a recommendation to mercy. [See, eg.,

Petition of Ernst, 3 Cir., 294 F.2d 556, 561.] A statute like Cali-

fornia’s is significantly different in its structure and constitutional

implications. [See, Petr. Br., 32-33.]

In several of the cases our question was not directly presented, but

arose tangentially as a part of the reasoning upon which the single-

verdict procedure was being challenged. [See, e.g., Segura v. Patter-

———

21

2. Non-Capital Sentencing Procedures And Discretion-

ary Sentencing By A Judge Are Not Necessarily Implic-

ated By Petitioner’s Contention Of Unconstitutionality,

As They Are Classifiably Different From Capital Sen-

tencing.

It is also vigorously argued that the requirement of stan-

dards which we invoke, implicates all sentencing procedures,

even if it is the judge who sentence. The short answer to

this argument is, of course, that if standards are required

by the Constitution as a condition upon the sentencing

power, it is a condition upon whatever agency of the state

is given the power.

In any event, the case of the judge is classifiably differ-

ent from that of the jury. By reason of his specialized

training and experience, it is legislatively reasonable to

assume, as the British Royal Commission has said, that he

“can be relied on to decide the sentence calmly and with-

out emotion and by reference to general standards and con-

siderations beyond the facts of the individual case and the

son, 10 Cir., 402 F.2d 249, 252-253; Maxwell v. Bishop, 8 Cir., 398

F.2d 138, 148, vacated on other grounds 398 U.S. 262.]}

There was no unanimity of opinion in the cases upon the reasons

for the result reached. In fact, in some of the cited cases no reasons

for the result were given. [See, e.g., McCants v. State, 282 Ala. 397,

401, 111 So.2d 877, 880-881] ; or the reason was, in effect, only reli-

ance on the discussion in Andres, supra, 333 U.S. 740, in which the

constitutional question was not raised or discussed. [See, e.g., Florida

ex rel. Thomas v. Culver, 5 Cir., 253 F.2d 507]; or it was that the

question was concluded by People v. Seiterle, 65 Cal.2d 333, 54 Cal.

Rptr. 745, 420 P.2d 217. [See, United States ex rel. Nelson, N.D.

Cal., 275 F.Supp. 261, 265]. Seiterle, in turn, was decided, without

other discussion or reasoning, on the authority of two earlier Califor-

nia decisions [People v. Shipp, 59 Cal.2d 845, 31 Cal. Rptr. 457, 382

P.2d $77, [People v. Duncan, 51 Cal.2d 523, 334 P.2d 858; neither

of which decided or was concerned with the absence of standards as a

ground of unconstitutionality; and Giaccio v. Pennsylvania, supra, 382

U.S. 399, in which the question was not involved.

a

knowledge of the jury. This argument would apply with

special force to cases where the sentence of death is at

issue...” [Report, p. 200.] The judge, it is also legisla-

tively reasonable to suppose, would have a knowledge, not

possessed by the ordinary juror, of the law’s purposes and

objectives in prescribing a given sanction or sanctions for an

offense and thus be able to choose the sanction most likely

to carry out those purposes or attain those objectives,

Surely, he would be in a better position to make the deter-

mination than a jury that is not told what those purposes

or objectives are or how, as a matter of law, they bear

upon the determination of sentence.

In addition, there is the fact, so far as sentencing for non-

capital crimes is concerned, of the great difference in the

“nature and gravity of the decision rendered by the trier of

fact in the penalty trial as contrasted with that of other dis

cretionary sentencing decisions .. .”” [Jn re Anderson, 69

Cal. 2d 613, 661-662, 73 Cal. Rptr. 2d 54, 447 P.2d 117,

150, Tobriner, Traynor and Peters, JJ, diss.] The death

sentence, once executed, is irrevocable. Lesser sentences,

though gave enough in their personal consequences, are

remedial or ameliorable in the event of after-discovered

error, or accomplishment of their rehabilatory objective.

California, under its Indeterminate Sentence Law, has had

discretionary non-capital sentencing for many years. Its

courts have had no trouble finding adequate standards for

exercise of discretion in the law, and differentiating the

procedure, on that account, from standardless procedures.

[See and cf., People v. Sidener, 58 Cal.2d 645, 650-651, 25

Cal. Rptr. 697, 700-701, 375 P.2d 641, 644-645; Jn re Lee,

177 Cal. 690, 692-694, 171 Pac. 958, 959-960; In re

O'Malley, 101 Cal. App. 2d 80, 83, 224 P.2d 488, 490; In

re Wells, 35 Cal.2d 889, 892-894, 221 P.2d 947, 949-950;

In re McLain, 55 Cal.2d 78, 87, 9 Cal. Rptr. 824, 830, 357

P.2d 1080, 1086; In re Smith, 33 Cal.2d 797, 803-804,

205 P.2d 662, 667; Jn re Larson, 44 Cal.2d 642, 645, 648,

283 P.2d 1043, 1044, 1046. And see the thorough discussion

of this subject by Mr. Justice Tobriner in his dissenting

22

23

opinion in In re Anderson, supra, 69 Cal.2d at 661-666, 73

Cal. Rptr. at 54-57, 447 P.2d at 150-153.)

3. A Jury’s Participation In The Judicial Process,

Even As The Surrogate Of The Community, Is Subject

To The Limitations Imposed By The Constitution.

First: 1t is also argued by the United States that the jury,

as the surrogate of the community, reflects community atti-

tudes and standards; and that it is important that this com-

munity participation in the judicial process be preserved

Conditioning the jury’s operation by standards fixed by law

no more endangers or impairs that participation than limit-

ing their verdicts of guilt to those cases in which the statu-

torily prescribed elements of the crime are found the evi-

dence beyond reasonable doubt. The jury is not an ad hoc

legislature, regardless of how important its participation in

the adjudicatory process may be.

Further, neither the desirability nor the importance of

jury participation negates the insistence of due process of

law that there be standards. Even when the attitude of the

community is unmistakably expressed by a direct vote of

the whole electorate, the result of that action must pass the

test of the Constitution. [See, e.g, Reitman v. Mulkey,

387 U.S. 369, 370-371, holding unconstitutional an initia-

tive measure overwhelmingly adopted in California, which

had the effect and purpose of encouraging and involving

the State in racial discrimination; Lucas v. Forty-Fourth

General Assembly, 377 U.S. 713, 715-718, 736-737, hold-

ing unconstitutional a legislative apportionment adopted in

Colorado by vote of the people.]

Second: The matter of sentencing, it is argued, may

safely be left to the “common sense” of the jury. It is no

disparagement of the jury system to point out that a jury’s

common sense is free to operate only within the limits

fixed by the Constitution. Not even the United States, we

suspect, would argue in favor of the validity of a statute

that left to the common sense of the jury, without any

24

objective definition or standards, the question whether the

killing of a human being was murder, punishable by death,

or manslaughter punishable by a term of imprisonment. The

jury, no matter how common sensible it may be, cannot be

permitted to legislate for the occasion only. There is no

difference in principle simply because it is sentencing, rather

than a finding of guilt, that is involved. [Petr. Br., 23-29, ]

CONCLUSION

Complying with Rule 40(h), we have specified “with

particularity the relief” to which we believe the petitioner

is entitled. [Petr. Br., 35.] No challenge to that specific-

ation or the reasoning by which it was derived [Petr. Br,,

34] has been offered by California. If, as we submit is $0,

California’s capital-sentencing procedure offends against the

Due Process Clause, there is, seemingly, no issue as to the

relief the petitioner ought to have.

Respectfully submitted,

Herman F., Selvin

Attorney for Petitioner,