Respondents Brief — McGautha v. California

Supreme Court brief1971

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FILED

OCT 12 N

IN THE k. ROBERT SEAVER, CLERK

SUPREME COURT OF THE UNITED STATES ———

October Term 1970

No. 204

JAMES EDWARD CRAMPTON,

Petitioner,

—vs—

THE STATE OF OHIO,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Ohio

RESPONDENT’S BRIEF

HARRY FRIBERG,

Prosecuting Attorney

Lucas County, Ohio

MELVIN L. RESNICK,

Assistant Prosecuting Attorney

Lucas County, Ohio

ALICE L. ROBIE RESNICK,

Assistant Prosecuting Attorney

Lucas County, Ohio

JOHN F. HAYWARD,

Assistant Prosecuting Attorney

Lucas County, Ohio

Lucas County Court House

Toledo, Ohio 43624

(419) 248-5911

Attorneys for Respondent

The West Toledo Publishing Co., Inc.

—— — —— ee ee

(i)

TABLD OF CONTENTS"

(PINION BELOW

JURISDICTION

QUESTIONS PRESENTED

- STATEMENT

SUMMARY OF ARGUMENT

ARGUMENT:

L. THE OHIO STATUTE WHICH PROVIDES THAT

THE TRIER OF FACT SHALL DETERMINE

VERDICT IN CASES OF MURDER IN THE FIRST

DEGREE IS NOT VIOLATIVE OF PETITIONER'S

. TO BE FREE FROM SELF-INCRIMINA-

A. Applicable Ohio Statutory and Case Law Concern-

ing The Recommendation of Mercy By The

Trier of the Facts in a Capital Case

Il. THE DUE PROCESS AND EQUAL PROTECTION

CLAUSES OF THE FOURTEENTH AMENDMENT

CONCLUSION

(

TABLE OF AUTHORITIES

Ashbrook v. State, 49 Ohio’ App. 298, 197 NE. 214 (8) 1

Application of Rodriguez, 226 F. Supp. 799 ON. J. 880 n

Behrens v. United States, 312 F. 24 223 (7th Cr. 06)

Calloway v. United States, 00 F. 24 1006 1

(D.C. Cir. 1968) nnn —

Ae e wee. 8

Coleman v. ——— , Rice

(D.C. Cir. 1964) „

Couch v. United States, 235 F. 2d 510

DC. Cir. 1956) 1

Chatterton v. Dutton, 223 Ga. 243, 154 S. E.

22 213 (1967) wet

Duncan v. Louisiana, 391 U.S. 145 (1968) 3 %

Frady v. United States, 348 F. 2d 84

(D.C. Cir. 1964) n

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) 3, N. A

Green v. United States, 313 F. 2d 6 (ist Cir. 1968). 28,24

Hill v. United States, 368 U.S. 424 (1962) 22

Howell v. State, 102 Ohio St. 411, 131 N. E. .

706 (1921) 7, II. 12,4

In re Anderson, 69 Cal. 2d 613, 447 P. 2d 117 (1968) 4

In re Ernst Petition, 294 F. 2d 556 (3rd Cir. 1961) 2

(iii)

Jackson v. Denno, 378 US. 368 (1964) — . 19, 20

—— 488. 27

“eveny v. State, 109 Ohio St. 64, 141 N. E. 868 (182. 10

v. Thomas, 39 Ohio St. 377, 48 Am. Rep. 3

6 (1883) .

- Licavoli v. State, 20 0.0. 562; 34 NE. 2d 450 (1935)

Massa v. State, 37 Ohio App. 532, 175 N.E. 219 (1930) :

Maxwell v. Bishop, 398 US. 262 (1970)... 13

Michelson v. United States, 395 U.S. 469 (1948) 28

McGrady v. Cunningham, 296 F. 2d 600 (4th Cir. 1961) 24

liyers v. Frye, 401 F. 2d 18 (7th Cir. 1968) aoe

Oyler v. Boles, 368 U.S. 448 (1962).

Pope v. United States, 372 F. 2d 710 (8th Cir. 1967)

Salsby v. State, 119 Ohio St. 314, 164 N.E. 232 (1928).

Segura v. Patterson, 402 F. 2d 249

(10th Cir. 1968) 3, 15, 20, 47

Shelton v. State, 102 Ohio St. 376, 131 N. E. 733 (1921) II, 12

Skinner v. Oklahoma, 316 * 535 (1942) 3, 21, 33, 35

Specht v. Patterson, 386 US. 605 (1967) 21

Spencer v. Texas, 385 U.S. 554 (1987). 2, 3, 14, 17, 19, 20,

26, 28, 38, 39, 45

— ——— ——— — we

(iv)

Cases continued

ser SS. oe

State v. Caldwell, 18 Ohio St. 424,21 N-E.

20 58 (1999 F

State v. Chapman, 111 Ohio App. 441, 168 N.E.

2d 14 (1880

nne

430 (1943)

State v. Crafton, 15 Ohio App. 2d 160,

239 N.E. 2d 571 (1968)

State v. Crampton, 18 Ohio St. 182,

248 NE. 2d 614 (1969)...

State v. Ellis, 98 Ohio St. 390, 120 NE.

2d 218 (1918)

State v. Frohner, 150 Ohio St. 53,

80 NF. 2d 868 (1948),

State v. Hector, 19 Ohio St. 2d 167, 249 N.E.

20 912 (1969)

State v. Hickman, 162 Ohio App. 78, 141 NE.

20 202 (

State v. Lucas, 83 Ohio App. 281, 109 NE 39 (1952)

State v. Moore, 149 Ohio St. 228, 78 NE.

2d 365 (1948)

State v. Mount, 30 N.J. 195, 152 A. 2d 343 (1959)

Cases continued ot

State v. Murdock, 172 Obio St. 21, mE.

2d 56 (1961 ä — re

Akt W) e JI. 196 N.E. .

2d 801 8 * — 5

Trop v. Dulles, 356 U.S. 86 (1958) ——

United States v. Al Allegrucei, 20 F. 2d 811 de call ea

d Cir, 1962 — —3 ZB

— Behrens, 315 US. 162 (1960). 32

United States, ex rel Darrah v. Brierly, 20

F. Supp. 960 (E.D.Pa. 1968) 1

r — 358 F. 2d 904 ‘seh g

(2nd Cir. | : 27

United States ex rel Elksnis v. Gilligan, 256 ;

F. Supp. 244 (S.D.N.Y. 1966) |

United States v. Jackson, 390 U.S. 570 (1968) 19

United States v. Johnson, 315 F. 2d 714

(2nd Cir. 1963) 23

United States ex rel Thompson v. Price, 258

F. 2d 918 3rd Cir. (1958) 27

Williams v. Florida, 399 U.S. 78 (1970)... , 3, 4, 18, 19, 38, 45, 46

Williams v. New York, 337 U.S. 241 (1949) 2, 20, 21

Winston v. United States, 172 U.S. 510 (1899) „

Witherspoon v. United States, 391 U.S. 510 (1968).—., 4, 7, 38, 44,

: | 45, 46, 47

Yick Wo v. Hopkins, 118 U.S, 356 (1886). A. 35, 36

(vi)

Statutes:

Alaska Stat., §11.15.010; §11.15.020. eee

Conn. Gen. Stat., 888.10 nen ae —

Ga. Code Ann., §26-1101 „

Ge. Laws, No. 1333 (1970) ended ©

Towa Code Ann., $690.2. ana

Maine Rev. Stat. Ann., title 17, 62681

Mich. Comp. Laws, §750.316.

NV. Penal Laws, §1253.0 and §125.35..

Minn. Stat. Ann., 5609. 165 1

3 :

Ohio Constitution, Article m. Section 11.

93 Ohio Laws 223. aie

Ohio Revised Code, §2901.01

Ohio Revised Code, §2901.02

Ohio Revised Code, §2901.03.

Ohio Revised Code, §2901.04

Ohio Revised Code, §2901.27

Ohio Revised Code, §2901.28.

Ohio Revised Code, §2945.06.....

(vii)

Statutes continued e

Oni Bevised Code, 848.—.—.—.—.;— 0

Ohio Revised Code, $2945.56. 1 „

Ohio Revised Code, 8298.50 aes 9. 26

Ohio Revised Code, 32947. 5. — 2

Ohio Revised Code, 52947. 06. 25

Ohio Revised Code, §2951.02 = —

Ohio Revised Code, 82968.13 | 34

Ohio Revised Code, 8296514 3⁴

Oregon Rev. Stat., 5168. 010 45

Texas Code Crim. P. Ann., Art. 37.07 (2) (b) 42

West Va. Code, §61-2-2 45

Wisconsin Stat. Ann., §940.01 45

(viii)

Other Authorities

American Law Institute, Model Penal Cade. ae

Bedau, Death Penalty in America, 27 (rev. ed., 1967) 7

Black's Law Dictionary, 4th Ed ) ae |

Comment, The Death Penalty Cases, 56 Cal. L. Rev.

1288 (1968) 44

Elman, Of Law and Men, (1956) 1

Kalvin & Zeisel, The American Jury (1968) 1

State of Ohio, Commissioner of Corrections (1970) 4

United States Supreme Court Rules. 1

wedbster s New Twentieth Century Unabridged

Dictionary

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1970

No. 204

JAMES EDWARD CRAMPTON,

Petitioner,

—vs—

THE STATE OF OHIO,

Respondent.

On Writ of Certiorari to the Supreme Court

of the State of Ohio

RESPONDENT’S BRIEF

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

On June 11, 1969, judgment was entered by the Supreme

Court of Ohio (A. 82). On July 31, 1969, a petition for

Writ of Certiorari was filed and on June 1, 1970, it was

granted (A. 89), The jurisdiction of this Court rests upon

98 U.S. Code, Section 1257 (3). |

e QUESTIONS PRESENTED ..

1. Whether the Ohio statute which mich that the

trier of fact shall determine, ‘both guilt and punishment in a

single verdict in cases of murder i in the first degree violates

Petitioner’s right to be free from self-incrimination.

2. Whether the. Ohio statute which provides that the trier

of faet may grant or withhold a recommendation of merey

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

no standards or eriteria to assist the trier of faet in making

such determination, violates the Petitioner's right to Due

Process and Equal Protection of the law.

STATEMENT

The Brief of 1 Curiae United States contains an

adequate statement = facts es. to the Crampton

case. N

SUMMARY OF ARGUMENT

There is no constitutional requirement for a split-verdict

or ‘bifurcated trial’ where the trier of the fact détermines

both guilt and punishment [Spencer v. Texas, 385 U. S. 554

(1967)]. The petitioner was not-faced with a collision of

constitutional rights in the trial of his case because he

has no specific statutory or constitutional right ‘to offer

evidence of allocution ‘prior to a verdict which determines

guilt and punishment (Hill v. U. S., 368 U. S. 42⁴ (1962);

Williams v. NV. F., 337 U. S. 241 (1949) J. The petitioner's

Fourteenth Amendment right to be heard in the ease at bar

was unfettered. By his own choice, and for reasons best

known to himself, petitioner declined to take the witness

stand in his own defense. Instead, he presented his defense

of insanity, diminished responsibility and ‘mitigation

through other witnesses. That decision was a free choice

which petitioner made in his own interest and not as a

result of pressures imposed by the State [Williams v.

Florida, 399 U.S. 78 (1970) ; Sequra v. Patterson, 402 F. 2d

249 (1968)]. Petitioner’s claim of unfairness is not sup-

ported by the record in that the jury had all the relevant

evidence in this case and the mere fact that impeaching

evidence may have been introduced had.he taken the stand

would not, of itself, be violative of Due Process, [Spencer

v. Texas, 385 U. S. 554 at 565 (1967) ].

An analysis of the plain meaning of the Ohio statute

(52901.01 Ohio Revised Code) makes clear that the intent

of the Ohio Legislature was not to authorize arbitrary and

capricious executions, but to attempt to individualize pun-

ishment.

The attack on jury sentencing based on absence of stand-

ards undermines all discretionary punishment procedures,

up to and including the power of executive clemency, be-

cause Due Process requirements apply to all penological

systems. [Skinner v. Oklahoma, 316 U.S. 535 (1942)], and

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)], are no au-

thority for petitioner’s argument, as this Court has fre-

quently indicated that the concept of Due Process is not so

narrow as to exclude discretionary jury sentencing I With-

erspoow v. Illinois, 391 U. 8. 510 a . 0. Fon

ida, 399 U.S. 78 (1970) }. phi '

Ohio courts have restricted penalty juries: ‘to a coh⸗

sideration of the evidence in the case deciding whether to

recommend or withhold mercy [State v. Caldwell, 135 Ohio

St. 424, 21 N. E. 2d 343 (1939)], a standard“ which can

be readily evaluated by applicable Due Process criteria,

unlike the proposed standards of the Model Penal Code.

Even avowed opponents of capital punishment contend

that the imposition of standards is not the solution to

the problem [56 Cal. Law. Rev. 1268, 1270 (1968) ]. Those

who oppose capital punishment should pursue its elimina-

tion in the legislative arena, where some success has already

been achieved.

There is a fundamental inconsistency in an approach

which simultaneously assumes “irrational, arbitrary and

capricious” juries and ‘‘enlightened public opinion” which

no longer tolerates the imposition of the death penalty.

Petitioner therefore fails to show either Due Process or

Equal Protection violations under existing Ohio practice.

ARGUMENT

THE OHIO STATUTE WHICH PROVIDES

THAT THE TRIER OF FACT SHALL DE.

TERMINE BOTH GUILT AND PUNISH.

MENT IN A SINGLE VERDICT IN CASES

OF MURDER IN THE FIRST DEGREE IS

NOT VIOLATIVE OF PETITIONER’S

RIGHT TO BE FREE FROM SELF-INCRIM-

INATION.

5 0

A. Applicable Ohio Statutory and Case Law Concerning

The Recommendation of Mercy By The Trier of the Facts in

a Capital Case.

Murder in the First Degree under Ohio law is punishable

by death unless the court' or jury makes a recommendation

1, Ohio law provides for a waiver of jury trial in a capital case and

should an accused plead guilty, a bench trial is had to determine the

degree of the crime. Ohio Revised Code, Section 2945.06, provides

in part:

. If the accused is charged with an offense punish-

able with death, he shall be tried by a court to be composed

of three judges, consisting of the judge presiding at the

time in the trial of criminal cases and two other judges

to be designated by the presiding judge or chief justice of the

supreme court. Such judges or a majority of them may decide

all questions of fact and law arising upon the trial, and

render judgment 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 crime, and pronounce sentence accordingly. In rendering

judgment of conviction of an offense punishable by death

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

intervention of a jury, the court may extend mercy and te-

duce the punishment for sach offense to life imprisonment

in like manner as upon recommendation of mercy by a

of :mercy.? . Phe mandatory death sentence for Marder: in

the-First Degree. in Ohio was-ehanged in.1898-by: the. follow.

ing legislative addition to the penalty portion of the statute;

. unless the j jury trying the accused recom-

‘nods mercy; in which case the punishment

shall be imprisenment for life.“ 1

The brief filed by Amici contains an extensive review of

the Ohio cases pertaining to the issue of a mercy recom.

mendation.* With two exceptions, we concur in that review

Obio Revised Code, Section 2901.01:

“No person shall purposly, and either of deliberate and

premeditated malice, or by means of poison, or in perpetra-

ting or attempting to perpetrate 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 unless the jury

trying the accused recommends mercy, in which case the

shall be imprisonment for life.

Murder in the first degree is a capital crime under

Sections 9 and 10 of Article 1, Ohio Constitution.”

3. 93 Ohio Laws 223 (1898). Ohio has five other statutes conferring

capital sentencing discretion to a jury and has two 2 criminal

statutes conferring that same power.

4. Brief of Amici, pp. 21 to 26 and footnotes 31 through 41. Herein-

after Amici Curiae NAACP Legal Defense and Educational Fund,

Inc., and the National Office fot the Rights of the Indigent will be

referred to as Amici.

5. It is submitted that the law of Ohio as evinced by the decisions

of the Supreme Court of Ohio is that the granting or withholding of

a mercy recommendation: is within the absolute discretion of the jun,

but to be based upon the evidence in the case.

The conclusion of Amici that a jury must make an alfa:

—— 9

finding in order to grant mercy and none to withhold mercy is merely

an assumption (See Amici Brief, page 22, footnote 34). The assump-

_ tion is based upon a superfluous statement by the writer of the opinion

in Massa v. State, 175 N.E. 219 (1930). The court, by way of obiter

stated that the death penalty was warranted in view of the evidence in

the case; that he found nothing in the record to support a recom-

mendation of mercy. The case was not on review as to the basis upon

_ which the jury determined the penalty and, as a matter of law, could not

de. (See cases cited by Amici at page 27 of their brief) If the granting

or withholding of mercy cannot be reviewed in Ohio, can it fairly

be said that Ohio law, in effect, requires an affirmative evidentiary

ground to grant mercy and none to withhold it? We submit that it

could just as well be said that withholding mercy requires an affirmative

evidentiary ground.

Amici next state (pages 22-23, footnote 35) that the State of Ohio

excludes scrupled jurors from capital cases. Apparently the contention

is based upon the statement found in the case of Howell v. State, 102

OS. 411, 131 N.E. 706 (1921), wherein the court cautioned that any

decision on penalty should be based on evidence ot lack thereof and

not on any scruples or facts which may have come to their knowledge

while not acting as a juror. (See direct quote in Amici’s Brief, page

22-23) Ohio law in regard to exclusion of jurors in a capital case

is stated in Ohio Revised Code, Section 2945.25 (C):

“A person called as a juror on an indictment may be

challenged for the following causes:

preclude him from finding the accused guilty of an offense

punishable with death. . .”

This statute was in effect at the time of Howell and is still in effect.

This type of exclusion was differentiated in Witherspoon v. Illinois,

391 US. 510 (1968), and cannot be interpreted as excluding people

who have scruples against capital punishment.

and will not duplicate the matter in this brief.

Ohio law provides for the introduction of character eri.

dence by a defendant.* He may parade any number of such

witnesses to show his reputation and background. The

State may not introduce any evidence in regard to the char.

acter of a defendant until and unless the defendant tries to

establish his good character.) However, the State may in

its case in chief introduce evidence of any acts of the de.

fendant which, if material, tend to show motive, intent, ab

6 Obio Revised Code, Section 2945.57:

“The number of witnesses who are expected to testify

upon the subject of character or reputation, for whom

subpoenas are issued, shall be designated upon the praccipe

and, except in cases, of murder in the first and second

degree, manslaughter, rape, assault with intent to commit

rape, or selling intoxicating liquor to a person in the habit

of becoming intoxicated, shall not exceed ten upon each side,

unless a deposit of at least one per diem and mileage fee for

each of such additional witnesses is first made with the

clerk of the court of common pleas. . .”

1. Obio Revised Code, Section 2945.56:

“When the defendant offers evidence of his character

or ion, the prosecution may offer, in rebuttal thereof,

proof of his previous conviction of a crime involving moral

turpitude, in addition to other competent evidence.”

sence of mistake or accident on his part.“ The latter type of

evidence must be accompanied by a limiting instruction to

the jury as to the purpose of the evidence.“ Case law in

Qhio has restricted the introduction of this type of testi-

mony in respect to the time, locality and character of the

act and, in addition, the act must fall within the designation

of crimen falsi of the common law.’ The credibility of the

Obio Revised Code, Section 2945.59:

“In any criminal case in which the defendant's motive or

intent, the absence of mistake or accident on his part, or the

defendant's scheme, plan, or system in doing an act is mate-

rial, any acts of the defendant which tend to show his motive

or intent, the absence of mistake or accident on his part, or

the defendant's scheme, plan or system in doing the act in

question may be proved, whether they are contemporaneous

with or prior or subsequent thereto, notwithstanding that

such proof may show or tend to show the commission of

another crime by the defendant.”

% State v. Crafton, 15 Ohio App. 2d 160, 239 N. E. 2d 571 (1968),

reversible error for failure of the trial court to charge on limited

purposes of the testimony even though no request to charge was made.

State v. Hickman, 102 Ohio App. 78, 141 N.E. 2d 202 (1956), the

acts must be so related to the offense charged, in character and point

of time, as tend to show intent, motive, habit or state of mind, pro-

vided acts come within designation of crimen falsi of the common law;

See also State v. Cocco, 73 Ohio App. 182, 55 N. E. 2d 430 (1943) ;

within a reasonable period of time in the same locality.

The Ohio cases reveal that this type of evidence is very limited.

See State v. Moore, 149 O.S. 226, 78 N. E. 2d 365 (1948), threats

by defendant against a third person prior to killing; State v. Strong,

119 Ohio App. 31, 196 N.E. 2d 801 (1963), boasts made by de-

fendant to third persons of having committed offenses of arson and

sex deviation not adinissable in murder case; State v. Chapman, 111

testimony of the defendant or of any witness may be im.

peached by showing prior convictions of erime.

Ohio App. 441, 168 N. E. 2d 14 (1959), evidence of prior sex re

lations with victim's sister eight years prior to crime charged not

admissible in rape and incest violation.

11, Obio Revised Code, Section 2945.42:

“No person is disqualified as a witness in a criminal

prosecution by reason of his interest in the event thereof

as a party or otherwise, or by reason of his conviction for

crime. . .Such interest, conviction, or relationship may be

shown for the purpose of affecting the credibility of such

witness. . .”

This statute permits examination as to convictions of a witness for

an offense under state laws. State v. Murdock, 172 O.S. 221, 174 NE

2d 543 (1961). It does not include convictions under city ordi-

nances. Coble v. State, 31 O.S. 100 (1876).

Petitioner at page 11 of his brief, footnote 14, has cited the case

of State v. Hector, 19 O.S. 2d 167, 249 N.E. 2d 912 (1969) for the

proposition that a defendant can be cross examined as to pending

indictments. The case cited does not stand for that proposition what-

soever. The case involved a witness for the State where the defense

desired to show that by testifying for the State, the witness was in

hope of leniency on his own charges. In this regard the statement

in Keveny v. State, 109 O. S. 64, 141 N. E. 845 (1923) states the

law:

“Of course you cannot impeach a witness by merely showing

an indictment, but you may affect his interest in his present

testimony. . .”

The rule as to showing interest by pending indictment would never

be applicable to a. defendant, and we suggest that any attempt to

do so would be misconduct, grounds for mistrial, and reversible

error.

Counsel for petitioner has urged this Court that mitiga-

tion and background evidence of the aecused is totally inad-

missible in a capital case in Ohio.“? We cannot agree with

such statement in view of the opinion of the Ohio Supreme

Court in this very case.'* We quote from that opinion which

appears at page 86-87 of the Appendix of this case:

“Defendant argues that, if an accused elects

to assert his right against self-incrimination,

he can not present any evidence which would

tend to mitigate on the question of his punish-

ment.

“This is obviously not true. Defendant can,

as he did in the instant case, present such

testimony by witnesses other than himself.”

(Emphasis Ours)

Petitioner’s reliance upon Ashbrook v. State, 49 Ohio App.

298, 197 N. E. 214 (1935) and State v. Ellis, 98 O. S. 21, 120

N. E. 218 (1918) is questionable, to say the least, in view of

the holdings in Shelton v State, 102 O. S. 376, 131 N. E. 704

(1921) and Howell v. State, 102 O.S. 411, 131 N.E. 706

12. Petitioner's Brief, page 21.

. State of Ohio v. James Crampton, 18 O.S. 2d 182, 248 N. E. 2d 614

(1969).

(1921). Further, in State v. Caldwell, 135 O. S. 424 at 428,

21 N. E. 2d 343 (1939) cited by petitioner at page 21, foot.

note 24, of his brief, it should be specifically noted that the

court’s reason for finding no prejudicial error in not-giving

the charge requested relating to the jury’s consideration of

sociological matters and environment which they may find

from the evidence, was that the requested instruction was

substantially identical to the answers the Court gave the

jury. In addition, the mere instruction presupposes that

sociological and environmental matters were in evidence

in the case. At page 428 of the opinion, the Court stated:

‘Clearly, the question was not directed to

the evidence of the environment of the defend-

ant as contained in the record.”

14. Shelton v. State, 102 O.S. 376, 131 N.E. 733, (1921)

“Syl. 1. It is the privilege of an accused upon trial to

argue to the jury in person or by counsel every controlling

fact which the evidence tends to support, and every reason-

able inference therefrom touching the question of his guilt

or innocence, or which may tend to mitigate or lessen the

penalty, where the jury are empowered to fix such penalty.

“Syl. 2. Upon trial, under an indictment for murder in the

first degree, a refusal to permit the accused in person or by

counsel to argue to the jury the desirability, advisability or

wisdom of recommending mercy, is a denial of the right of

the accused to ‘defend in person and with counsel’ under

Section 10, Article I of the Constitution of the State of

Ohio.”

Howell v. State, 102 O. S. 411, 131 N. E. 706, (1921)

“Syl. 4. In such a case, it is not error for the trial court

to permit counsel for the state to argue that a recommen-

dation for mercy should be withheld.”

See also State v Frohmer, 150 O. S. 53, 95, 80 N. E. 2d 868

(1948), wherein the appellant’s entire case was pointed to-

ward an extension of mercy.’®

B. The Unitary Trial Procedure In A Capital Case Where

The Trier of The Facts Determines Both Guilt and Punish-

ment is Fundamentally Fair Under the Due Process Clause

And Does Not Violate An Accused’s Fifth Amendment Pro-

tection Against Self-Incrimination.

The attack by the petitioner and amici'*, on the unitary

trial procedure has been on two fronts: one, that the pro-

cedure is fundamentally unfair’ in that (a) if an accused

takes the stand, evidence may be presented which is prej-

udicial to the guilt issue, and (b) if an accused does not

6. State v. Frohner, 150 O. S. 53, 80 N. E. 2d 868 (1948) wherein the

court also stated at page 117:

“All that was sought in this case below was an extension of

mercy. In an effort to sustain such request the family life

of appellant's parents was gone into.

In State v. Lucas, 93 Ohio App. 281 at 288; 109 N.E. 39 (1952)

where twelve witnesses testified as to reputation and character the

court stated:

“Undoubtedly this testimony was presented for the purpose

ol influencing the judges in favor of an extension of mercy.”

16. Brief of Amici, pp. 72 through 74; brief of n pp. 9 through

19.

n. Amici’s brief, Appendix A, page 69. But see argument of Anthony

Amsterdam in Maxwell v. Bishop, 398 U.S. 262 (1970) in 7 Criminal

Law Reporter 4039 (5-13-70). On the single verdict issue, I want to

make perfectly clear that we are not relying on any general unarticu-

lated standard of ‘fairness’. We are relying on specific constitutional

rights.”

take the stand he may be sentenced on less than all of the

relevant evidence; and two, that a capital defendant’s Fifth

Amendment protection against self-incrimination is violated

if he exercises his ‘‘constitutional” right to allocution be.

fore verdict on the guilt issue. 1 It is to be noted that nei.

ther petitioner nor amici maintain that the State is constitp.

tionally compelled to have a bifurcated trial in a capital

case.

This Court in Spencer v Texas, 385 U. S. 554, 567 (1967),

specifically rejected the bifurcated trial as being a constitu-

tional commandment under the Fourteenth Amendemnt, and

expressed the view that such a matter was legislative anda

determination which, if made by the Court, would be an un-

justifiable encroachment upon the powers of the State.

Not being constitutionally compelled to have a bifurcated

trial, does the unitary trial unconstitutionally burden the ex-

ercise of an accused’s Fifth Amendment privilege against

self-incrimination, and further, does the procedure under

which a capital case is tried in Ohio run afoul of the Due

Process requirements of the Fourteenth Amendment to the

United States Constitution?

The petitioner in the instant case elected not to take the

stand and be subject to cros:-examination. The record re-

veals that petitioner instead presented four witnesses, none

16. Id. at page 76, footnote 77:

“The effect of the single verdict sentencing procedure

which he challenges is to confront a capital defendant with

the grim specter of having to sacrifice one or another of his

precious constitutional rights, either allocution or self-

incrimination.”

19. Id. at page 78, footnote 79.

of whom testifiéd in respect to the facts of the crime (R. 278

et seg). Guilt in this case was never seriously contested and,

consequently, the petitioner’s case Was. largely medical in

nature. The petitioner's mother testified and gave the jury

the benefit of the petitioner’ s childhood and general back-

ground. (A. 49-59). . The medical testimony, because of its

psychiatric nature, brought out the petitioner’s entire per-

sonality; and because the petitioner felt inclined to intro-

duce various hospital reports, his entire life history was dis-

played to the jury. We can only assume that this was done

in an effort to mitigate the penalty since there was nothing

contained in the records which support a conclusion that

petitioner was not guilty by reason of insanity. Thus, all

that could be said of petitioner’s life was before the jury

without the necessity of his having had to take the stand.

Petitioner and amici urge that this type of situation ag-

gravates the ‘tension’ as to his constitutional right to remain

silent and his desire to produce mitigating testimony. We

submit that defendant can introduce such evidence by other

witnesses, and that, nevertheless, the unitary trial is not *

its nature unconstitutionally coercive.. :

The arguments in this regard are very well stated in

degura v. Patterson, 402 F. 2d 249 (10th Cir., 1968), wherein

there . a

8 “One answer to this contention is that miti-

gating evidence could ‘be introduced through

other witnesses; Nevertheless, it is quite con-

oeivable as indeed it was shown below, that the

„accused may be the only available source of

‘material mitigating information. Therefore,

there is a strong compulsion to take the stand.

This compulsion does not derive from un co-

etrcion of the State. Instead, it arises from the

desire of the accused to act in his own en-

lightened self-interest. He is. compelled, to

testify only.in the sense that it may. be to his

advantage to do so. The choice is his embrae- 2

ing no more substantial chilling effects’ in a

single verdict situation than it does in any

other instance. It is always the case that in

exercising the constitutional right to remain

silent, the individual is forced to forego his op-

portunity to personally appeal to the jury.

Whether such an appeal relates to the deter-

mination of guilt or punishment or both, it can- .

not be denied that the inducement not to re-

main silent and thus to forego a specific con-

stitutional right does not arise from any un-

necessary burden imposed by the State. We

conclude that the single-verdict procedure

does not ‘needlessly chill the exercise of basic

constitutional rights’. (Emphasis Ours)

A defendant during a criminal trial is often faced with à

similar choice in regard to the issues of self-defense, acci-

dent, duress, insanity, lesser included offenses, and alibi.

Petitioner and amici might also argue that these issues re-

quire separation on the constitutional claim that a defend

ant has a Sixth Amendment right to present his defense, but

that to do so would impinge his Fifth Amendment right to

remain silent. To carry this to its extreme could i in some

cases involve a four-stage trial, and we can see no reason

why such a ruling would not be applicable to all criminal

trials where more than one issue may be involved.“ The ef-

fect of such a procedure on the administration of criminal

justice would be devastating. It would be an affront to the

jury system and an insult to the intelligence of the people

of the United States. They are the persons who share in

the responsibility of the administration of criminal justice

by the giving of their time and energy to serve as jurors and

decide different issues under proper instructions by a

court.. The court in Spencer v. Texas, supra, at 565 stated:

„It would be extravagant in the extreme to

take Jackson as envincing a general distrust

on the part of this court of the abilities of

juries to approach their task responsibly

and to sort out discrete issues given to them

under proper instructions by the judge in a

criminal case, or as standing for the propo-

sition that limiting instructions can never

purge the erroneous introduction of evidence

or limit evidence to its rightful purpose.“

and as noted by the Court in its footnote to this premise:

Indeed the most recent scholarly study of

jury behavior does not sustain the premise

that juries are especially prone to prejudice

when prior crime evidence is admitted as to

‘ credibility. Kalven and Zeisel, The American

Jury (1966), the study contrasts the effect of

such evidence on judges and juries, and con-

cludes that ‘Neither the one nor the other can

2... Petitioner in the case at bar has injected an additional issue which is

beyond the limitations of the writ granted herein. Inasmuch as the

insanity issue was not within the issues designated in the granting of

* ‘certiorari, we have declined to comment in that regard. (Rules of the

‘” Supreme Court 40 (i) (d) (2).

18 ;

“be seid to be distinctively gillible or skeptical.’ 55

Id. at 180.’ vel a he

— 2

The late Justien Felix Frankfurter in his b to

Royal Commission on Capital Punishment stated:

. May 1 say, with all reapect, I do not under:.

_. stand the view that juries are not qualified to

discriminate between situations. calling for

mitigated sentenges.“ :

This Court has recently . the question ot ‘com.

pelled’ incrimination in the case of Williams v. Florida, 399

U. S. 78 (1970) wherein it was stated by Justice White that:

„The defendant in a criminal trial is fre-

quently forced to testify himself and to call

other witnesses in an effort to reduce the risk

of conviction.:. .. That the defendant faces such

a dilemma demanding a choice between com-

plete silence and presenting a defense has

never been thought an invasion of the privil-

ege against compelled self-incrimination.”

That case dealt with notice of alibi, but the principle re-

mains the same. Justice White’s further comment that

there is nothing in the Fifth Amendment which would en-

title a defendant to await the jury’s verdict on the State’s

case-in-chief before deciding whether or not to take the

stand is particularly applicable to the procedure requested

by petitioner and amici. There have been no added pres-

sures brought to bear on the defendant, and the State has

not added to the natural consequences of the trial. He is

simply left the choice of testifying in an effort to either

escape conviction or reduce the effect thereof, or not testi-

fying because he feels he stands a better chance remaining

21. Elman, Of Law and Men (1956)

silent. The benefit is with the defendant in that he can

make that choice with full knowledge of the possible bene-

fits or detriments to him. As Justice Black stated i in his dis-

sent 25 25 Williams case, supra,

. and obviously there will be times hen the

trial process itself will require the defendant to

do something i in dude to try to Wen a con-

viction.” —

The petitioner and amici have particularly stressed the

case of U. S. v. Jackson, 390 U. S. 570 (1968) as supporting

their contention that the unitary trial imposes a needless

burden which ‘‘chills” the exercise of basic constitutional

rights. We believe the principles of the Jackson case to be

clearly distinguishable from the issues in the case at bar.

First, Jackson dealt with specific constitutional rights: the

Fifth Amendment right not to plead guilty and the Sixth

Amendment right to demand a jury trial. As will be shown

later in this brief, allocution is not a specific constitutional

right. Second, the petitioner, in the case at bar, was not

subject to a different penalty depending on his choice of a

jury or court trial or in his choice of taking the stand or

not.” There was, therefore, no extra burden imposed by the

State. The choice was that of the petitioner, and it must be

assumed that he made the choice which he knew was most

favorable to himself. It cannot therefore be said that the

unitary trial “needlessly encourages” the waiver of the

right to remain silent.

Petitioner next places reliance on Jackson v. Denno, 378

U. S. 368 (1964). Again, as noted in Spencer v. Texas,

1. See Calloway v. U. S., 399 F. 2d 1006 at 1009 n. 4 (CADC) cert.

denied 393 U.S. 987 (1968) (U.S: „ Jackson distinguished).

—

supra, the Court i in Jackson v. Denno, supra, was dealing

with specific constitutional rights and the procedure set

forth therein was designed as a specific remedy to insure

that an involuntary confession was not, in fact, relied on by

a jury, 385 U. S. at 565. Amici’s premise that Jackson v.

Denno, supra, is not weakened by Spencer v. Texas, supra,

is erroneously based on an alleged ‘specific constitutional

right’ to allocution.

This Court in Hill v. U. S., 368 U. S. 424, 428, (1962), held

that allocution is not a constitutional right.? In Williams v.

N. F., 337 U. S. 241 (1949), this Court held that the Due

Process clause of the Fourteenth Amendment did not re-

quire a judge to have hearings and give a convicted person

an opportunity to participate in those hearings when he

came to determining the sentence to be imposed. As stated

in Sequra v. Patterson, supra,

23, Hill v. U.S., 368 U.S. 424, 428 (1962)

“The failure of a trial court to ask a defendant represent-

ed by an attorney whether he has anything to say before

sentence is imposed is not of itself an error of the character

or magnitude cognizable under a writ of habeas corpus. .

is an error which is neither jurisdictional nor constitutional.

It is not a fundamental defect which inherently results

in a complete miscarriage of justice, nor an omission incon-

sistent with the rudimentary demands of fair procedure.”

(Emphasis ours)

Although the Hill decision was based on a non-capital case, the con-

stitutional question involved is the same. See Myers v. Frye, 401 F. 2d

18, 21, (7th Cir. T0

lowed.

21.

“Tf a — need not allow allocution as a

constitutional right when determining the

penalty, it follows that there is ‘likewise no

such right to so influence a jury.”

The cases of Skinner v. Oklahoma, 316 U. S. 535 (1942)

and Specht v. Patterson, 386 U. S. 605 (1967) do not sup-

port petitioner or amici’s statement that allocution is a con-

stitutional right.“ The Specht case cited by petitioner and

amici adhered to the decision of Williams v. N. Y., swpra.

However, the court could not extend the Williams v. N. T.,

doctrine to a Colorado habitual sex offender procedure

which did not make the commission of a specified crime the

basis for sentencing. The question, as noted by the court,

was similar to the recidivist cases where a distinct issue was

presented and naturally defendant must have a full oppor-

tunity to be heard, etc. Thus, no comparison can be used by

petitioner insofar as the rationale of the Specht case is con-

cerned. The petitioner in the instant case had an oppor-

tunity to be heard, etc. Moreover, the petitioner was free

to place in evidence mitigating and background evidence,

which he did through his mother. Psychiatric evidence was

introduced going toward diminished responsibility and in-

sanity. :

The Skinner case, supra, was decided on an equal pro-

tection basis and not on his opportunity to be heard. There,

as in the case of Fick Wo v. Hopkins, 118 U. S. 356 (1886),

there was an invidious discrimination. As will be shown in

our Standards“ argument, no invidious discrimination can

be shown in a unitary trial procedure.

Consideration of what is stated by the Court in Williams

v. N. F., supra, 251-2:

1 Brief of Amici, page A-71 and footnote 77 at page A. 73-76

‘*-

. And it is conceded that no federal consti-

tutional objection would have been possible if

the judge here had sentenced appellant to

death because appellant’s trial manner im-

pressed the judge that appellant was a bad risk

for society, or if the judge had sentenced him

to death giving no reason at all.”

implies that allocution is not a specific constitutional right.

If a judge may sentence a man for no reason at all, al.

locution cannot be said to have constitutional status.

Under Ohio practice, no special procedure has been en-

acted for allocution in a capital case, other than by the de.

fendant’s opportunity to testify or to have other witnesses

testify at the trial itself. There is nothing in Ohio compar.

able to the Federal sentencing procedure under rule 32 (a)

of the Federal Code of Criminal Procedure which specifi-

cally provides for the court to consider evidence in miti-

gation. In view of this, the cases cited by amici and peti-

tioner concerning procedural Due Process do not apply. An

example is the case of Coleman v. U.S., 334 F. 2d 558

(D. C. Cir. 1964), where, after the District of Columbia

mandatory death penalty statute was amended to pro-

vide for recommendations of life imprisonment, a statute

was enacted to establish a procedure for reduction of

sentence. As stated at page 562 in that opinion:

‘‘Whereas in cases charging murder in the

first degree after March 22, 1962, a jury was

authorized to recommend life imprisonment, as

to appellant’s case a ‘procedure’ was estab-

lished whereby the judge was ‘to consider the

circumstances in mitigation and in aggrava-

tion.” .(Emphasis.Ours). „

— — 7

In such a situation, as in a split-verdict procedure, allo-

cution has specifically been provided for by statute and

procedural Due Process would then require a fair deter-

mination of the issues involved. In this sense only would

allocution as part of the sentencing process be subject to the

scrutiny of Due Process.The statement of amici at page 71,

footnote 75, that allocution is a constitutional right is not

supported by the decisions cited in that footnote. See Green

v. L. S., 313 F. 2d 6 (Ist Cir. 1963); U.S. v Johnson, 315 F.

2d 714 (2nd Cir. 1963); and Behrens v. U. S., 312 F. 2d 223

(7th Cir, 1962), affirmed 375 U.S. 162 (1962). Those de-

cisions were based in two instances on rule 32 (a) of Federal

Rules of Criminal Procedure and in the other case on rule

3 requiring presence of defendant and counsel. In each

ease, the procedure giving the opportunity for allocution

was in some way erroneously conducted. But there is

nothing in those opinions which can be interpreted as hold-

ing allocution in and of itself to be a constitutional right.”

. See U.S. ex rel Darrah v. Brierly, 290 F. Supp. 960 (1968) at 963

where it is stated:

“However, there is no constitutional right to allocution. McGrady v.

Cunningham, 296 F. 2d 600, 96 A. L. R. 2d 1286 (4th Cir. 1961); Appli-

cation of Rodriquez, 226 F. Supp. 799 (D. N. J. 1964) ; United States ex

rel, Elksnis v. Gilligan, 256 F. Supp. 244 (S. D. N. V. 1966). Although

allocution is afforded a defendant as of right in all Federal Criminal pro-

ceedings, F. R. Crim. Proc. 32 (a.); United States v. Allegrucci, 299 F. 2d

811 (3rd Cir. 1962), the basis therefor does not rest upon constitutional

grounds. Indeed, the Supreme Court of the United States has expressly

indicated its reluctance to base the Federal right embodied in Federal Crim-

inal Rule 32 upon the Constitution. |

12] Instead, it merely observed that this right is ancient in the law.”

United States v. Bebrens, 375 U.S. 162, 165, 84 8. Ct. 295, 11 L. Ed. 2d 224

Although Ohio has a mandatory statute requiring the court

to inquire of the defendant whether he has anything to say

before sentence is pronounced“, the practice, because af the

unreviewability of the death sentence, is a mere formality in

capital cases and the two non-capital cases in Ohio where

(1963). .

“See also McGrady v. Cunningham, 296 F. 2d 600 (1961). A state

court conviction of murder in the first degree where no allocution was had.

The Court stated at page 602,

“The only two cases cited on this point are federal cases, Couch v. US,

98 U.S. App. D. C. 292, 235 F. 2d 519, and Green v. U.S., 365 U.S. 301,

81 S. Ct. 653, 5 L. Ed. 2d 670. Both of these cases arose under rule 32

(a) F. R. Cr. P., 18 U. S. C. A., which provides, insofar as material, as

follows:

‘Before imposing sentence the court shall afford the de-

fendant an opportunity to make a statement in his own be-

half and to present any information in mitigation of pun-

ishment.

“There is no similar rule applicable by statute or rule of court in Virginia

and apparently it has never been suggested before that there is any such

rule in Virginia

We conclude therefore that there is no merit in the appellant's con-

tention on this point and we may further remark in passing that even under

the federal rule failure to grant the right of allocution directly to the

prisoner rather than to counsel for the prisoner would not entitle the

prisoner to a new trial. The only effect would be to set aside the sen-

tence and send the case back for resentencing after compliance with the

tule. See Couch v. U. S., supra, and Green v. U. S., supra. And this

is also the rule in the states that still require allocution.”

26. Ohio Revised Code, Section 2947.05: .

“Before sentence is pronounced, the defendant must be

informed by the court of the verdict of the jury, or the find -

ing of the court, and asked whether he has anything to say

as to why judgment should-not be pronounced against him.”

—

a jury fixes the punishment. It is to be noted also that the

Ohio statute is far short of Federal Rule 32 (a) which er

of evidence in mitigation. 8

In most non-capital cases, the 4 can, silage being

convicted, be referred to a probation department for a pre-

sentence investigation and report.“ If the court refuses a

referral to the probation department, the defendant can

still invoke Ohio Revised Code, Section 2947. 06 to hear

testimony to mitigate the sentence.

n. Obio Revised Code, Section 2951.02:

“Where the defendant has pleaded guilty, or has been

found guilty and it appears to the satisfaction of the judge

or magistrate that the character of the defendant and the

circumstances of the case are such that he is not likely again

to engage in an offensive course of conduct, and the public

good does not demand or require that he be immediately

sentenced, such judge or magistrate may suspend the im-

position of the sentence and place the defendant on pro-

bation upon such terms as such judge or magistrate deter-

mines.”

. Obi Revised Code, Section 2947.06:

“The trial court may hear testimony of mitigation of a sen-

tence at the 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 immedi-

ately to be imposed or the defendant placed on probation.

The court of its own motion may direct the department of

probation of the county wherein the defendant resides, or its

own regular probation officer, to make such inquiries and

reports as the court requires concerning the defendant, and

such reports shall be confidential and need not be furnished

ee ee ae ä

unless the court, in its discretion, so orders

In capital cases, inasmuch as the sentence of life or death

is unreviewable either by the trial court or appellate court,

the statute means nothing insofar as mitigation is con-

cerned, and the only effect of error in this regard is to

send the case back for resentencing.“ .

We earnestly submit that the arguments advanced here in

support of bifurcation in the trial of a capital case are less

compelling than the same arguments raised concerning the

recidivist trial procedure in Spencer v. Texas, supra. In

Spencer, the defendant’s prior convictions were in evidence,

whether or not he testified. In the case at bar, however,

petitioner’s prior convictions could come to the knowledge

of the jury without his.approval*®® only in two ways: (1)

through cross-examination had he chosen to testify, and/or

(2) through evidence of his prior convictions introduced

pursuant to Section 2945.59, Ohio Revised Code.* As the

record discloses, the State did not offer such evidence in

this case for the reason that the prior acts would not have

gone to the matters mentioned in the statute. Remoteness

would have been an additional limiting factor.“ It therefore

appears that even the dissenters in Spencer, under the facts

presented in this case, would agree that petitioner’s con-

stitutional rights have not been violated.

An exhaustive review of the cases in this matter dis-

closes that the split verdict procedure may, in some ways,

29. See Salsby v. State, 119 O. S. 314, 164 N. E. 232 (1928) ; State ».

Ausberry, 83 Ohio App. 514, 82 N. E. 2d 751 (1947)

20. It should be remembered that petitioner himself introduced his te-

cividist record by offering various hospital records.

31. See footnote 8, supra.

32. See footnote 10, supra.

be a more modern method of resolving the determination

of guilt or innocence and punishment. However, none of

the cases have held the single verdict: procedure. unconsti-

‘tational. Some of the courts have actively suggested in

their opinions that their legislatures enact statutes re-

quiring bifurcated trials.** Some courts have merely. stated

the proposition that this is not a judicial question. bat a

legislative one.“

We would urge, as was . in Frady v. U. 8. 348

F. 2d 84 (D. C. Cir. 1964) ; Pope v. U.S., 372 F. 2d 710, (8th

Cir. 1967); and U.S. v. Curry, 358 F. 2d 904, 914-915 (2nd

Cir. 1966) that because of the inherent problems in the

adoption of such a procedure, the question is best left with

the respective legislatures of the States. Only through com-

prehensive studies of the individual procedural and sub-

stantive laws of the respective states could such a *

ure be put into effeet without chaos.

As stated by Mr. Justice Cardozo in Snyder v. 8

setts, 291 U. S. 97, 105 (1934), and repeated often by the

court, a state rule of law

does not run foul of the Fourteenth Amend-

ment because another method may seem to our

thinking to be fairer or wiser or to give a surer

promise of protection to the prisoner at

bar. 99

The Court has additionally stated that it was not a ule-

making organ for the promulgation of state rules of crimi-

*. State v. Mount, 152 A. 2d 343 (1959), 30 N. J. 195 (legislation

subsequently enacted) .

‘U.S. ex rel, Thompson v. Price, 258 F. 2d 918, 922 (3rd Cir. 3

(Legislation in Pennsylvania subsequently enacted). .

Johnson v. Commonwealth, 158 S. E. 2d 725.

eee ane U. * = 564

(1967). 2 2 2 ;

The. trial i in the instant case was fundamentally fair,

Neither impeachment evidence nor. prior. convictions of

crime-were introduced by the State in the instant case. Had

the same been introduced the court under Ohio law would

have given the jury instructions concerning the limited pur-

pose of such evidence. The petitioner was able to intro-

duce background evidence and could have, if he so desired,

introduced character testimony. Petitioner’s and amici’s

objection to the unitary trial because of the possible infus-

ion of prejudicial evidence concerning these latter issues is

effectively answered in Michelson v. U. S., 335 U. S. 469,

485 (1948):

“limiting instructions on this subject are no

more difficult to comprehend or apply than

those upon various other subjects.”

To say that allocution is a specific constitutional right is to

read into the Constitution what is not there. The argu-

ments of petitioner and amici based on that premise must

fall.

The State of Ohio has as much, if not more, of a valid

state purpose in maintaining its unitary trial proceedings in

a capital case as Texas had in enforcing its former recividist

statute in a unitary trial.

The unitary trial procedure has been in use throughout

the history of our country by every state in the Union.

There has been no showing in the arguments advanced by

petitioner why Ohio law and practice should be an excep-

tion to the statement in Spencer v. Texas, supra:

— —

To say that the two-stage jury trial in the-..:

English-Connecticut style is probably the fair-

est, as some commentators and courts have

suggested, and which we might well agree were

the matter before us in a legislative or rule

making contest, is a far cry from a constitu-. -

tional determination that this method of hand-

ling the problem is compelled by the Four-

teenth Amendment. ; '

... „Two: part jury trials are rare in our juris-

prudence; they have never been compelled by

this court as a matter of constitutional

law, or even as a matter of federal procedure.

To take such a step would be quite beyond the

pale of this court’s proper function in our Fed-

eral system. It would be a wholly unjustifiable .

_ encroachment by this Court upon the constitu-

tional power of States to promulgate their own

rules of evidence to try their own state-created

crimes in their own state courts, so long as

their rules are not prohibited by any provision

of the United States Constitution, which these

rules are not.”

THE DUE PROCESS AND EQUAL PRO-

TECTION CLAUSES OF THE FOUR-

TEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION DO NOT RE-

QUIRE STATUTORY STANDARDS FOR

THE IMPOSITION OF THE DEATH PEN-

ALTY BY THE JURY IN A CAPITAL CASE.

The development of laws relating to capital crimes in the

United States demonstrates a pattern beginning in the

Nineteenth Century and continuing to the present day which

shows increasing selectivity in imposing the death pen-

alty.> An analysis, of the statutes ‘of the State of Ohio and

other states shows that the legislatures ‘of the several states

have attempted in various ways to permit those who try the

case, whether judge or jury, some flexibility in deciding

whether the death penalty is called for in every ‘‘cap-

ital” crime.* There can be no disputing the fact that the

motivation of the legislatures has been largely humane and

that the enactments are attempts to institutionalize the in-

creasing sensitivity of civilized men and women with refer-

ence to the application of the death penalty.“

Petitioner and those supporting his position in this case

argue that the practice in Ohio courts permitted under

Section 2901.01, Ohio Revised Code, amounts to killing

people at the whim of a jury. We will attempt to demon-

strate that the facts argue otherwise, and that merely be-

cause statistics show that juries are becoming more and

more selective in the administration of the death penalty,

this does not demonstrate that the provisions of Ohio’s

First Degree Murder statute have become meaningless

with reference to punishment.

35, See Bedau, The Death Penalty in America, 27 (revised edition 1967).