Petitioners Brief — McGautha v. California

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Supreme Court of the United States

OCTOBER TERM, 1970

TITION KOT PRINTED No. 204

NSE NOT PRINTED

JAMES EDWARD CRAMPTON,

Petitioner,

Vv.

THE STATE OF OHIO,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

BRIEF FOR THE PETITIONER

Of Counsel: John J. Callahan

Dan H. McCullough 801 Security Building

William T. Burgess Toledo, Ohio 43604

William D. Driscoll Attorney for Petitioner

Gerald S. Lubitsky

Cary Rodman Cooper

E, ROBERT SEAVER, ous

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TABLE OF CONTENTS

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ETT 6S aw Ge bee ee Keen ease yr sccsress® 1

SRD cic bcc ce abe savevr en seveves 2

CONSTITUTIONAL PROVISIONS

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0 REO TTT ETT TET E Tee L TTT ee 3

SES SOF US cece vb ssesrvesecasnes 7

ARGUMENT:

I. The Procedure in Capital Cases Where the Trier of

Fact Determines Both Guilt and Punishment in a

Single Verdict Violates the Fifth Amendment to the

Constitution Because an Accused Person Is Compelled

To Relinquish His Right Against Self-Incrimination

When He Testifies on the Question of Punishment ..... 9

Il. The Practice of Granting the Trier of Fact Absolute

and Uncontolled Discretion in Capital Cases To

Choose Between the Penalties of Life and Death Vio-

lates the Due Process and Equal Protection Clauses

Because the Trier of Fact Makes Its Determination

Unguided by Any Standards Fixed by Law ........... 19

ei cee ca aceon cee b saa as 8s chk e 32

CS Seer Se SCN eC eata SUS Kachin K bed €VGea 33

ETE TES EE EEO TT ET OTe 33

TABLE OF AUTHORITIES

Cases:

Ashbrook v. State, 49 Ohio App. 298; 197 N.E. 214

IETS am ord oar Cee pa en ee A Te 10, 11, 23

Chambers v. Florida, 339 U.S. 227 (1940) ............... 30

Cox v. State of Louisiana, 379 U.S. 536 (1956) ........... 31

Garner v. Louisiana, 368 U.S. 157 (1961)................ 28

(ii)

Giaccio v. Pennsylvania, 382 U.S. 399 ( peers eres 9, 39

Griffin v. California, 380 U.S. 609 (1965)................ 13

Griffin v. Ilinois, 351 U.S. 12 (1956) .................. 30

Hanoff v. State, 37 Ohio St. 278 Ss ko acd xk oo ll

Hoppe v. State, 29 Ohio App. 467; 163 N.E. 715 (1928) ....:. 13

Howell v. State, 102 Ohio St. 411; 131 N.E. 706 (1921) ....20,23

In re Anderson, 69 Cal. 2d 613, 447 P.2d 117 Bee 27, 31

Irwin v. Dowd, 366 U.S.717 (1961) ................... 16

Jackson v. Denno, 378 U.S. 368 RENE Fe hk ec cake 8,17

Johns v. State, 42 Ohio App. 412; 182 N.E. 356 | eee ee 1]

Keveny v. State, 109 Ohio St. 64; 141 N.E. 845 oo See 1]

Loving v. Virginia, 388 U.S. 1 (1967)................... 30

Malloy v. Hogan, 378 U.S. 1 (1964)........... ae NR 7, 13

Mempa v. Rhay, 369 U.S. 128 AEP AFR SS Sa ely dus 13

North Carolina v. Pearce, 395 U.S. 711 he oe we ou wae 8,14

Powell v. Alabama, 287 U.S. 45 (1932) ................. 17

Rehfeld v. State, 102 Ohio St. 431; 131 N.E. 712 fo. | 20

Sabo v. State, 119 Ohio St. 231; 163 N.E. 28 eee 11

Shelton v. State, 102 Ohio St. 376; 131 N.E. 704 (1921)... .10, 23

Silsby, et al. v. State, 119 Ohio St. 314; 164 N.E. 232

oe TESA Sree ee haath ae Seay RC TEA 12

Simmons v. United States, 390 U.S. 377 errr 8, 14, 16

Skinner v. Oklahoma, 316 U.S. 535 es Fee be 9, 30

Snyder v. Massachusetts, 291 U.S. 97 NS Wait dys 2s Shae 17

Specht v. Patterson, 386 U.S. 605 NS Saws Ces bs 6 kee 7, 13

Spencer v. Texas, 385 U.S. 544 (1967) ................ 17, 18

State v. Austin, 71 Ohio St. 317; 73 N.E. 218 i San 5,9, 15

State v. Caldwell, 135 Ohio St. 424; 21 N.E.2d 343 (1939).... 2

State v. Ellis, 98 Ohio St. 21; 120 N_E. 218 ee 20, 23

State v. Frohner, 150 Ohio St. 53 (89 N.E.2d 868 (1948)) .. . 13,20

State v. Hector, 19 Ohio St. 2d 167; 249 N.E.2d 912 (1969)... 11

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(iii)

State v. Hollos, 76 Ohio App. 521; 65 NE.2d 144 (1944) .... 11

State v. Karayians, 108 Ohio St. 505; 141 N.E. 334 (1923) ... 20

State v. Murdock, 171 Ohio St. 221; 174 N.E. 2d 543

ccc ect acivscrseechonteseatveseeperene 11

State v. Pierce, 44 Ohio Law Abs. 193; 62 N.E. 2d 270

PPP eer Perr rT rer rer eS Tr tie ree 21

State v. Snow, 12 Ohio Op. 200; 32 N.E.2d 36 (1938) ...... 13

State v. Stewart, 176 Ohio St. 156; 198 N.E.2d 439 (1964) ... 26

State v. Tudor, 154 Ohio St. 249; 95 N.E.2d 385 (1950) ..... 20

State v. Williams, 85 Ohio App. 236; 88 N.E.2d 420 (1947)... 11

State ex rel. Townsend v. Bushong, 146 Ohio St. 271; 65

ee os es o's 6 45'4.4% 0S wee 6 Od vow ees 5

Thompson v. Louisville, 362 U.S. 199 (1960) ............. 28

Townsend v. Burke, 334 U.S. 736 (1948) ................ 16

United States v. Jackson, 390 U.S. 570 (1968) ......... 8, 14, 15

Williams v. Florida, 399 U.S. 78 (1970) ................. 19

Winters v. New York, 333 U.S. 507 (1948) ............... 28

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............. 9, 32

Constitution of the State of Ohio:

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Statutes:

Federal:

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State:

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Ohio Revised Code:

SP oo as re re ny 2, 19, 26, 28, 29

EE Ss xk Sey co ys wa ieee ee

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nee, OSE ee Beane re: 3

Se i Said aps ce chd kd ese COST as 3

ES eile Vir cl's-b ss 400% ba cease 3

sei le ae gg EE EE en eee ee ee 2

WE Ss pe es cay ck ie eee 7

og lca cho ate tS EA ne tee SE 7

SII Soc leb ig Se pon el ae 19

I orn hoc As Kis gos ce ea 4

CU Sh ee ee uN Sp Vek ide Cae 12

IE Go howd seis (oe ok 12, 19

Other Authorities:

Ohio Department of Mental Hygiene and Corrections, Ohio

Judicial Criminal Statistics, 1959 through 1968 .......... 26

United States Department of Justice, Bureau of Prisons,

National Prisoner Statistics, 1960 through 1969.......... 27

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 204

JAMES EDWARD CRAMPTON,

Petitioner,

Vv.

THE STATE OF OHIO,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

OPINION BELOW

The opinion of the Supreme Court of Ohio (A. 83-88) is

reported at 18 Ohio St. 2d 182; 248 N.E.2d 614.

JURISDICTION

The Supreme Court of Ohio entered judgment June 11,

1969 (A. 82). The petition for a writ of certiorari was filed

July 31, 1969, and was granted June 1, 1970, limited to

questions 2 and 3 of the petition. (A. 89) The jurisdiction

of this Court rests on28 U.S. Code, Section 1257(3).

ere oe

ee:

2

QUESTIONS PRESENTED

1. Whether the Ohio statute which provides that the

trier of fact shall determine both guilt and punishment in

a single verdict in cases of murder in the first degree vio-

lates petitioner’s right to be free from self-incrimination.

2. Whether the Ohio statute which provides that the

trier of fact may grant or withhold a recommendation of

mercy in cases of murder in the first degree, and which

provides no standards or criteria to assist the trier of fact

in making such determination, violates petitioner’s right to

due process and equal protection of the law.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This case involves the Fifth and Fourteenth Amendments

to the Constitution of the United States.

The statutes of the State of Ohio involved in this case

are Section 2901.01 of the Ohio Revised Code:!

No person shall purposely, and either of deliberate

and premeditated malice, or by means of poison, or

in perpetrating or attempting to perpetrate a rape,

arson, robbery, or burglary, kill another.

Whoever violates this section is guilty of murder in

the first degree? and shall be punished by death

¢

‘AI section references are to the Revised Code of Ohio, effective

October 1, 1953. There is no official edition of the Revised Code,

but Page’s Ohio Revised Code Annotated (1969 edition) or Baldwin’s

Ohio Revised Code and Service (1964 edition) are accepted by the

Ohio courts as authentic.

7In addition to the crime defined in Section 2901.01 Ohio

Revised Code, Ohio has four other crimes of murder in the first

degree in which the penalty is death unless the jury recommends

mercy: murder by obstructing a railroad (Section 2901.02); killing

a prison guard (Section 2901.03); killing a police officer in the

discharge of his duties (Section 2901.04); and abduction resulting in

death (Section 2901.28). There are two crimes for which the death

Ae nme

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3 ;

unless the jury trying the accused recommends

mercy, in which case the punishment shall be

imprisonment for life.

Murder in the first degree is a capital crime under

Section 9 and 10 of Article I, Ohio Constitution.* '

and Section 2947.05 of the Ohio Revised Code:

Before sentence is pronounced, the defendant must

be informed by the court of the verdict of the jury,

or the finding of the court and asked whether he

has anything to say as to why judgment should not

be pronounced against him.*

STATEMENT

Petitioner, James Edward Crampton, a 40-year old man,

was indicted for murder in the first degree for the killing

of his wife, Wilma Jean, on January 17, 1967. They had

been married almost four months at that time. (A. 57)

On November 2, 1966, about six weeks after the mar-

riage, petitioner was admitted as a patient to the psychiatric

ward of a private hospital for treatment for excessive use

penalty is mandatory: killing the President, Vice President, or person

in line of succession (Section 2901.09), and killing the Governor or

Lieutenant Governor of any state (Section 2901.10). Abducting

a person for the purpose of extortion is punishable by death unless

the jury recommends mercy (Section 2901.27).

3Effective October 1, 1953. 125 Laws of Ohio 7. The death

penalty was mandatory on conviction of murder in the first degree

prior to April 3, 1898. 33 Laws of Ohio 33 (1835). On that date

the General Assembly provided that the jury could recommend

mercy, in which case the penalty would be life imprisonment. 93

Laws of Ohio 233. Since that time, the first degree murder statute

has remained essentially intact in the definition of the crime and the

provision permitting the jury to select punishment.

*Effective October 1, 1953. 125 Laws of Ohio 7; 113 Laws of

Ohio 197 (1929). Original enactment: 66 Laws of Ohio 313 (1869).

4

of drugs. (A. 10) After two days there he was transferred

by his wife to Toledo State Hospital, where he remained

confined under order of the Probate Court of Lucas

County, Ohio (A. 12), until late December, 1966, when he

was released to his wife for a “trial visit” during the

Christmas holiday season. (R. 61)

After the holidays when his wife sought to have him

return to the State Hospital, petitioner objected and left

the family home. (R. 61) He joined a male friend, one

Collins, in Pontiac, Michigan, and during a two-week period

they travelled by automobile to places in Michigan and

Indiana, frequently taking drugs which they procured with

stolen money. (R. 60-72)

On January 17, 1967, they broke into the home of

petitioner’s mother-in-law, near Toledo, where petitioner

obtained a .45-caliber pistol. At about 7:00 p.m. that

evening, Collins drove petitioner to the Crampton residence

in Toledo. There they parted and petitioner was admitted

to the house by his wife. (R. 73-83)

At approximately 11:00 p.m. the same evening, peti-

tioner was arrested while driving a stolen automobile.

(R. 136-140) Police officers on searching the car, found a

.45-caliber pistol wedged between the front seats. (R. 140)

The following morning the body of petitioner’s wife

was found in her home. She had been shot in the face.

(R. 132; 194)

On arraignment, petitioner entered pleas of “not guilty”

and “not guilty by reason of insanity”’ to the charge of

murder in the first degree. (A. 4) The court ordered the

petitioner committed to Lima State Hospital for 30 days

observation.’ (A. 1, 76) Following psychiatric examina-

“Section 2945.40, Ohio Revised Code: “In any case in which

insanity is set up as a defense, or in which present insanity of the

accused is under investigation by a court or jury, the court may

commit the defendant to a local hospital for the mentally ill, or

the Lima state hospital, where the defendant shall remain under

observation until such time as the court directs not exceeding one

month. * * *”

—

5

tion it was reported to the court that petitioner was sane,

that he understood the nature of the charge against him

and could counsel in his own defense. The court then

ordered the cause to proceed to trial before a jury.

(A. 1, 76)

To support his plea of not guilty by reason of insanity,’

petitioner presented testimony of a psychiatrist (R. 376-

405), and offered into evidence the medical records of his

case from Toledo State Hospital (Excerpt, A. 5-20; R. 406)

and Lima State Hospital (Excerpt, A. 21-48; R. 407). Peti-

tioner’s mother, Charlotte Williams, testified about peti-

tioner’s childhood, education and general background.

(A. 49-59)

Petitioner did not testify at his trial.

The issues of his guilt, punishment and insanity were

simultaneously tried and submitted to the jury. (A. 63-68

(guilt); A. 68-70 (insanity)) On the issue of punishment,

the jury was instructed as follows:

“If you find the defendant guilty of murder in the

first degree, the punishment is death, unless you

recommend mercy, in which event the punishment

is imprisonment in the penitentiary during life.”

(A. 70)

“You have no right to discuss or consider the subject

of punishment if your verdict is manslaughter in the

first degree or murder in the second degree. On

Where a person committed to Lima State Hospital was of suffi-

cient soundness of mind to understand and appreciate the nature of

the charge against him, to comprehend his situation, and was men-

tally capable of furnishing his counsel facts essential to the presenta-

tion of a proper defense, he may be returned to the proper county

for trial. State ex rel. Townsend v. Bushong, 146 Ohio St. 271;

65 N.E.2d 407 (1946).

7A defendant who enters a plea of not guilty by reason of insanity

must establish such defense by a preponderance of the evidence.

State v. Austin, 71 Ohio St. 317; 73 N.E. 218 (1905); A. 69.

6

those two charges, your duty is confined in the

determination of the guilt of the defendant. In the

event you find the defendant guilty, the duty to

determine the punishment is placed, by law, upon

the court.

“You must not be influenced by any consideration

of sympathy or prejudice. It is your duty to care-

fully weigh the evidence, to decide all disputed

questions of fact, to apply the instructions of the

court to your finding, and to render your verdict

accordingly. In fulfilling your duty, your efforts

must be to arrive at a just verdict.

“Consider all the evidence and make your findings

with intelligence and impartiality, and without bias,

sympathy or prejudice, so that the State of Ohio

and the defendant will feel their case was fairly and

impartially tried. * * *” (A. 71-72)

Petitioner was found guilty of murder in the first degree,

without a recommendation of mercy (A. 2, 78), and the

trial court sentenced him to death in the electric chair.

(A. 2-3, 79)

On appeal to the Sixth District Court of Appeals of

Ohio, the judgment of the trial court was affirmed. (A. 80)

In his appeal to the Supreme Court of Ohio,® petitioner

raised the question of the constitutional propriety of the

single-verdict procedure and the question of permitting the

jury absolute discretion in the matter of punishment. The

Sarticle IV, Section 2(B)2 of the Ohio Constitution was amended

effective May 7, 1968, to provide that: “The supreme court shall

have appellate jurisdiction as follows: (a) In appeals from courts of

appeals as a matter of right in the following . . . (ii) Cases in which

the death penalty has been affirmed * * *.” Prior to the adoption

of this amendment, a defendant in a Capital case where the death

penalty had been affirmed was required to raise a substantial consti-

tutional question or a question deemed of “general and great public

interest” to gain a review of his case in the Supreme Court. Peti-

tioner’s appeal to the Supreme Court of Ohio was filed August 13,

1968.

Supreme Court of Ohio rejected the petitioner’s claims

(A. 86-87 (single-verdict procedure); A. 88 (absolute jury

discretion)) and affirmed the judgments of the lower

courts. (A. 82)

SUMMARY OF ARGUMENT

I.

Petitioner challenges Ohio’s unitary trial procedure?

which required him to submit three issues to simultaneous

trial by jury: (1) guilt or innocence, (2) sanity or insanity,

and (3) punishment of life or death. On the issue of

punishment, he was barred from presenting any evidence to

support a plea for mercy and was prevented from exercising

his right of allocution until after his fate had been finally

and irrevocably decided by the jury. At the same time the

jury was considering his guilt and punishment, he was

forced by the procedure to submit his medical records,

with their incriminating case histories, to sustain his defense

of insanity.

Such procedure violates a defendant’s Fifth Amendment

protection against self-incrimination because it unnecessarily

compels him to choose between exercising his Fifth and

Fourteenth Amendments right against self-incrimination

(Malloy v. Hogan, 378 U.S. 1 (1964)) and his Fourteenth

Amendment right “to be heard .. . and to offer evidence of

his own”’ (Specht v. Patterson, 386 U.S. 605, 610 (1967))

on the question of his punishment. As a result, petitioner

In two other instances Ohio law authorizes the jury to set the

punishment: breaking and entering an inhabited dwelling at night,

which is punishable by life imprisonment unless the jury recommends

mercy, in which case the punishment is 5 to 30 years imprisonment

(Section 2907.09, Ohio Revised Code), and robbery and unlawful

entry of a financial institution, which is punishable by life imprison-

ment unless the jury recommends mercy, in which case the punish-

ment is not less than 20 years imprisonment (Section 2907.141, Ohio

Revised Code).

8

was forced to make “‘an unfree choice” (North Carolina v.

Pearce, 395 U.S. 711, 724 (1969)). His election to exercise

his right against self-incrimination deprived the jury of his |

testimony in mitigation, and the jury’s decision as to his |

punishment was made “upon less than all of the relevant

evidence” (Jackson v. Denno, 378 U.S. 368, 389, n. 16

(1964)). The exercise of the Fifth Amendment privilege,

therefore, is needlessly penalized (United States v. Jackson,

390 U.S. 570 (1968); Simmons y. United States, 390 U.S.

377 (1968)), and the penalty is increased when the proce-

dure compels the submission to the jury of the issue of a

defendant’s insanity simultaneously with the issues of his

guilt and punishment. The resulting confusion of issues

prevents the “reliable and clear-cut determination” required

by the Due Process Clause (Jackson v. Denno, supra.).

Ohio’s practice of commiting the question of a Capital

defendant’s punishment to the exclusive and uncontrolled

discretion of the jury results in arbitrary and discriminatory

imposition of the death penalty. The jury is not required

to find any requisite facts on which to base its choice, nor

is it informed of any general rule of policy underlying the

state’s retention of alternate punishments for the crime of

first degree murder, which crime includes a broad range of

homicide offenses. The jury’s determination is absolute,

final and free from any judicial control or review.

A defendant cannot present evidence to support a plea

for mercy and is barred from addressing that point until his

final argument to the jury. This unilateral procedure pre-

vents the jury from considering all the evidence relevant to

the question of punishment.

The practice of permitting the jury unrestricted discretion

prevents a capital defendant from knowing how to conduct

his defense on an issue which may cost him his life. He is

forced to guess at what the jury will consider significant in

deciding whether he lives or dies.

_ ae

This court has condemned as a violation of the Due

Process Clause vague and standardless statutes (Giaccio v.

Pennsylvania, 382 U.S. 399 (1966)) imposing, at the jury’s

discretion, a small amount of costs on a defendant. Certainly

that clause applies with equal vigor when the unbridled dis-

cretion of the jury may forfeit a human life.

The capital jury in Ohio has the “naked and arbitrary

power” (Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886)) to

make “‘an invidious discrimination” (Skinner v. Oklahoma,

316 U.S. 535, 541 (1942)) in violation of the constitutional

guaranty of Equal Protection of Law.

ARGUMENT

THE PROCEDURE IN CAPITAL CASES WHEREBY THE

TRIER OF FACT DETERMINES BOTH GUILT AND

PUNISHMENT IN A SINGLE VERDICT VIOLATES THE

FIFTH AMENDMENT TO THE CONSTITUTION BE-

CAUSE AN ACCUSED PERSON IS COMPELLED TO

RELINQUISH HIS RIGHT AGAINST SELF-INCRIMINA-

TION WHEN HE TESTIFIES ON THE QUESTION OF

PUNISHMENT.

Under Ohio procedure the jury in this case was required

to hear and decide simultaneously three issues:

1. Whether Crampton was guilty or not guilty of

murder in the first degree;

2. Whether Crampton was sane or insane at the

time of the alleged crime;

3. Whether Crampton should die by electrocution

or be imprisoned for life.

On the first issue the state was required to produce evi-

dence to establish guilt. On the second issue the burden

of proof was on petitioner to produce evidence of his mental

state at the time of the alleged crime.'® But on the third

10State v. Austin, 71 Ohio St. 317; 73 N.E. 218 (1905); (A. 69).

10

issue, the dominant question of whether he should live or

die, petitioner was barred from offering any evidence. Under

Ohio practice, a defendant in a capital case pleading for

mercy is prohibited from introducing any evidence to sup-

port that plea, as the matter of punishment is not recognized

as an issue upon which evidence may be presented. !!

The jury under this procedure hears evidence on the issues

of guilt and insanity, and decides these two issues, together

with the issue of punishment, on which no evidence is per-

mitted, at a single sitting. Not until the argument phase of

the trial is reached is a defendant permitted to mention the

matter of punishment to the jury, and then his counsel is

granted merely the “privilege . . . to argue” that question on

the basis of evidence which has been directed only to the

question of the defendant’s guilt.'* _ Petitioner, therefore,

was compelled throughout the trial to assume simultaneously

the paradoxical positions of contending that he was not

guilty, but that if he were guilty, he was not responsible for

his action because he was insane at the time; but that if he

were both guilty and responsible for his action, he should

be granted mercy. Such defense can only be self-destructive.

The plea for mercy will be interpreted by the jury as a con-

fession of guilt. The plea of insanity will be viewed as an

attempt to escape any punishment. The defendant’s alterna-

tive is to stand solely on a plea of not guilty, which means,

in effect, risking all on a plea of innocence. If the jury

returns a verdict of guilty, it may then elect to impose the

death penalty because, as laymen, they think the defendant

sought to trick them into believing he is innocent.

Such procedure cannot be other than mortally prejudicial

to a defendant on trial for murder in the first degree. He

can present no evidence on the question of punishment.

"Ashbrook v. State, 40 Ohio App. 298; 197 N.E. 214 (1935).

'2 Shelton v. State, 102 Ohio St. 376: 131 N.E. 704 (1921).

w—

11

Under the defense of insanity, he may introduce evidence

to prove that he was not responsible for his actions, but

while such evidence might be deemed mitigating with refer-

ence to the issue of punishment, the jury is instructed that

it must be considered only with reference to the issue of

guilt.'? (A. 70) If a defendant wishes to testify in support

of the defense of insanity, or to explain to the jury the cir-

cumstances at the time of the crime, he can do so only if

he surrenders his right to be free from self-incrimination.

Once he decides to take the witness stand, he subjects him-

self not only to cross-examination about the crime for which

he is on trial, but also to impeachment—a process which, in

Ohio, permits the state to introduce a broad spectrum of

potentially prejudicial evidence. 144 Having once testified, he

may find himself recalled for further cross-examination in

the state’s case in rebuttal.’ If, on the other hand, a

defendant elects not to testify, he risks the sentence of

death from a jury ignorant of his character and background,

and totally unaware of any mitigating facts surrounding the

commission of the alleged crime.

'34shbrook v. State, 49 Ohio App. 298; 197 N.E. 214 (1935).

'4Hanoff v. State, 37 Ohio St. 178 (1881); Sabo v. State, 119

Ohio St. 231; 163 N.E. 28 (1928). Ohio law permits a witness to be

cross-examined about prior convictions for felonies and statutory mis-

demeanors, State v. Murdock, 172 Ohio St. 221; 174 N.E.2d 543

(1961); his connection with other similar acts, State v. Hollos, 76

Ohio App. 521; 65 N.E.2d 144 (1944); prior convictions in military

service, his dishonorable discharges and numerous changes in employ-

ment, State v. Williams, 85 Ohio App. 236, 88 N.E.2d 420 (1947);

and about pending indictments, State v. Hector, 19 Ohio St. 2d 167;

249 N.E.2d 912 (1969). The limits of cross-examination of a witness

to test his recollection or credibility must rest largely within the dis-

cretion of the court and prejudicial error results only where the

record clearly shows abuse of that discretion. Keveny v. State, 109

Ohio St. 64; 141 N.E. 845 (1923).

'S Johns v. State, 42 Ohio App. 412; 182 N.E. 356 (1931); appeal

dismissed by Ohio Supreme Court, 124 Ohio St. 671 (1932).

ers

ay

12

Although Ohio by statute extends the right to allocution

to criminal defendants, '* the effective exercise of that right

is nullified in cases where the accused is convicted of mur-

der in the first degree because the jury then selects the

punishment and pronounces sentence on the defendant.

The subsequent sentencing by the court merely echoes the

jury’s decision and, although the court must ask the defend-

ant'? “whether he has anything to say as to why judgment

should not be pronounced against him,” nothing he can say

will prevent the court from imposing the punishment previ-

ously determined by the jury.'® Allocution in capital cases,

therefore, is meaningless, and the sentencing of the defend-

ant by the court is reduced to an incantation ritual.

Once the jury has decided that a defendant must die, that

decision stands immune from judicial review by both the

trial and appellate courts in Ohio. Only if the trial or

'®Section 2947.05, Ohio Revised Code: “Before sentencing is pro-

nounced, the defendant must be informed by the court of the verdict

of the jury, or the finding of the court, and asked whether he has

anything to say as to why judgment shoulc not be pronounced

against him.”

!7 Allocution is mandatory. Failure by the court to grant a defend-

ant the right is reversible error, Silsby, et al. v. State, 119 Ohio St.

314; 164 N.E. 232 (1928).

'®Section 2947.06, Ohio Revised Code, effective September 24,

1963 (original enactment: 46 Laws of Ohio 52 (1848)), provides

that: “The trial court may hear testimony of mitigation of a sentence

at term of conviction or plea, or at the next term. The prosecuting

attorney may offer testimony on behalf of the State, to give the

court a true understanding of the case. The court shall determine

whether sentence ought immediately to be imposed or the defendant

placed on probation. * * *.” While permitting the court to hear tes-

timony in mitigation of a sentence, this section does not authorize

the court to set aside, modify or reverse a sentence, but only to

delay imposition of the sentence or to place defendant on probation.

Although no court test of the applicability of this section to capital

Cases appears in the records, it is doubtful that it has any reference

to cases other than those where the judge determines and imposes

sentence.

eS Se =

13

reviewing court uncovers a prejudicial error of law requiring

that the conviction be reversed, or finds that the evidence

was insufficient to convict, can the jury’s judgment on the

issue of punishment be set aside. '”

The Ohio procedure of a single-verdict trial, therefore,

forced petitioner at the commencement of his trial to make

an agonizing appraisal of the alternatives available to him.

Under the Constitution, he was guaranteed certain procedural

rights in the sentencing process: “an opportunity to be

heard... and to offer evidence of his own.” Specht v.

Patterson, 386 U.S. 605, 610 (1967); Mempa v. Rhay, 389

U.S. 128 (1967). By statute, he was given the right of allo-

cution. If these rights were to be exercised effectively,

petitioner had to exercise them before sentencing, but to do

so within the single-verdict procedure of Ohio would have

required him to surrender his constitutional right against

self-incrimination, Malloy v. Hogan, 378 U.S. 2 (1964);

Griffin v. California, 380 U.S. 609 (1965) and face cross-

examination that could incriminate him.

Confronted with choosing between these alternatives at

the risk of his life, petitioner declined to surrender his right

against self-incrimination. His voice was never heard by

those who condemned him to die, and only after his fate

had been decided was he asked, in an empty gesture,

whether he had anything to say as to why judgment of

death by electrocution should not be pronounced against

him. (R. 438-440; App. la-3a, infra)

The Ohio practice produces a bruising antagonism between

constitutional rights at a time when a defendant is impelled

to choose one of the two rights he wishes to assert at his

trial—the right to speak to his sentencer or the right to

'9 State v. Frohner, 150 Ohio St. 53; 80 N.E.2d 868 (1948); State

v. Snow, 12 Ohio Op. 200; 32 N.E.2d 36 (1938); appeal dismissed

by Ohio Supreme Court, 134 Ohio St. 239 (1938); Hoppe v. Staie,

29 Ohio App. 467; 163 N.E. 715 (1928); appeal dismissed by Ohio

Supreme Court, 119 Ohio St. 651 (1928).

NON eset eee

ay

14

remain silent. In effect, a defendant is coerced into choos-

ing one of the rights because he fears the consequences that

may result from selecting the other. His choice, therefore,

is not a completely free one.

The dilemma confronting a defendant is far more than an

uncertainty as to trail tactics. Under the single-verdict pro-

cedure, he is placed “in the dilemma of making an unfree

choice.” North Carolina v. Pearce, 395 US. 7} 1, 724

(1969). He knows that on the question of his guilt, the jury

will be instructed what to consider and what not to consider,

He knows that on the issue of his punishment, the jury is

free to condemn him for any reason, for no reason, or for

twelve different reasons. The single-verdict procedure so

intertwines the issues of guilt and punishment that a defend-

ant in deciding how to proceed in the trial of these issues is

faced with choices which entail the exercise or relinquish-

ment of certain guaranteed rights while forewarned that the

jury is free to make death the price of his selection.

This antagonism between fundamental rights generated by

the Ohio procedure comes within the prohibition of Sim-

mons v. United States, 390 U.S. 377 (1968). There the

defendant faced the dilemma of either giving up what he

believed to be a valid Fourth Amendment claim, or “‘in legal

effect, to waive his Fifth Amendment privilege against self-

incrimination.” This Court held it “intolerable that one

constitutional right should have to be surrendered in order

to assert another.”’ /bid., 394.

This Court has also held that the exercise of the Fifth

Amendment right against self-incrimination in criminal trials

must not be penalized or needlessly burdened. United States

v. Jackson, 390 U.S. 570 (1968). The simultaneous submis

sion to the jury of both the guilt and the punishment issues

results in just such a penalty and needless burden: the

defendant must risk his life if he chooses to remain silent at

his’ trial.

That the single-verdict procedure is an unnecessary burden

on the exercise of the Fifth Amendment right is clear when

15

the alternative procedures available to the state are con-

sidered: (1) A bifurcated jury trial, where the jury first

decides the guilt or innocence of the accused, and then, if

the verdict is guilty, hears evidence in mitigation and aggra-

vation and fixes or recommends the punishment; (2) sen-

tencing by a judge, either with or without the recommenda-

tion of the jury; and (3) the elimination of the death penalty.

In United States v. Jackson, 390 U.S. 570 (1968), this

Court examined the provision of the federal kidnapping

statute granting the jury the exclusive prerogative to inflict

the death sentence, and considered whether such provision

“needlessly encourages” waivers of jury trial and pleas of

guilty and thereby “needlessly chill(s) the exercise of basic

constitutional rights,” 390 U.S., at 582, 583. The question

in the case at bar is identical: Does the simultaneous trial

of guilt and punishment needlessly encourage waiver of the

right to remain silent or needlessly chill the right to allocu-

tion and to present evidence on the issue of punishment

relevant to rational sentencing? “The question is not

whether the chilling effect is ‘incidental’ rather than inten-

tional; the question is whether that effect is unnecessary and

therefore excessive.” 390 U.S., at 582. Since the alterna-

tive modes of procedure available to the state do not involve

the same destructive collision of the defendant’s rights, the

“chilling effect” of the single-verdict procedure clearly “‘is

unnecessary and therefore excessive.”

In the case at bar the burden imposed by the single-verdict

procedure was enhanced when petitioner sought to plead

the affirmative defense of insanity. The jury then was

required to consider whether petitioner was responsible for

his acts in addition to determining his guilt and punishment.

To sustain the defense of insanity, medical evidence of

petitioner’s mental condition, not only at the time of the

crime but also prior to the crime, had to be offered by peti-

tioner to the jury.2” The medical evidence available to him

2°State v. Austin, 71 Ohio St. 317; 73 N.E. 218 (1905).

“a

16

consisted of the records of his confinement at Toledo State

Hospital and Lima State Hospital, both of which records

contained reports of his statements to psychiatrists, psycho-

logists and case workers about his convictions and imprison-

ment for prior crimes. The history of petitioner’s use of

drugs was, of necessity, also included in these records.

In deciding how to conduct his defense in a trial where

the issues of guilt, insanity and punishment were decided

simultaneously at one sitting of the jury, petitioner was con-

fronted with a second and equally wrenching dilemma affec-

ting his rights: either support the plea of insanity, and

thereby permit evidence of bad character and unrelated

crimes to reach the jury, or abandon his plea of insanity and

risk everything on the lone plea of innocence. If he were to

support his plea of insanity, the evidence introduced and

directed to the question of his responsibility for the com-

mission of the act would be certain to prejudice the jury’s

consideration of the other issues of guilt and punishment.

If, on the other hand, petitioner were to abandon his plea

of insanity, he would be deprived of a possibly valid defense,

and the jury would decide his fate unaware that he may not

have been responsible for the commission of the crime.

Whichever course he chose, his choice had to be made under

the compulsion of a procedure which commanded him to

offer countervailing evidence on the question of guilt and

thereby prejudice himself on the question of punishment, or

withhold such evidence and risk his life before a jury which

would not be fully informed on all of the facts of his case.

Here, again, the unitary trial procedure forces a choice

and creates the “undeniable tension” between constitutional

rights condemned in Simmons v. United States, 390 U.S.

377, 394 (1968). Petitioner for a second time faced the

dilemma of surrendering one constitutional right in order to

exercise another. The Due Process Clause guaranteed him a

fair trial on the issues of guilt and punishment, /rvin y.

Dowd, 366 U.S. 717 (1961): Townsend vy. Burke, 334 US.

736 (1948), ‘‘and an adequate opportunity to be heard in

~ ene Bore nce

—,

17

defense of (the charge).”” Powell v. Alabama, 287 U.S. 45,

68 (1932); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

But the confusion of issues produced by the unitary trial

procedure required petitioner to present his defense of

insanity in such manner that it could only infect the jury’s

consideration of guilt and punishment. Had he opted to

forego presenting evidence of insanity, he would be denied

the opportunity to assert a defense he considered valid. No

matter which choices petitioner made in the two dilemmas

thrust upon him by the existing procedure, on each occasion

he had to surrender on constitutional right in order to gain

the benefit of another. Here, he had to give up his right to

a fair hearing on the issue of punishment in order to assert

the defense of insanity.

In Jackson v. Denno, 378 U.S. 368 (1964), this Court

recognized that the questions of the voluntary nature of a

confession and the guilt of the accused where two issues

which could not be considered simultaneously by a jury

because of the substantial threat that the evidence bearing

on one issue would contaminate the jury’s consideration of

the other, thereby preventing either issue from being “fairly

and reliably determined.” 378 U.S., at 389. The Ohio

practice compounds this hazard of contamination by com-

pelling the submission of a third issue potentially prejudicial

to the jury’s consideration of the other two. Such proce-

dure is not “fully adequate . . . to insure a reliable and

clear-cut determination” of the issues required by the Due

Process Clause, 378 U.S,,.at 391. .

Although in Spencer v. Texas, 385 U.S. 554 (1967), this

Court declined to bring that state’s procedure of informing

the jury of previous convictions within the proscription

announced in Jackson v. Denno, its refusal to do so was

grounded on the fact that the Texas procedure involved no

“specific constitutional right.” 385 U.S., at 565. The case

at bar focuses on petitioner’s constitutional right not to

incriminate himself. He was denied that right when he was

compelled to submit the issues of guilt, insanity and punish-

~

suet A ROLE EOI IP EN

18

ment simultaneously to the jury. Were it not for a procedure

which forced the trial of all three issues at once, petitioner

would not have been compelled to submit to the jury his

medical records, with their prejudicial case histories, until

after his guilt had been decided, and he would not have

been forced to remain silent if he could have exercised his

right of allocution at a time when it could have been

effective.

The Ohio procedure coerces a defendant into choosing

between alternatives, forewarning him that whatever choice

he makes he is wagering his life:

On the issues of guilt and punishment:

(1) If he exercises his right against self-incrimination, he

risks his life to a jury which wili have less than all relevant

evidence on the question of his punishment, or

(2) If he waives his Fifth Amendment right, he subjects

himself to cross-examination and impeachment.

On the issue of insanity:

(1) If he asserts his right to plead not guilty by reason of

insanity, he takes the risk that the medical evidence of his

mental condition will disclose data prejudicial on the issues

of guilt and punishment, or

(2) If he declines to plead not guilty by reason of insanity,

he surrenders his right to a fair trial before a jury not fully

informed of all relevant facts.

““(1)t flouts human nature to suppose that a jury would

not consider a defendant’s previous trouble with the law in

deciding whether he has committed the crime currently

charged against him.” Spencer v. Texas, 385 U.S. 554

575 (Warren, C. J., dissenting). This is no less true when the

jury decides the question of punishment.

The unitary trial procedure followed in Ohio aided the

state in convicting petitioner. He was forced to present evi

dence containing prejudicial data about himself which would

not have been obtainable by the State “but for the defend-

~>~—"

19

ant’s coerced cooperation.” Williams v. Florida, 399 U.S.

78, 110 (1970) (Black, J., dissenting in part). The effect of

this evidence upon a: jury considering the issues of guilt and

punishment was certiain to be prejudicial to petitioner. Had

he been afforded the: opportunity to present evidence on the

issue of insanity, apart from the issue of punishment, his

right to a fair trial would have been protected; and had he

been permitted to address the jury on the issue of his pun-

ishment, he would mot have been compelled to invoke his

Fifth Amendment riight at the risk of his life. The single-

verdict procedure in Ohio, as it presently functions in capi-

tal cases is nothing less than a practice requiring “the

defendant to assist tlhe state in convicting him, or be punished

for failing to do so.” Ibid. , 399 U.S. at 115.

THE PRACTICE. OF GRANTING THE TRIER OF FACT

ABSOLUTE ANID UNCONTROLLED DISCRETION IN

CAPITAL CASESS TO CHOOSE BETWEEN THE PENAL-

TIES OF LIFE AND DEATH VIOLATES THE DUE

PROCESS AND EQUAL PROTECTION CLA'‘SES BE-

CAUSE THE TRIER OF FACT MAKES ITS DETER-

MINATION UNGUIDED BY ANY STANDARDS FIXED

BY LAW.

Section 2901.01,, Ohio Revised Code, establishes the pun-

ishment for the offfense of murder in the first degree:

“Whoever violates this section is guilty of murder in

the first degree and shall be punished by death un-

less the jury trying the accused recommends mercy,

in which case the punishment shall be imprisonment

for life.”’?"

2! Applicable also tio a bench trial. Section 2945.06 of the Ohio

Revised Code provides that: “In any.case in which a defendant

waives his right to ttrial by jury and elects to be tried by the

court ... If the accu:sed is charged with an offense punishable with

death, he shall be ‘tried by a court to be composed of three

judges .. . Such judges or a majority of them may decide all ques-

tions of fact and law arising upon the trial, and render judgment

a

20

Whether or not such recommendation should be made “‘is a

matter vested fully and exclusively in the discretion of the

jury.””*_ The only requirement for the valid exercise of this

discretion is that it must be based upon the evidence pre-

sented at the trial. In Howell v. State, 102 Ohio St. 411;

131 N.E. 706 41921), the Ohio Supreme Court held that it

was not error to charge the jury in a capital case “‘to con-

sider and determine whether or not, in view of all the cir-

cumstances and facts leading up to, and attending the alleged

homicide as disclosed by the evidence, you should or should

not make such recommendation.”

Although the Howell instruction may be viewed as estab-

lishing a standard to guide the jury in determining punish-

ment, it is a totally inadequate standard and, in subsequent

decisions by the Ohio Supreme Court, has been diluted to a

point where a jury in a capital case is merely told, as it was

in the case at bar (A. 70, 71), that it has to make a choice

of punishments on the basis of the evidence.?°

Simply directing the jury to consider the bulk of the evi-

dence without advising them what to look for in the evidence

or how to analyze it with reference to the punishment ques

tion can hardly be deemed an instruction providing the jury

with criteria or guidelines for the exercise of its discretion.

accordingly. If the accused pleads guilty of murder in the first

degree, a court composed of three judges shall examine the witnesses,

determine the degree of the crime, and pronounce sentence accord-

ingly. In rendering judgment of conviction of an offense punishable

by death, upon a plea of guilty, or after trial by the court without

the intervention of a jury, the court may extend mercy and reduce

- punishment for such offense to life imprisonment in like manner

upon recommendation of mercy by a jury.” State v. Frohner, 150

Ohio St. 53; 80 N.E.2d 868 (1948).

22State v. Ellis, 98 Ohio St. 21; 120 N.E. 218 (1918); State

v. Tudor, 154 Ohio St. 249; 95 N.E.2d 385 (1950).

23Rehfeld v. State, 102 Ohio St. 431; 131 N.E. 712 (1921); State

v. Karayians, 108 Ohio St. 505; 141 N.E. 334 (1923).

—

21

Juries attempting to function under such instruction have

sought to draw specific standards from the court before

determining punishment, but have been frustrated by the

Ohio rule which permits the jury to learn only that it has

a discretionary choice based on the evidence of the case.”

24State v. Caldwell, 135 Ohio St. 424; 21 N.E.2d 343 (1939).

The opinion discloses the following colloquy between the foreman of

the jury and the court, 135 Ohio St. at 425; 21 N.E.2d at 344:

“‘The Foreman: What are the grounds for granting mercy?

“‘The Court: That rests solely and wholly in your sound dis-

cretion. You should determine whether or not in your dis-

cretion mercy should be granted from a consideration of the

evidence, the character of the crime and the posing Baad

cumstances. Are there any other questions which you ?

“‘The Foreman: No, I don’t think so. I beg your pardon.

I have another question or two. What are extenuating cir-

cumstances? Are they something which we can determine

in our judgment alone?

“*The Court: No, if there are any, you must determine them

from the evidence.

“‘The Foreman: Well, then, may we consider sociological

matters and environment in determining this question of

granting mercy?

“The Court: No-—they have nothing whatever to do with

this case.

“Thereupon the defendant, through his counsel objected to

the form and substance of the court’s charge and requested

that the following instructions be given to the jury:

“** * * Your honor, I request that you instruct the jury in

substance as follows: In determining whether or not in your

discretion you shall grant mercy’ to the defendant, you may

consider environmental factors and sociological conditions,

and in determining whether or not these factors exist you

shall consider all the evidence permitted to go to you in this

case, and all reasonable inferences to be derived therefrom.

You may also consider, in making up your mind on the

question of mercy, the appearance, demeanor and actions

of the defendant as you have seen him here in open court.

“‘The Court: No. I can not so instruct the jury.’”

The Ohio Supreme Court held that the refusal to give the requested

instruction did not constitute prejudicial error. Jbid., at 428. See

also State v. Pierce, 44 Ohio L. Abs. 193; 62 N.E.2d 270 (1945),

where another jury sought instruction on the question of punishment.

Se comer

—

22

The decision on punishment, once made by the jury, is

absolute and final, not subject to review or modification by

the trial court or the appellate courts unless the verdict of

conviction is found to be legally erroneous or based on insuf-

ficient evidence.** Thus in a capital case Ohio invests twelve

laymen with the power of life and death to be exercised,

after hearing evidence, at their uninhibited discretion, unre-

stricted by any reviewing authority.

What is the nature of this discretion that can deprive a

man of his life?

First, its exercise is not required to rest upon any prere-

quisite findings of fact. In virtually every other judgment

made by a jury, in either civil or criminal cases, there is a

requirement that spedfic factual findings be made before a

determination of the issue at bar can be reached, but a jury

in a capital case is absolved from making any finding on

which to base its selection of the punishment to be imposed.

Second, the jury is given no guide in determining which

circumstances preclude the imposition of the death penalty.

Third, in deciding the question of punishment, the jury is

not told which facts it must specifically consider. The court

merely says “consider all the evidence . . .”

Fourth, there is no enumeration by the court of any facts

or concerns which the jurors may consider.

Fifth, nor is there an enumeration of facts or concerns

which the jury should not consider, other than the general

injunction that the decision be made “without bias, sym-

pathy or prejudice . ..”

Sixth, the jury is gven no legal norm or standard to guide

its judgment. The equivalents of the standard of “‘reason-

able care” or the “‘ressonably -udent man” are missing in

the charge given the jury in a capital case.

25See footnote 19, p. 10, supra.

23

Seventh, the jury is unfamiliar with even the general ob-

jectives cf the state in authorizing capital juries to decree

that some murderers may live and others die.

Eighth, assuming that judicial review were authorized, the

exercise of such broad descretion prevents effective review.

A jury permitted to exercise discretion of this nature in

a capital case is armed with nothing less than the raw and

arbitrary power to kill or let live, unguided by principle,

undirected by concern for specified relevant facts, uncon-

trolled by general rules of law, free to exercise its power for

any reason or for no reason, and urreviewable by any other

legal authority.

When such lethal agency is set in motion by the state, it

is obligatory that the life-or-death decision it makes in the

exercise of its discretion rest upon data as complete and

exhaustive as can be presented by the parties who will be

affected by the decision. But under Ohio practice, the jury

in making its selection of men to die, is deprived by the

single-verdict procedure of information necessary to make a

rational selective judgment on that issue, as was argued in

Part I hereof, pp. 8-16, supra. A defendant cannot put

before the jury data which he believes it should have from

him in order to make a rational decision on his punishment

unless he waives his Fifth Amendment Privilege. Even if he

attempts to introduce evidence of prior mental illness or

insanity at the time of the crime, as petitioner did, he does

so at the risk of the jury’s being prejudiced by it on the

issue of his guilt.

In capital cases Ohio juries are instructed that the ques-

tion of punishment “should be determined from the know-

ledge the juror acquires as a juror and from the facts and

circumstances developed or undeveloped by the evidence.’

Howell v. State, 102 Ohio St. 411: 131 N.E. 706 (1921).

24

The jury however, is prevented from acquiring any know-

ledge of facts or circumstances which the person accused

deems helpful to him on the issue of punishment, as the

defendant is foreclosed by law from offering evidence “dir-

ected toward a claim for mercy.”?7 Although a defendant

is permitted “to argue to the jury the desirability, advisa-

bility or wisdom of recommending mercy,””* effective argu-

ment on that point is virtually impossible when the defen-

dant is barred from introducing evidence which would

provide the necessary grist for the argument. The concession

in the law that the defendant may argue for mercy but only

on the basis of evidence of the commission of the crime is

as much an empty gesture as granting him the right of allo-

cution after his sentence has already been determined.

Indeed, a defendant is a capital case under the Ohio pro-

cedure is prohibited from even mentioning the subject of

mercy to the jury until the argument of the case. He cannot

inquire of the veniremen on voir dire as to their opinions of

the wisdom or unwisdom of a recommendation of mercy in

the event of a conviction of murder in the first degree.?? Dis

cussion by a defendant of the question of whether he should

be permitted to continue to live is forbidden to him at all

times throughout the trial of the case.*° He is denied the

right to address the jury on the subject of mercy until the

trial is all but completed, and then at the eleventh hour he

finds himself in the position of imploring the jury for

mercy after having denied his guilt throughout the trial. The

effect on a jury of laymen can only be that the defendant

attempted to deceive them as to his guilt from the outset of

the trial, but now admits his crime and seeks their mercy.

?7Ashbrook v. State, 49 Ohio App. 298; 197 NE. 214 (1935).

28Shelton v. State, 102 Ohio St. 376; 131 N.E. 704 (1921).

29 State v. Ellis, 98 Ohio St. 21; 120 N.E. 218 (1918).

Ashbrook v. State, 49 Ohio App. 298; 197 N.E. 214 (1935);

State v. Ellis, 98 Ohio St. 21; 120 N.E. 218 (1918).

_—

25

As they enter upon their deliberations on the question of

punishment, the jurors are totally ignorant, despite what

they have heard at the trial, as to the reasons underlying the

procedure which obliges them to determine whether a man

should live or die for having committed the crime of mur-

der in the first degree. They know only that they have the

power of life and death over an individual, but what con-

siderations they should bear in mind in exercising that power

have not been explained to them, except to say that they

should ‘“‘consider all evidence” and act “impartially without

bias, sympathy or prejudice.” They are entirely unaware of

any general objectives the state may have had in mind in

imposing on them the task of deciding whether a man lives

or dies.

If there is any objective in the procedure which authorizes

a jury to make a choice between life and death as punish-

ment, it can only be that the state intends that the jury dif-

ferentiate among individuals who have committed the crime

of murder in the first degree. But why differentiate? —un-

less there are certain purposes to be served by selecting some

murderers to live and condemning others to die. The State

of Ohio has not identified the objectives which it thinks

worthy of consideration in support of its decision to retain

death by electrocution as punishment for murder “in the

first degree; nor has it defined the objectives which impelled

it to permit some first-degree murderers to live. When a

sentence is imposed in the case of a non-capital crime, it is

generally on the basis that the security of the community

requires that the offender be incarcerated. But when a cap-

ital offender is sentenced, that premise is disregarded in the

cases of some men, but not others, and there is no rational

explanation of why, considering this same security of the

community, some men are permitted to live and others are

sentenced to die.

The range of capital murder cases and the convicted

defendants whose punishments differ is extraordinarily

: E.

broad.*' The Ohio statute on murder in the first degree

includes murder by means of poison, or in perpetrating or

attempting to perpetrate a rape, arson, robbery, burglary and

those homicides committed with deliberate and premedita-

ted malice.** The element of deliberate and premeditated

malice requires no appreciable duration of time. The test in

Ohio, as in other states, is the “existence of the reflection,”

not the quantum of time.** It is inconceivable that the

legislature which authorized the death penalty in all of those

cases intended that it should be used in very many of them,

and, indeed, in practice it is used in only a relatively small

number.**

31For other capital crimes in Ohio, see footnote 2, p. 2, supra.

32Section 2901.01, Ohio Revised Code.

>? State v. Stewart, 176 Ohio St. 156; 198 N.E.2d 439 (1964),

A. 64-65.

34From 1949 to 1958, there were 217 (estimated) convictions for

murder in the first degree in Ohio, but only 49 of the defendants

were sentenced to death. From 1959 to 1968, the figures are as

follows:

Number of First- Number of Death

Degree Murder Sentences Upon

Year Convictions Convictions

less than 7; exact

RS ii.b to dk ea 24 figure unreported

bab bv s0-# sce ee 24 2

eae 27 5

re ae 33 3

DS oso beh o 6% 23 2

a 34 6

ear eer 42 8

SGN 46k 66 06 boos 38 5

URIS 45 9

ee re 58 10

Total 348 54

The source of the 10 conviction figures is Ohio Judicial Criminal

Statistics, an annual publication of the Department of Mental Hygiene

and Correction of the State of Ohio. The source of the death-

a

|

a

ee ee

27

The agency utilized by the State of Ohio in imposing the

death penalty, where the accused demands a jury trial, is a

panel of twelve laymen selected to try a particular case.>*

They assemble, hear evidence only on the question of guilt,

impose the punishment which they think proper in the exer-

cise of their absolute and unlimited discretion, and then dis-

perse. Before they came together as jurors, it is highly un-

likely that any of them had given any thought as to what

considerations should influence a decision to permit a man

to live or to condemn him to death. While they sit as jur-

ors. they are given no instructions, guidelines, standards or

criteria to assist them in deliberating on possibly the most

momentous decision they will make in their lifetimes. For

a brief span of time, the capital jury becomes an ad hoc

legislature, forming its own but unascertainable standards

for determining whether a man should live or die.

Petitioner submits that the Ohio practice, as above des-

cribed, violates the Due Process and Equal Protection Clauses

of the Fourteenth Amendment for the reasons so compel-

lingly argued in the dissenting opinion of Justice Tobriner in

In re Anderson, 69 Cal. 2d 613,__; 447 P. 2d 117, 131

(1968), in which opinion he was joined by Chief Justice

Traynor and Justice Peters. The dissenters contended that

a statute which confers absolute discretion on the trier of

fact “subjects the convicted capital defendant to a power of

arbitrary decision” and violates the “constitutional impera-

sentence figures is the National Prisoner Statistics Bulletin entitled

“Executions” or “Capital Punishment,” an annual publication of the

Bureau of Prisons of the United States Department of Justice.

The 1959-1968 figures include both jury and bench trials. The

figures for the prior period are not clear as to whether they are for

jury trials only or for all trials.

354 unanimous verdict is required. Article I, Section 5, Ohio Con-

stitution: “The right of trial by jury shall be inviolate, except that in

civil cases, laws may be passed to authorize the rendering of a verdict

by the concurrence of not less than three-fourths of the jury.”

28

tive that laws infringing upon life and liberty be framed in

terms of reasonably ascertainable standards.”’>°

In order to satisfy the requirements of the Due Process

Clause, a statute defining a criminal act must set forth

standards sufficiently ascertainable to give adequate warn-

ing of which acts will be punished. Winters v. New York,

333 U.S. 507 (1948). If it does not, it deprives a defend-

ant of his right to a reasonable Opportunity to prepare and

present his defense, and it effectively prevents judicial con-

trol and review of the relevancy and sufficiency of the evi-

dence. Garner v. Louisiana, 368 U.S. 157, 163-164 (1961);

Thompson v. Louisville, 362 U.S. 199, 206 (1960).

Section 2901.01, Ohio Revised Code, exemplifies both

vices of vague laws which the Due Process Clause prohibits.

First, although the offenses for which a person may be put

to death are clearly prescribed in the statute, the circum-

stances under which he may receive the death penalty

rather than the penalty of life imprisonment are not ex-

pressed. A capital defendant, therefore, is prevented from

knowing how to show that he qualifies for that class of

capital offenders for whom the law contemplates the lesser

penalty of life imprisonment. Secondly, the total absence

of standards in the administration of the death ‘penalty

deprives a defendant in a capital case of any way to protect

himself against an arbitrary imposition of that penalty.

The Ohio statute forces a capital defendant to become

an unwilling participant in a deadly guessing game. He can-

not know what facts or positions will save him or cost him

his life. The legislature has not disclosed to anyone when

the death penalty is to be imposed or when it is not to be

imposed. The jurors are free to take their own views of

the matter. With the views on capital punishment being

what they are in contemporary society, and with justifica-

tions for the death penalty being obscure matters of per-

sonal taste, the attitudes of the jurors will range wildly.

3®[bid., 447 P.2d at 138 (1968).

—

29

Their decision to kill the defendant may derive from any

reason, no reason, or twelve different reasons, and the de-

fendant is powerless to show that the jury may have abused

its discretion. By this procedure, a capital trial is reduced

to a gambling escapade in which the hazard of an incorrect

guess is death.

In Giaccio v. Pennsylvania, 382 U.S. 399 (1966), this

Court held that a standardless statute which authorized the

jury to assess costs against acquitted defendants, and which

imposed the threat of imprisonment for nonpayment of the

costs, violated the Due Process Clause. The following rea-

soning in Giaccio applies with equal force to Section

2901.01, Ohio Revised Code:

“It is established that a law fails to meet the require-

ments of the Due Process Clause if it is so vague

and standardless that it leaves the public uncertain

as to the conduct it prohibits or leaves judges and

jurors to decide without any legally fixed standards,

what is prohibited and what is not in each particu-

lar case... Certainly one of the basic purposes of

the Due Process Clause has always been to protect

a person against having the Government impose bur-

dens upon him except in accordance with the laws

of the land. Implicit in this constitutional safeguard

is the premise that the law must be one that carries

an understandable meaning with legal standards that

courts must enforce.” (Italics added)

The Giaccio decision turned squarely on the proposition

that the Due Process Clause forbade Pennsylvania to leave

“judges and jurors free to decide, without any legally fixed

standards,” 382 U.S. at 402-403,whether to impose upon

a defendant a small amount of costs. Ohio permits its

jurors the same standardless freedom in the infinitely more

significant matter of condemning men to death. The Giaccio

decision supports, if it does not compel, the conclusion

that the grant of discretion to capital juries in Ohio is an

unconstitutional practice because it provides no standards

by which an abuse of discretion can be curbed or even sub-

oe

30

jected to review. The power to decree death granted under

Section 2901.01, Ohio Revised Code, is broad, arbitrary,

absolute and untouchable.

The arbitrary procedure prevailing in Ohio offends not

only against the Due Process Clause but also against the

Equal Protection Clause. The “constitutional guaranties of

due process and equal protection both call for procedures

in criminal trials which allow no invidious discrimination

between persons and different groups of persons. Both

equal protection and due process emphasize the central aim

of our entire judicial system—all people charged with crime

must, so far as the law is concerned, ‘stand on an equality

before the bar of justice in every American court.’ ...”

Griffin v. Illinois, 351 U.S. 12, 17 (1956) quoting Cham-

bers v. Florida, 339 U.S. 227, 241 (1940).

The Equal Protection Clause prohibits the arbitrary selec-

tion of a ciass of individuals for the imposition of a special

burden. It requires as a minimum that classes created by

the legislature be rationally related to a legitimate govern-

mental purpose. Loving v. Virginia, 388 U.S. 1, 8-9 (1967),

particularly where “‘legislation . . . involves one of the basic

civil rights of man . . . , strict scrutiny of the classification

which a state makes . . . is essential, lest unwittingly or

otherwise, invidious discriminations are made against groups

or types of individuals in violation of the constitutional

guaranty of just and equal laws.” Skinner v. Oklahoma,

316 U.S. 535, 541 (1942).

In the Skinner case this Court struck down as a violation

of the Equal Protection Clause a statute which provided for

the sterilization of those guilty of embezzlement, holding

arbitrarily excluded those guilty of embezzlement, holding

that such legislation creates an “invidious discrimination.”

If Skinner means that a state cannot constitutionally dis-

tinguish between members of a certain class in the matter

of punishment to be imposed, then Ohio cannot give its

juries power to draw a distinction between those capital

defendants who receive the death penalty and those who

are sentenced to life imprisonment.

31

The “invidious discrimination” permitted by the Ohio

death penalty statute is clear. The distinction in Skinner

rested upon an arbitrary classification which, on its face,

permitted such discrimination, but the Ohio statute pro-

vides absolutely no basis for differentiation between con-

victed capital defendants.

It is this irrational differentiation permitted by standard-

less death-sentencing statutes which violates the Equal Pro-

tection provisions of the Fourteenth Amendment. As stated

in Justice Tobriner’s dissent in /n re Anderson, 69 Cal.2d

at __, 447 P.2d at 145-146 (1948):

“The procedure under (death sentencing statutes)

providing no classificatory criteria whatsoever per-

mits the trier of fact arbitrarily to determine whether

particular convicted capital defendants should suffer

death rather than life imprisonment. Such absence

of classification renders the current procedure insuf-

ficient to satisfy even the minimum requirement of

the equal protection clause that different treatment

of persons prima facie similarly situated must bear

some rational relation to a discernible legislative

purpose. In failing to provide any rational basis

upon which to justify an imposition of the death

penalty on those particular convicted capital defend-

ants sentenced to death rather than life imprison-

ment, (standardless death-sentencing statutes) make

‘as * * * invidious a discrimination’ against those

upon whom the trier of fact imposes the death

penalty ‘as if (they) had selected a particular race

or nationality for (that) oppressive treatment.” (Skin-

ner v. State of Oklahoma, 316 U.S. 535, 541) ‘It

is clearly unconstitutional to enable a public official

(let alone an ad hoc group of 12 individuals)37 to

* * * engage in invidious discrimination among per-

sons or groups * * * by use of a statute providing

persons a system of broad discretionary * * * power.’

(Cox v. State of Louisiana, 379 U.S. 536, 557 (1956)

...3 Yick Wo v. Hopkins, 118 U.S. 356, 366-368

"This insertion appears in the Anderson dissent. The italics

ughout appear in the original.

32

(1886) ...) Thus, the trier of fact’s absolute power

to impose the death penalty on a convicted capital

defendant violates the basic interdictment of the

equal protection clause that no person shall hold ‘a

naked and arbitrary’ power to make invidious dis-

criminations against another. (Yick Wo v. Hopkins,

118 U.S. at pp. 366-368 . . .)”

CONCLUSION

The unitary trial forced petitioner to elect between con-

stitutional guaranties: his right against self-incrimination

vis-a-vis his right to be heard on the issue of punishment.

Petitioner’s exercise of the Fifth Amendment Privilege was

unnecessarily penalized by the single-verdict procedure. His

punishment was determined, therefore, by a jury having

less than all of the relevant evidence on that issue, and

totally without instruction as to what standards should

guide its decision on whether he should live or die.

The unconstitutionality of the Ohio procedure is three-

fold: it violates the Self-Incrimination guaranty, the Due

Process Clause and the Equal Protection of the Law Clause.

The judgment below should be reversed and the cause re-

manded with directions to reconsider the issue of punish-

ment in light of this Court’s opinion.

Respectfully submitted,

JOHN J. CALLAHAN

801 Security Building

Toledo, Ohio 43604

Of Counsel:

Dan H. McCullough

William T. Burgess

William D. Driscoll

Gerald S. Lubitsky

Cary Rodman Cooper

September 4, 1970

33

APPENDIX

SENTENCING PROCEEDINGS

[R.438-440]

Thereupon, on November 15, 1967, the following pro-

ceedings were had:

The Court: This is Cause 44585, State of Ohio v. James

Edward Crampton, indicted on the charge of murder in the

first degree. On October 27th, through the 30th, this case

was tried to a jury and was submitted to the jury on Octo-

ber 30th and the jury in open court on October 30th at

6:15 P.M. in the presence of the defendant and his coun-

sel, returned a verdict finding defendant guilty of murder

in the first degree as charged in the indictment, with no

recommendation of mercy.

Motion for new trial was filed on November 2nd and it

is here for hearing.

(Thereupon the motion for new trial was argued to the

court, which was overruled by the court.)

The Court: We will now proceed to the matter of sen-

tencing. Mr. Crampton, you may stand up.

It is my duty to inform you in open court that on Octo-

ber 30, 1967, in your presence, the jury that was duly em-

paneled to try this case returned a verdict finding you

guilty of the offense of murder in the first degree with no

recommendation of mercy. Does Mr. Crampton or his

counsel have anything to say as to why judgment should

not now be pronounced?

Mr. Callahan: Defendant would like to make a state-

ment, Your Honor.

The Court: Very well.

34

Mr. Crampton: Please the Court, I don’t believe I re.

ceived a fair and impartial trial because the jury was preju-

diced by my past record and the fact that I had been a

drug addict, and I just believe I didn’t receive a fair and

impartial trial. That’s all I have to say.

The Court: The defendant having failed to show suffi-

cient cause as to why judgment should not now be pro-

nounced, we now come to the question of sentence.

Stand up, Mr. Crampton. It is most unpleasant for me

and I know equally unpleasant for you, but it is a duty I

have to perform under the statute. It is the sentence of

the Court that in accordance with Sec. 2901.01 Revised

Code, that I am now sentencing you to the death penalty.

It is the sentence of the court that within 30 days of today,

November 15, 1967, the Sheriff of Lucas County, Ohio

shall convey you in a private and secure manner to the

Ohio Penitentiary where you shall be received by the War-

den and safely kept there until the 13th day of March,

1936, when the death penalty will be executed in accord-

ance with Section 2949.22, Ohio Revised Code.

It is further the sentence of the Court that you pay the

costs of prosecution, including cost of assigned counsel and

providing of transcripts and execution is awarded therefor.

It is further ordered that the writ for the execution of

the death penalty as heretofore pronounced by the court

against you, shall be issued to the Sheriff of Lucas County

carrying that order into execution and the warden of said

Ohio Penitentiary shall make return of these proceedings

under and by virtue of said writ to the Clerk of this court,

who shall record said writ and the return thereof in the

records of this cause.

Anything further from counsel?

Mr. Callahan: Nothing further.

Mr. Resnick: Nothing further.

35

The Court: There is another thing I should do and that

is to tell you in open court that you have a right to appeal

this jury verdict, Mr. Crampton, and you have 30 days

from today to file a notice of appeal, and if the attorneys

assigned to you are satisfactory to you, I will reappoint

them for appeal.

Mr. Crampton: Your Honor, I would rather have Mr.

Callahan and Mr. Lubitsky because they know about the

case.

The Court: You are satisfied with their competency

to handle the appeal?

Mr. Crampton: Yes.

The Court: Very well, that will be done.