Aikens v. California Respondent's Brief

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Matter
- Earnest James Aikens, Jr. v. State of California
Case
- Earnest James Aikens, Jr. v. State of California
U.S. state
- California
Collection
- Brief Collection
Taxonomy
Identifier
- 6c5e6920-ac9a-ee11-be37-00224827e97b

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Brief Collection, LDF Court Filings. Aikens v. California Respondent's Brief, 1971. 6c5e6920-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/02171f78-5d9b-4df3-a53b-7089268e6248/aikens-v-california-respondents-brief. Accessed November 03, 2025.

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October Term 1971
No. 68-5027

Earnest James Aikens, Jr.,

vs.
State of California,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court
of the State of California

RESPONDENT’S BRIEF

Evelle J. Younger,
Attorney General of the

State of California,
William E. James,

Assistant Attorney General of
the State of California,

R onald M. George,
Deputy Attorney General of

the State of California,
500 State Building,
217 West First Street,
Los Angeles, Calif. 90012,
(213) 620-2093,

Attorneys for Respondent.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX
Page

Question Presented ..................................................... 1

Statement of the Case ............................................... 1

A. History of the Case .................................... 1

B. Evidence Received at the Proceedings on
the Issue of Petitioner’s Guilt ................ 5
1. The Murder of Kathleen Nell Dodd .. 5
2. The Murder of Mary Winifred Eaton

.................................................................... 7
3. Statements and Conduct of Petitioner

Implicating Him in the Dodd and
Eaton Murders ..................................... 9

C. Evidence Received at the Proceedings on
the Issue of Penalty ..................................... 19
1. The Murder of Clyde J. Hardaway .. 19
2. Other Felonious Conduct by Peti

tioner: Burglaries, Attempted Rape,
and Assault With Intent to Commit
R ape........................................................ 22

3. Psychiatric and Psychological Evi
dence .................................................... 24

4. Defense Evidence Related to Peti
tioner’s Background............................... 26

5. Findings of the Trial Court in Fixing
the Punishment at D eath ...................... 29

Summary of Argument ......................................... 34

Argument ................................................................... 38

11.

Petitioner’s Sentence of Death and Pending
Execution, Resulting From His Conviction of
First Degree Murder, Do Not Comprise Cruel
and Unusual Punishment ................. ............. 38

A. Execution Is a Form of Punishment Ex
pressly Recognized by Provisions of the
Constitution and Upheld as Constitu
tional in a Long Line of Decisions by
This Court ...... ............ ............................ 38

B. Capital Punishment Is Widely Accepted
and Used in American Society and Com
ports With Contemporary “Standards of
Decency” .................................... ............. 51

C. In View of Petitioner’s Inability to Make
a Clear Showing That the Death Pen
alty Serves No Legitimate Function, the
Federal Constitution Leaves the People
of the State of California Free to De
termine Through Their Elected Repre
sentatives That the Protection of Society
Under Present Conditions Requires
Death as a Form of Punishment for
Certain Serious Offenses ...................... 71

D. The Death Penalty Is Not Arbitrarily or
Discriminatorily Imposed Upon Racial
Minorities, the Poor, or the Uneducated
in California; Prisoners Under Sentence
of Death Constitute a Representative
Cross-Section of California’s Criminal
Population ........... .................................. 103

E. Death Is Not a Cruel and Unusual Pun
ishment for Petitioner, the Unrepentant

111.

Page
Perpetrator of Three Known, Separate
Murders Committed for Pecuniary Gain
and Sexual Gratification ........................ 114

Conclusion ......................................................... ..... 117

Appendix. Defendants Under Sentence of Death
Reviewed by the California Supreme Court,
1965-1971 ............................................. App. p. 1

IV.

TABLE INDEX Page
Table A Public Opinion Polls on the Death Pen

alty: California—United States ............. ........... 56

Table B December 1970 Illinois Referendum on
Whether to Abolish the Death Penalty ............ 57

Table C Number of Prisoners Received in Prison
Under Death Sentence .......................................... 64

Table D Los Angeles Police Department Study
of the Deterrent Effect of the Death Penalty,
February, 1971 .................................................... 87

Table E Homicides in California Prisons, 1965-
1971, Committed by Adult Felons ....................... 99

Table F Race and the Imposition of the Death
Penalty in California........................ 105

Table G Race and the Commutation of Death
Sentences in California 1959-1971 ................. 108

Table H Defendants Under Sentence of Death
Reviewed by the California Supreme Court,
1965-1971 ..................... ....................._.App. p. 1

TABLE OF AUTHORITIES CITED

Cases Page
Aikens v. California, cert, granted, __ U.S. __ ,

91 S. Ct. 2280.... .......... ............ ..................... 1, 4
Coolidge v. New Hampshire, __ U.S. __ , 91

S. Ct. 2022 ____________- ............................... 71
Francis v. Resweber, 329 U.S. 459 ..... .......... -46, 50
In re Anderson, 69 Cal. 2d 613, 447 P.2d 117

(1968) ............ —- ................................. 50, 70
In re Cathey, 55 Cal. 2d 679, 361 P.2d 426

(1961) ............................. 96
In re Kemmler, 136 U.S. 436 ................39, 45, 50
In re Morse, 70 Cal. 2d 702, 452 P.2d 601

(1969) ............................................................ 100
In re Seiterle, 61 Cal. 2d 61, 394 P.2d 556

(1964), cert, denied, 379 U.S. 992 .................. 68
In re Seiterle, 71 Cal. 2d 698, 456 P.2d 129

(1969) ................................................................ 68
In re Terry, 4 Cal. 3d 911, 484 P.2d 1375

(1971) .................. .............................................. 68
Jackman v. Rosenbaum Co., 260 U.S. 22 ............ 71
Maxwell v. Bishop, 398 U.S. 262 ............................. 63
Maxwell v. Bishop, 398 F.2d 138 (8th Cir.

1968), vac’d, 398 U.S. 262 ..................— 77, 117
McGautha v. California, 402 U.S. 183 ..................

............................ 38, 42, 52, 63, 71, 75, 112, 118
McGowan v. Maryland, 366 U.S. 420 .................... 101
People v. Aikens, 70 Cal. 2d 369, 450 P.2d 258

(1969) ............... ............ ........ ......................... 4
People v. Chessman, 52 Cal. 2d 467, 341 P.2d

679 (1959), cert, denied, 361 U.S. 925 ......... 70

VI.

Page
People v. Daniels, 71 Cal. 2d 1119, 459 P.2d 225

(1969) ...................................... ............. ........74, 113
People v. Daugherty, 40 Cal. 2d 876, 256 P.2d

911 (1953), cert, denied, 346 U.S. 827 ............ 50
People v. Friend, 47 Cal. 2d 749, 306 P.2d 463

(1957) ................................................................ 75
People v. Gilbert, 63 Cal. 2d 690, 408 P.2d 365

(1965), vac’d, 388 U.S. 263 .......................96, 97
People v. Goodridge, 70 Cal. 2d 824, 452 P.2d

637 (1969) ......... .....63, 67
People v. Hall, 199 Cal. 451, 249 P. 859 (1926)

..... -----........... .......... ...................... ..................... 97
People v. Jensen, 43 Cal. 2d 572, 275 P.2d 25

(1954) 96, 97
People v. Love, 56 Cal. 2d 720, 336 P.2d 33

(1961) ..................62, 80, 85, 91, 92, 93, 101, 118
People v. Morse, 60 Cal. 2d 631, 388 P.2d 33

(1964) 66, 100
People v. Morse, 70 Cal. 2d 711, 452 P.2d 607

(1969) , cert, denied, 397 U.S. 944 . 100
People v. Mutch, 4 Cal. 3d 389, 482 P.2d 633

(1971) ................................................................... 74
People v. Peete, 28 Cal. 2d 306, 169 P.2d 924

(1946), cert, denied, 329 U.S. 790 ................. 95
People v. Purvis, 52 Cal. 2d 871, 346 P.2d 22

(1959) ................................................................... 96
People v. Robinson, 61 Cal. 2d 373, 392 P.2d

970 (1964) .......................................................... 67
People v. Robles, 2 Cal. 3d 205, 466 P.2d 710

(1970) .................................................................. 96

V1X.

Page
People v. St. Martin, 1 Cal. 3d 524, 463 P.2d

390 (1970) .............................. 96
People v. Seiterle, 56 Cal. 2d 320, 363 P.2d 913

(1961) ............................ 68
People v. Seiterle, 59 Cal. 2d 703, 381 P.2d 947

(1963) , cert, denied, 375 U.S. 887 ............. 68
People v. Seiterle, 65 Cal. 2d 333, 420 P.2d 217

(1966), cert, denied, 387 U.S. 912 .................. 68
People v. Stanworth, 71 Cal. 2d 820, 457 P,2d

889 (1969) ......................... 67
People v. Terry, 57 Cal. 2d 538, 370 P.2d 985

(1962) , cert, denied, 375 U.S. 960 ............... 68
People v. Terry, 61 Cal. 2d 137, 390 P.2d 381

(1964) , cert, denied, 379 U.S. 866 ......... ........ 68
People v. Terry, 70 Cal. 2d 410, 454 P.2d 36

(1969), cert, denied, 399 U.S. 811 ............... 68
People v. Thornton, L.A. Super. Ct. No. 328445

............................................................................... 60
People v. Vaughn, 71 Cal. 2d 406, 455 P.2d 122

(1969) ................................. 96
Powell v. Texas, 392 U.S. 5 14 .... ............... ............

..............................................49, 72, 75, 93, 95, 102
Robinson v. California, 370 U.S. 660 ..............49, 51
Robinson v. United States, 324 U.S. 282 .............. 92
Rudolph v. Alabama, 375 U.S. 889 ..................... . 76
Seiterle v. Superior Court, 57 Cal. 2d 397, 369 P.

2d 697 (1962) ...................... ............................. 68
Stein v. New York, 346 U.S. 156 ......................... 113
Spencer v. Texas, 385 U.S. 554 ................... ......... 118
Trop v. Dulles, 356 U.S. 86 ..... 35, 40, 47, 48, 51

............................................ ......52, 54, 63, 70, 76

V lll.

Page
United States ex rel. Townsend v. Twomey, 322 F.

Supp. 158 (N.D. 111. 1971) ...... ............. ............ 68
Walz v. Tax Commission, 397 U.S. 664 ................ 71
Weems v. United States, 217 U.S. 349 __ 41, 45, 46

.................................................-................ 48, 51, 71
Wilkerson v. Utah, 99 U.S. 130 ........................ 44, 50
Williams v. New York, 337 U.S. 241 ..66, 75, 76, 113
Williams v. Oklahoma, 358 U.S. 576 ..... .............. 48
Winston v. United States, 172 U.S. 303 ................ 75
Witherspoon v. Illinois, 391 U.S. 510 .............. 55, 66

Statutes
Act of April 30, 1790, ch. 9, §§ 1, 3, 8, 14, 33,

1 Stat. 112 .................................................... 43
Act of April 2, 1792, ch. 16, § 19, 1 Stat. 246 .... 43
Cal. Code Civ. Proc. § 170.6 ................................... 2
Cal. Mil. & Vet. Code § 1670 ........................ 73
Cal. Mil. & Vet. Code § 1672(a) ........................... 73
Cal. Pen. Code:

§ 37 ......... 73
§ 128 ............................ 73
§ 187 ............... ............. ......... ..........................2, 3
§ 188......................... ................... ........................ 3
§ 189 .......................................... 3
§ 190 ................................................................ 3, 73
§ 190.1 ................. ......................................3, 4, 103
§ 209 ......................... ............. ............ 73, 74, 95
§ 2 1 3 ..................................................................... 90
§ 2 1 9 ............................................................. 73
§ 461 ............................................................. 90

IX .

Pag©
§ 671 .......... 90

§§ 1026-27 .......................................................... 103
§ 1181(6) (7) .................. 113
§ 1193 ...................................... 4, 69
§ 1227 ........................................................ ......... 69
§ 1239 .................................... ............... .............. 67
§ 1239(b) ................................................. ......4, 113

§§ 1368-70 .................................... ............ ........... 103
§ 3046 ................ 95, 99
§ 3604 ....................................... 4

§§ 3700-06 ........................... 103
§ 4500 ..................... 73

§§ 4800-06 ........................................................ 103
§ 4801 .............................. 113
§ 4812 .................... 113
§ 12310 ....................................... 62, 73

18 U.S.C. § 1751 ......................................... .......... 62
49 U.S.C. § 1472(i) .............................................. 62

Constitutions
Cal. Const. Art. I, § 6 ...............
Cal. Const. Art. V, § 8 ............
U.S. Const. Art. I, § 9 ...............
U.S. Const. Art. II, § 2 ...............
U.S. Const. Art. Ill, § 3 .............

.............................. 44

....-........................ 95
.......................................... 39

.............................. 38
.......................................... 39

U.S. Const. Amend. V ..................................... 34, 39
U.S. Const. Amend. VIII ....34, 40, 41, 42, 43, 44, 45

.........................46, 47, 48, 49, 50, 65, 70, 102, 117
U.S. Const. Amend. X ............................................ 39
U.S. Const. Amend. XIV ............ 40, 46, 49, 70, 118

Texts Page
American Bar Association, Section of Criminal

Law Proceedings— 1959 ...................... 85
Amsterdam, Comment, Racism in Capital Punish

ment: Impact of McGautha v. California, 1
Black L. J. 185 (1971) ....... ........... ............... 306

2 Basic Writings of St. Thomas Aquinas 712, 843
(Pegis ed. 1945) ...................... 54

Bedau, Death Sentences in New Jersey 1907-1960,
19 Rutgers L. Rev. 1 (1964) ............. ...106, 107

Bedau, The Death Penalty in America 6, 20,
123, 130, 154 (rev. ed. 1967) ..........39, 58, 80, 94

Black’s Law Dictionary 1466 (4th ed. 1951) ..... 39
4 Blackstone, Commentaries 18 (Tucker ed. 1803)

........... 91
California Assembly, Report of the Select Com

mittee on the Administration of Justice, Parole
Board Reform in California 13 (1970) .............. 98

California Bureau of Criminal Statistics, Crime
and Delinquency in California— 1969 (1970) .. 105

California Bureau of Criminal Statistics, Death in
Custody—California 1962-1968 (1969) ........... 114

California Department of Corrections, California
Prisoners— 1970 (197..) ................................... 105

California Department of Corrections, California
Prisoners— 1968 (1969) ...............................64, 111

California Department of Corrections, Executions
in California 1943 Through 1963 (1965) ....79, 94
..............................................96, 109, 111, 112, 114

California Legislature, Final Calendar of Legisla
tive Business: Regular Session 1970, Assembly
Final History (Bill 20) 52 ........... 62

XI.

Page
California Legislature, Legislative Index (August

17 ,1971)................................. .......................... 62
California Legislature, Senate Weekly History

(September 9, 1971) .................. ....................... 62
California Senate, Hearing Report and Testimony

on Senate Bill No. 1, 1960 Second Extraordi
nary Session, Which Proposed to Abolish the
Death Penalty in California and to Substitute
Life Imprisonment Without Possibility of Parole
133-35, 149-54, 156, 161 (March 9, 1960) ..92, 96

Coakley, Capital Punishment, 1 Am. Crim. L. Q.
27 (May, 1963) ........ .........................85, 110, 111

Erskine, The Polls: Capital Punishment, 34 Pub.
Op. Q. 290 (1970) .................. ................ 56, 109

Federal Bureau of Investigation, Uniform Crime
Reports—-1970, 7-8, 118, 131 (August 31,
1971) ........................................... 78, 106, 108, 117

Florida Special Commission for the Study of Abo
lition of Death Penalty in Capital Cases, Re
port 31 (1965) ................... ...........................58, 81

Goldberg & Dershowitz, Declaring the Death Pen
alty Unconstitutional, 83 Harv. L. Rev. 1773
(1970) .............................................................. 44

Granucci, “Nor Cruel and Unusual Punishments
Inflicted:” The Original Meaning, 57 Calif. L.
Rev. 839 (1969) ................... 40

Holy Bible (King James version) ........ 53
Illinois Secretary of State, Constitution of the State

of Illinois & United States 13 (1971) ..... ...... 57
Laurence, A History of Capital Punishment 1

(1932) ............... 52

Xll.

Page
Legislative Drafting Research Fund, Columbia

University, Index Digest of State Constitutions
343 (2d ed. 1959) ..... ............. ......... .............. 44

Legislative Reference Service, Library of Congress,
Constitution of the United States of America 28
(rev. ann. ed. 1964) .......................................... 38

National Commission on Reform of Federal Crim
inal Laws, 2 Working Papers 1359 (n. 47)
0970) ................................................................. 75

Hearings Before the Subcommittee on C rim inal
Laws and Procedures of the Senate Committee
on the Judiciary on S. 1760, To Abolish the
Death Penalty, 90th Cong., 2d Sess. 212
(1970) ................................................................. 74

Note, The Effectiveness of the Eighth Amendment:
An Appraisal of Cruel and Unusual Punish
ment, 36 N.Y.U. L. Rev. 846 (1961) .......... 40, 44

Packer, Comment, Making the Punishment Fit the
Crime, 77 Harv. L. Rev. 1071 (1964) ....65, 66, 75

Post—Conviction Remedies in California Death
Penalty Cases, 11 Stan. L. Rev. 94 (1958) .. 69

Powers, Crime and Punishment in Early Massa
chusetts 308 (1966)........ 42

Report of New Jersey Commission to Study Capi
tal Punishment 8, 9-10 (October, 1964) ..94, 106

- ............................................................................................................. 110, 112
Royal Commission on Capital Punishment 1949-

1953 Report, 24, 274, 335, 340 (1953) ....... 78
........................................ -............................... 85, 92

St. Augustine, City of God 27 [Book I, ch. 21]
(Mod. Library ed. 1950) ................................. 54

XIII.

Pago
Special Issue, A Study of the California Penalty

Jury in First-Degree Murder Cases, 21 Stan. L.
Rev. 1297 (1969) ........ ........... .............. '...106, 109

Schuessler, The Deterrent Influence of the Death
Penalty, 284 Annals of the Am. Acad, of Pol.
and Soc. Sci. 54 (Nov. 1952) ............................ 106

State of California, Joint Legislative Committee
for Revision of the Penal Code, The Criminal
Code §315(a)(1) (Staff Digest) 18 (1971) .. 62

United Nations, Department of Economic and So
cial Affairs, Capital Punishment 9 (1968) .. 65

U.S. Bureau of Prisons, National Prisoner Statis
tics Bulletin: Capital Punishment 1930-1968
(August, 1969) 7 (Table I), 11 (Table 3), 12
(Table 4), 30 (Table 15) ........44, 62, 64, 68
.................................................................. 74, 79, 105

Van Den Haag, On Deterrence and the Death
Penalty, 60 J. Crim. L. C. & P. S. 141 (June,
1969) ..................................... 77, 86, 101, 110, 113

Miscellaneous
Allen, Capital Punishment: A Matter of Human

and Divine Justice, The Police Chief, vol. 27
(March, 1960) 1 ...................... .....................54, 59

Allen, Capital Punishment: Your Protection and
Mine, the Police Chief, Vol. 27 (June, 1960)
2 2 ........................................... .................... -......... 59

California State Prison at San Quentin, Capital
Punishment in California 3 (August 1, 1970) .. 70

California State Prison at San Quentin, Execution
Data (September 1, 1971) ............................67, 104

Christianity Today, vol. IV, No. 1 (October 12,
1959) 7 .......... ................... ....... ........ ....... ....... 58

District Attorneys’ and County Counsels’ Associa
tion of California, Official Position on Capital
Punishment 1 (September 2, 1971) .................. 86

XIV.

Page
Field Research Corporation, The California Poll,

Release No. 635 (May 22, 1969) ...... .............. . 56
Field Research Corporation, The California Poll,

Release No. 726 (September 14, 1971) ............ 56
Gallup International Inc., Gallup Opinion Index 15

(Report No. 45, March, 1969) ......................... 56
Los Angeles Police Department, Detective Bu

reau, Administrative Analysis Section, A Study
by the Los Angeles Police Department on
Capital Punishment 3, 11 (February, 1971) ....
....................... .................. .............—.86, 87, 88, 89

Los Angeles Times:
Part I, p. 1 (Dec. 13, 1958) ............................. 96
Part I, p. 8 (Feb. 14, 1959) ...... 57
Part I, p. 1 (Aug. 10, 1963) ............................. 58
Part I, p. 21 (Nov. 16, 1966) ............ 59
Part II, p. 6 (May 26, 1967) ......... I l l
Part III, p. 8 (July 15, 1967) ............................ 58
Part I, p. 20 (Dec. 18, 1969) ........................... 58
Part I, p. 1 (Aug. 8, 1970).......... 97
Part I, p. 3 (Jan. 31, 1971) ........................... 98
Part I, pp. 1, 3 (June 23, 1971) ................59, 92
Part I, p. 15 (Aug. 12, 1971) ...................... 65
P arti, p. 1 (Aug. 22, 1971) ............................... 97
Part I, p. 3 (Aug. 25, 1971) ........................... 97
Part I, p. 1 (Sept. 14, 1971) ................. 98
Part I, p. 1 (Sept. 15, 1971) ................. ...59, 98

New York Times, p. 31 (July 23, 1971) .............. 69
Sacramento Bee (May 5, 1967) .......................... 86
The American Scholar, vol. 31, No. 2 (Spring

1962) 181-91 ____ _________ ___ ___ ______ 59
The New Leader, vol. 44 (April 3, 1961) 18 __ 59
The Tidings 9 (Feb. 13, 1959) ...................... 54, 59

IN THE

Supreme Court of the United States
October Term 1971

No. 68-5027

Earnest James A ikens, Jr .,

vs.
State of California,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court
of the State of California

RESPONDENT’S BRIEF

QUESTION PRESENTED

The petition for writ of certiorari was granted lim
ited to the following question:

“ ‘Does the imposition and carrying out of the
death penalty in this case constitute cruel and un
usual punishment in violation of the Eighth and
Fourteenth Amendments?’ ,n

STATEMENT OF THE CASE

A. History of the Case
In an indictment returned by the Grand Jury of

Ventura County, State of California, on April 30, 1965,
petitioner was charged with the murder of Mary Wini-

K... U.S......, 91 S. Ct. 2280.

—-2—

fred Eaton on April 26, 1965, a violation of California
Penal Code section 187. [R., Cl. Tr. I, p. I .]2 The
same grand jury on August 13, 1965, indicted peti
tioner for a second violation of the same provision, the
murder of Kathleen Nell Dodd on April 4, 1962. [R.,
Cl. Tr. Ill, p. 1.]

In each case two attorneys were appointed to rep
resent petitioner. [R., Cl. Tr. I, pp. 4, 6; Cl. Tr. Ill,
p. 3.] On motion of defense counsel the court ordered
that $750 might be expended by said counsel for in
vestigation purposes, $350 for employment of a psy
chiatrist, and $750 for an electroencephalographer.
[R., Cl. Tr. I, pp. 6, 20; Cl. Tr. Ill, p. 19.] Petitioner’s
motions for discovery of the prosecution’s evidence were
also granted. [R., Cl. Tr. Ill, p. 19; Cl. Tr. II, p. 115.1

Petitioner pleaded not guilty to each charge, and the
two cases were consolidated for trial. [R., Cl. Tr. I,
pp. 21, 54; Cl. Tr. II, p. 8.] Petitioner then exercised
his right under California law3 to disqualify the judge
to whom the case was initially assigned for trial. [R.,
Cl. Tr. Ill, pp. 43-44.] Thereafter on three occasions
petitioner personally, both his counsel, and the prose
cuting attorney waived trial by jury. [R., Cl. Tr. I, pp.
72, 77, 96-100, 109-13; Cl. Tr. II, p. 115.]

After presentation of the evidence on the issue of
guilt and extensive arguments thereon, the court found

References are to the record in the state proceedings. Pend
ing is a motion filed by respondent, with petitioner’s acquiescence,
requesting that the Court consider this case upon the original
record and dispense with the printing of an appendix, since the
record comprises several thousand pages. The designations Cl.
Tr. I and II refer to the two volumes of clerk’s transcript in
case CR 5527 and the designation Cl. Tr. I l l to the single vol
ume of clerk’s transcript in case CR 5705.

sCal. Code Civ. Proc. § 170.6.

—3

petitioner guilty of murder4 as charged in both in
dictments and found the offenses to be in the first de
gree.5 [R., Cl. Tr. II, p. 209. |

During the course of the further proceedings which
took place on the issue of penalty,B a difference of
opinion arose between petitioner and his counsel7 as
to whether petitioner should take the stand in his own
behalf, and the trial court appointed a third attorney
for the limited purpose of advising petitioner of his
rights and the consequences of taking the stand. After
consultation with counsel, and a day’s deliberation, pe
titioner chose to abide by the advice of counsel not to
testify. [R., Cl. Tr. II, pp. 269-70.]

After presentation of the evidence on the issue of
penalty and extensive argument thereon by counsel
(and by petitioner personally, by leave of the court),
the court fixed the penalty at death on the Eaton mur
der. [R., Cl. Tr. II, pp. 274, 296.] After argument on
petitioner’s motions for new trial or for reduction of
punishment, including argument by petitioner person-

4Until its amendment in 1970 to include feticide, California
Penal Code section 187 provided: “Murder is the unlawful
killing of a human being, with malice aforethought.” Malice is
defined in California Penal Code section 188.

"Premediated and deliberate murder, as well as murder com
mitted in the perpetration of certain felonies (e . g robbery, bur
glary, or rape), is murder in the first degree. Cal. Pen. Code
§ 189.

''■First degree murder is pupishable in California in the alter
native by death or life imprisonment, at the discretion of the
trier of fact, while second degree murder is punishable by im
prisonment from five years to life. Cal. Pen. Code § 190. Cali
fornia provides for bifurcated proceedings on the issues of guilt
and penalty in capital cases. Cal. Pen. Code § 190.1,

7One of petitioner’s two appointed attorneys became ill during
the course of the penalty proceedings, which continued in his
absence at the request of petitioner’s other attorney. [R., Cl.
Tr. II, p. 244.]

ally, said motions were denied by the trial court. [R.,
Cl. Tr. II, p. 299.] On April 7, 1966, petitioner was
sentenced to death" on the Eaton murder and to
life imprisonment on the Dodd murder,9 the sentences
being ordered to run concurrently. [R., Cl. Tr. II, p.
300; Cl. Tr. Ill, pp. 134-35.]

Petitioner filed notice of appeal from the judgment
imposing the punishment of life imprisonment. [R.,
Cl. Tr. Ill, p. 137.] Appeal to the California Supreme
Court from a judgment imposing the death penalty is
automatic under California law.10 On February 18,
1969, the California Supreme Court, in a unanimous
opinion written by Justice Peters, affirmed the judg
ment in its entirety. People v. Aikens, 70 Cal. 2d 369
[450 P. 2d 258] (1969). On March 25, 1969, the
trial court fixed June 4, 1969, as the date for peti
tioner’s execution.11

Justice Douglas extended the time for filing a peti
tion for writ of certiorari until May 30, 1969, and on
May 23, 1969, stayed petitioner’s execution. The pe
tition was filed on May 29, 1969, and, with petitioner’s
motion for leave to proceed in forma pauperis, was
granted on June 28, 1971.12

"California Penal Code section 3604 provides: “The punish
ment of death shall be inflicted by the administration of a lethal
gas.”

California Penal Code section 190.1 provides in part: “The
death penalty shall not be imposed, however, upon any person
who was under the age of 18 years at the time of the commission
of the crime.” The record (reporter’s transcript, references to
which are cited herein as R.) indicates that petitioner’s age was
several days under 17 years at the time of the Dodd murder, and
20 years at the time of the Eaton murder. [R. 4474.]

10Cal. Pen. Code § 1239(b).
n See Cal. Pen. Code § 1193.

U.S......, 91 S. Ct. 2280.

B. Evidence Received at the Proceedings on the Issue
of Petitioner’s Guilt

1. The Murder of Kathleen Nell Dodd
In April of 1962 Kathleen Nell Dodd, a 25-year-old

Caucasian woman, lived in the City of Ventura, Cali
fornia, with her husband, Ventura County Deputy
Sheriff Robert Dodd, and their two daughters, aged
three and one. [R. 57-58, 61, 88, 2860, 2882.] Mrs.
Dodd was five months pregnant at that time. [R. 127.]
Mrs. Dodd had expressed concern over the type of
neighborhood in which she lived. Shortly before her
death, a two- to three-foot length of pipe was thrown
through her front window while her husband was away
at work, and during the week or two preceding her
death she had observed a brown Dodge or Chevrolet
parked nightly near her residence between midnight and
5:00 a.m. She always locked her doors and before
opening them always ascertained the identity of her
visitors even when their arrival was expected. She had
even told a neighbor that in the event a criminal were
to intrude into her house, she would run outside in
order to lead him away from her children. [R. 59,
2001-02, 2006, 2021-22.]

At 6:30 p.m. on April 3, 1962, Deputy Dodd left
to attend his evening college classes. [R. 62.] About
midnight Mrs. Clair McWilliams, a resident in the area,
was awakened by “a very high, shrill, prolonged scream.
It had a very unearthly sound to it.” She ran to the
driveway on the adjoining property and observed a
figure running toward the gate of the patio in a rapid
zig-zag motion. She also heard the sound of twigs crack
ling to her left. As Mrs. McWilliams approached with
her 17-year-old son, who was armed with a rifle, and
her small dog, she realized that the figure was that of

—6—

a woman, from whom a steady stream of blood was
flowing, emitting the sound of a running faucet. The
blood-covered body immediately collapsed, and the
woman, later identified as Mrs. Dodd, appeared to be
dead. [R. 24-33, 54.]

Upon his return to the Dodd residence at 1:30 a.m.
after visiting some friends, Deputy Dodd had noticed
that the back door was unlocked; the television was
on; the two little girls were asleep, but Mrs. Dodd was
absent. Wet stains which he noticed on the floor, the
coffee table, and two chairs appeared to be tea stains.
Sixty dollars from a drawer, and a knife normally in
a kitchen knife rack, were missing. After several tele
phone calls to various friends to ascertain the where
abouts of his wife, Deputy Dodd contacted the Ven
tura Police Department. [R. 62-64, 67-68, 72, 80, 83,
85.]

Police inspection of the neighborhood disclosed the
following. Marks in the driveway where Mrs. Dodd’s
body was found were indicative of a struggle. A pack
of matches and a package of Salem cigarettes (a brand
smoked by both Mrs. Dodd and petitioner) were found
in this area. A trail of blood led from them to the lo
cation of the body. Across from the driveway in a
grassy area were signs of a person’s having crawled
along the ground. [R. 92, 140, 154-55, 1321-22, 1491.]

On a railroad embankment about 600 feet from
the Dodd home, the police found the missing knife be
longing to the Dodds, a pair of panties, and Mrs. Dodd’s
eyeglasses. An indentation in the soil suggested that a
person had been sitting or lying with his head at the
top of the embankment, and further down another
indentation suggested the former presence of a kneeling

-7—

person. Other marks indicated that someone had gone
up the side of the embankment and slipped backward.
[R. 83, 86, 142-43, 148-49, 153.]

The autopsy performed on Mrs. Dodd’s remains dis
closed several knife wounds in the neck penetrating
the carotid artery, the thyroid, and the voice box, caus
ing extensive hemorrhaging. There were also pressure
mark abrasions on the neck, bruises on the arms and
legs, and knife wounds on one arm and three fingers
and in the chest, one of the lungs, the abdomen, the
liver, and the back. The autopsy verified the presence
of a 5-month-old male fetus and in the vaginal area the
presence of sperm and acid phosphatase, a chemical
substance produced by the male sexual organs. In the
opinion of the pathologist, sexual intercourse had oc
curred no longer than two to three days prior to death.
[R. 180-205, 210, 215-16, 677.] Deputy Dodd last
had sexual intercourse with his wife about nine days
prior to her death. [R. 125.] Soil deposited in the
crease between the deceased’s buttocks was similar in
type to that found on the railroad embankment. [R.
217, 616-19, 677-78.]

2. The Murder of Mary Winifred Eaton

In April of 1965 Mary Winifred Eaton, a Caucasian
woman in her sixties, lived with her husband Frank
Eaton in the City of Ventura, California, with their
adopted children, Eddie Eaton and Susan Mann, and
Susan’s husband, David Mann. [R. 1128-A, 1740-41,
1802-03, 2860.] On April 26, 1965, Mr. Eaton left
for work at 7:35 a.m. and Susan, David, and Eddie left
the house at 8:20 a.m. [R. 848, 1741.] At that time
Mrs. Eaton told Susan that she was going to wax the
floors, as she apparently began to do later in the morn-

— 8

ing. [R. 1742, 1749-50.] A commercial census taker
who had previously known Mrs. Eaton received no
answer upon knocking at the Eaton residence at 10:00
a.m. but did speak to Mrs. Eaton on a second visit that
morning between 11:00 and 11:30. No witness testi
fied to seeing her alive after that hour. [R. 771-75.]

Upon returning home about 3:40 p.m., Susan and
David were greeted by petitioner from across the street.
[R. 1742-43.] Mr. Eaton returned home about 5:00
p.m. |R. 849-50.] The Eaton family became concerned
when Mrs. Eaton did not return, and they began a
search of the house. Her automobile was in the garage,
and a door between two adjoining garages, usually kept
closed, was open. [R. 857-59.] Money was missing
from a grocery purse, and a vacuum cleaner was over
turned. [R. 852, 856-57, 1746, 1763-65.] At 6:45
p.m. Mrs. Eaton’s body, initially overlooked because it
was mostly covered with bedding, was discovered by
her husband in Eddie’s bedroom. [R. 861.]

Mrs. Eaton’s hands were bound behind her with a
belt, and another belt was tied around her neck. [R.
902-04, 1358-59.] An autopsy revealed that a knife,
apparently taken from a drawer in the Eaton residence,
had been used to stab her repeatedly; the major cause
of death was hemorrhage and shock caused by a large
wound in the neck severing the jugular vein and the
trachea and reaching the spine. Other knife wounds
were located in the back of the neck and the chest,
with five entries into the heart. A vaginal smear taken
from Mrs. Eaton disclosed the presence of sperm and
seminal fluid. [R. 1631-38, 1643-46, 1649, 1662, 1807,
1834, 1839.] Mrs. Eaton had last had sexual relations
with her husband seven days prior to her death, and

—9—

apparently he was physiologically incapable of pro
ducing sperm. [R. 867, 1596.]

Mrs. Eaton’s body had been partially covered with
bedding, and an attempt had been made by her assail
ant to remove blood from the knife prior to replacing it
in the kitchen drawer. [R. 861, 1288-89, 1839.] Two
purses were found near her body. [R. 862-63.]

3. Statements and Conduct of Petitioner Implicating Him in the
Dodd and Eaton Murders

On August 25, 1961, petitioner, a Negro, was de
livered to the Southern Reception Center of the Cali
fornia Youth Authority at Norwalk; he was transferred
to the Preston School of Industry on October 10, 1961,
and paroled on March 12, 1962. [R. 1966-67, 2850. ]

On March 27, 1962, petitioner’s mother, Mrs. Liller
Lewis, purchased a brown and tan 1953 Chevrolet from
McMonica Motors. Thereafter petitioner stopped by the
agency frequently; he was driving the vehicle. [R. 2432-
37, 2479-81.]

On April 3, 1962, petitioner asked Mike Dixon to
drive him home from the residence of a friend named
Carter. When Dixon refused, petitioner pulled a knife
on him, but Dixon viewed the incident as a joke, and
he and Thomas Chambers drove petitioner home about
11:00 p.m. Petitioner told Dixon that he had a date
with a “white woman” that evening. [R. 495-99, 508-
09, 512-13.] Three or four days earlier petitioner had
spoken to Chambers about a “white woman” and had
stated that “she had a good pussy.” [R. 238.]

Dixon saw petitioner at police headquarters on the
morning after the Dodd murder, at which time peti
tioner related that he was being held on suspicion of

- 10-

having killed Mrs. Dodd. [R. 502-03. j On the fol
lowing day, at Carter’s house, petitioner told Dixon,
“ ‘I killed the Dodd woman’ ” because “ ‘[s]he was
going to cut me loose.’ ” Asked about a scratch on his
face that had not been there the evening before, peti
tioner replied, “ ‘Nothin’ but that good lovin’.’ ” When
petitioner removed his shirt while washing an automo
bile, scratches on his back were apparent. Asked about
them, he reiterated his previous remark. [R. 503, 505-
07.]

However, on the evening after the Dodd murder
Chambers had seen petitioner at Carter’s house and
had asked him about the scratch on petitioner’s face.
Petitioner replied that Ida Spellman, a policewoman,
had slapped him (which in her testimony she denied).
[R. 240-41, 607-08. j Two or three days later petitioner
told Dixon, as well as petitioner’s parole officer, that
he had scratched his face on a nail in a garage. |R.
241, 601, 605.] When Dixon and Carter confronted
him with his inconsistent explanations concerning the
scratch, petitioner said he did not wish to discuss the
matter. About this time petitioner was present when
the Dodd murder was discussed and said he did not
want to hear about it. Petitioner had money at this
time, and four or five days after the Dodd murder he
apparently lost $75 or $80 gambling. [R. 241-43.]

Three months after the murder, Deputy Dodd saw pe
titioner at the booking office of the Ventura County
Jail. At that time Deputy Dodd was not investigating
any crime involving petitioner, nor did he interrogate
him. Petitioner initiated a conversation and asked Depu
ty Dodd if he was the deputy sheriff whose wife had
recently been killed. When Deputy Dodd replied af
firmatively, petitioner declared, “ ‘It must have been a

— 1 1 -

pretty bad guy that would do something like that.’ ”
[R. 87-89, 92.]

On July 19, 1962, petitioner was returned to the cus
tody of the Youth Authority at the Preston School of
Industry and transferred to the Southern Reception
Center on September 28, 1962. He was paroled on
December 20, 1962, only to be returned to the South
ern Reception Center on February 20, 1963, and trans
ferred to the Youth Training School at Ontario, Cali
fornia, on March 1, 1963. Paroled again on January
16, 1964, petitioner was returned to the Southern Re
ception Center on March 30, 1964, apparently on a
charge of assault and battery, and transferred to the
Youth Training School on April 20, 1964. [R. 1375,
1966-67.]

During these periods of custody he made the follow
ing incriminating statements to other inmates.

In July of 1962, Barney White met petitioner in
the Ventura County Juvenile Hall. The two of them
observed Deputy Dodd and shortly thereafter petitioner
told White that when he was burglarizing the Dodd
house, Mrs. Dodd had tried to get him to leave; he
had picked up a knife, chased her outside through a
field near the railroad tracks, and raped and killed her,
leaving the knife near the tracks. [R. 453-56.]

About the same time, petitioner pointed out Deputy
Dodd to another inmate as the deputy whose wife had
been killed, and told the inmate, Bennie Rochester, that
petitioner had killed her. Subsequently, petitioner said
he “was just kidding,” and upon encountering Roches
ter shortly before the present trial, three years later, pe
titioner told him he was “going to get” him. [R. 468-
71.]

-1 2 -

At the Preston School of Industry, petitioner ap
proached Gene Noreen, who was reading a comic book.
Petitioner was “bragging” about “raping” and “killing”
a “ ‘sheriffs wife.’ ” |R, 427-28, 434, 440. J He related
that he had gone up to her house and knocked, that
she opened the door a bit, then tried to close it; he
forced his way in and tried to rape her, but she scratched
him. He related tearing off Mrs. Dodd’s clothes, chas
ing her, and cutting her up. [R. 432, 442-44.] Petition
er had a knife, which he kept sharpened, during his
stay at the institution. [R. 433. |

Richard Carreiro knew petitioner at Preston in 1962.
Petitioner told him he had gotten into an argument
with a “white girl” and had killed her. In 1963 the
two inmates saw each other at the Youth Training
School, where petitioner repeated his statement, and
possibly said he was “going with” her; he said he
“ [s] lapped her around, she started running. He was
chasing her through back ways, caught her in the yard
and stabbed her” “a lot.” [R. 474-77, 484.]

On February 26, 1965, petitioner was paroled from
the Youth Training School. [R. 1966-67.]

During the second week of April, 1965, petitioner
showed up at the office of Inspector King, Chief of
Detectives of the Ventura Police Department, and told
him that he had information on narcotics and wanted
to work as a narcotics agent. Inspector King said he
would discuss the matter in the event petitioner pro
duced some reliable information. When petitioner ap
peared at Inspector King’s office a week later and
claimed to be broke, King gave him $2 of King’s own
money. |R. 1399-1401. | During this period another of
ficer gave $1 of his own money to petitioner when he

showed up at the station claiming he was short of
money. [R. 621-22.]

On April 13, 1965, thirteen days prior to the rape-
murder of Mrs. Eaton, the county health department
tested petitioner, found him to have gonorrhea, treated
him, and told him to return monthly for blood tests.
[R. 1939-41.]

Petitioner was an acquaintance of Eddie Eaton and
had been inside the Eaton residence on five occasions.
Mr. Eaton described him as a “rather sharp boy” who
“knows what he sees,” and who “could do almost
anything if he decided to really do it”; a person “having
lots of ability” but not always truthful. [R. 886-90,
1803-06.]

On the Saturday night preceding Mrs. Eaton’s death,
petitioner and some acquaintances went to Michael
Lawthorn’s house. When the conversation turned to
girls, petitioner remarked that he knew quite a few,
that he had been out with Caucasian girls, and “that
they were a nice piece of ass.” [R. 345-49.] On the
following evening petitioner advised Lawthorn on the
subject of “how to make girls hot.” [R. 352.] Peti
tioner also attempted to listen through the wall to a
“young couple that lived next door, . . . getting ready
to go to bed,” and proposed a scheme to take photo
graphs of persons through their windows at night and
blackmail these individuals. [R. 354-55.]

On April 26, 1965, petitioner was seen in the
general neighborhood of the Eaton residence by var
ious witnesses — at 10:30 a.m., before 11:00 a.m.,
around 11:00 a.m., and at 11:30 a.m. [R. 722-23, 763,
2376-77, 2381-82, 2396-97.] About noon, petitioner
asked Mr. and Mrs. Ira Shinavar, who lived approx-

— 14-

imately across the street from the Eatons, whether
there was any work for him to do. Petitioner was of
fered a dollar to catch a gopher under their lawn.
Petitioner replied, “ ‘Well, I just got to see about get
ting me some work,’ ” and walked across the street to
the house of Mrs. Catherine Lopez. [R. 801-05.]

Mrs. Lopez, who was not fully dressed, heard a
man say “hello,” thought it was her son-in-law, and
was surprised upon looking up to see petitioner through
the screen door. He was giggling and, when asked what
he wanted, asked if he could cut her lawn. As he
spoke to her, he jiggled the doorknob. Mrs. Lopez
declined his offer, and he walked toward the corner
house where Mrs. Eaton resided. She placed the time
of his departure shortly before 12:27 p.m., because
she placed a telephone call in order to check on the
time so she would not miss the 1:00 p.m. bus. ]R.
649-54.]

Some time prior to 1:00 p.m., petitioner returned to
the Shinavars with a cultivator and some wire to use
in catching the gopher, a task which he unsuccessfully
attempted for a few minutes. Mr. Shinavar said peti
tioner had been gone 35-40 minutes between the two
times that Mr. Shinavar had seen him. Petitioner re
lated that he had “scrounged” the cultivator and the
wire “on the corner” (the residence of the Eatons, to
whom the implement belonged) and that no one was
home. Petitioner then left the Shinavars and walked to
his home, where he was met by his parole officer,
Mr. Eugene Ansell, at 1:10 p.m. [R. 806-09, 817,
865-66, 885-86, 906-07, 1372.] That afternoon he told
Mr. Ansell, “ ‘It seems like every time things start to
go well for me something happens to mess it up.’ ”
[R. 1383.]

— 15—

Later that day petitioner persuaded a friend, Willie
Tenner, to drive him to Pasadena, in Los Angeles
County. Petitioner, who had not had enough money
for bus fare that morning, purchased some perfume,
went to buy a pair of shoes, paid $5 for gas, and pur
chased a six-pack of beer. [R. 373-74, 760-63, 925-
33, 1405.] They then proceeded to Pasadena to the
home of a girl known by petitioner and spent the eve
ning with some girls, during which petitioner bought
cigarettes and a bottle of vodka for Tenner, ciga
rettes, soft drinks, bread, and popcorn for the mother
of one of the girls, four phonograph records, and more
beer. [R. 933-39, 1024-25, 1030-31.]

Petitioner tried to slip a silver ring on the finger of
Anita Jones, but she refused it, telling him to give it
to his girl friend Corina Franklin (who was only two
days from giving birth). When she asked where he ob
tained it, he said never mind where. Petitioner showed
two rings, subsequently identified as Mrs. Eaton’s wed
ding band and engagement ring, to Margaret Knowles
and told her he planned to give them to Corina. He
told her he had purchased the rings. Petitioner visited
Corina on a date which she placed at April 26, 1965.
He stayed at her house occasionally and kept some of
his clothes there. He showed her Mrs. Eaton’s two
rings. The wedding band fit her finger, but she was un
able to remove it; the engagement ring was too
small for her to wear. When Corina asked petitioner
where he had obtained the rings, he at first ignored
the question and then said he had a job as a fry cook
in Ventura. When Gorina’s mother twice asked that
same question, petitioner did not respond but indicat
ed that he was singing at a night club and working
as a fry cook. [R. 993-96, 1101-09, 1146, 1153, 1193.]

— 16

That same evening petitioner slipped Mrs. Eaton’s
engagement ring on the finger of Belinda Pickens, tell
ing her that he hoped he had gotten the right size. He
declined to tell her where he had obtained it. [R.
1021-23, 1026-29.] Thereafter petitioner, Belinda, and
some of their friends drove into the mountains. When
they parked, they “heard something,” and petitioner
took a long knife from under the car seat. [R. 1034-
36.] Later that night petitioner and Belinda spent some
time on a blanket in a park, where she declined his of
fer of sexual relations. [R. 1038-39.]

As petitioner and Tenner drove back to Ventura
that night, petitioner said to him, “ ‘When I gets back
to Ventura, the police will probably be waiting for me
when I gets back. They will probably be settin’ on my
doorstep when I get to Ventura.’ ” [R. 947.]

Indeed, they were. As he walked up his driveway
at 6:00 a.m. on April 27, 1965, petitioner noted the
presence of police officers, who had awaited him
there since 2:30 a.m. [R. 1251-53.] Petitioner inquired,
“ ‘You guys looking for me?’ ”, and accompanied the
officers to Inspector King’s office, where he appeared
very nervous, was unable to stop pacing, and expressed
his impatience. [R. 1253-54.]

Two days later, while in custody, petitioner was in
formed by Inspector King that Mrs. Eaton’s rings had
been found and remarked, “ ‘Oh man, I’ve been had.
Them damn rings.’ ” [R. 1431.] The rings, which
Mrs. Eaton had been seen wearing the day before her
death, had wax on them, possibly the type she was
using on the floor, and a quantity of blood too small to
type. [R. 1847-48, 2407-10.] Petitioner told Inspector
King the following conflicting stories concerning Mrs.

— 17—

Eaton’s rings, which bore her initials and her hus
band’s he had had them “ ‘for so goddamn long it’s
been pitiful’ ”; he “ ‘bought them from some cat . . .
down on the corner, yesterday,’ ” and that when he ob
tained the cultivator from the Eaton residence he saw
the rings “ ‘laying on the ground and I picked them up
and stuck them in my pocket.’ ” [R. 1431-32, 1436,
1444.]

In early May petitioner told an inmate in the jail,
David Luker, that he had “killed the woman . . . but he
didn’t rape her.” [R. 1694-95, 1698.]

A cellmate of petitioner’s, Bobby Williamson, testi
fied to the following statements made to him by peti
tioner in late April or early May of 1965. Petitioner said
he knew who killed Mrs. Eaton but that it was not he;
that he had gone to her house to borrow some tools,
saw the rings inside the open door, and took them.
The only person he saw on the premises was “a boy
leaving there with bloody gloves in his pocket.” [R.
1125, 1128-A, 1129.]

With reference to Mrs. Dodd, petitioner told William
son that he had been approached by two male Negroes,
one of whom was “going with” her, and that they had
asked him “did he want some pussy.” Petitioner re
sponded affirmatively, but when informed that they
were referring to Mrs. Dodd, declined the offer be
cause he “didn’t want to get in any more trouble.”
Petitioner told Williamson that someone in a bar had
approached him to tell him that Mrs. Dodd had been
raped, killed, and “thrown out in an alley.” Nonethe
less, petitioner recounted that he might as well plead
guilty since “the district attorney’s office was going to
railroad him anyway.” [R. 1131-33.]

- 1 8 -

In June or July of 1965, petitioner showed William
son his sexual organ and said he would show it to the
doctor to demonstrate that, having gonorrhea, he could
not have raped Mrs. Eaton. Petitioner also inquired
whether Williamson thought “if he tried to act insane,
would it do him any good,” and Williamson said he
“didn’t think it would with the charge he had on him.”
[R. 1133-34.] On August 19, 1965, petitioner told
Williamson, “if they didn’t get him out of that county
jail, he was going to kill someone else.” [R. 1133.]

Near the end of October, 1965, petitioner told Lieu
tenant Urias of the Ventura Police Department that one
of his fellow inmates, Sam Waldron, had made state
ments indicating the inmate’s involvement in the Dodd
murder. Petitioner also told Urias, “ ‘Well, look, I’m a
marked man. . . . And now a story about some rings.
I’m doomed.’ ” [R. 1715, 1717, 1720-21.]

On November 8, 1965, at the jail, petitioner ap
proached Deputy Sheriff Gary Markley and inquired
when petitioner would get back his shoes. When told
that they were in evidence, petitioner became excited
and said, “ ‘Those weren’t even the shoes I was wear
ing when I—’ he then stopped himself, and his face
went blank. [R. 1821-23.] On November 24, 1965,
Deputy Sheriff Don Kent, who had custody over peti
tioner during the present trial, heard petitioner make
the following statement during the course of the testi
mony of Mrs. McWilliams, the woman who found Mrs.
Dodd’s body: “ ‘She is saying things that only I know.’ ”
While Deputy Dodd was testifying with reference to the
amount of money in the drawer at the Dodd residence,
petitioner told Deputy Kent: “ ‘He wouldn’t know that
unless someone told him.’ ” During the course of a re
cess later that day, petitioner asked Deputy Kent

— 19—

on three occasions to ask Deputy Dodd who it was
who had given him all his information. And with refer
ence to Mrs. McWilliams and her son, who had ap
proached Mrs. Dodd’s body armed with a gun and in
the company of a small dog, petitioner said, “ ‘They
were out there to kill me.’ ” [R. 1825-27.]13

C. Evidence Received at the Proceedings on the Issue
of Penalty

1. The Murder of Clyde J. Hardaway

On the morning of June 7, 1962, Edward Danner,
an employee of the Park Department of the City of
Pasadena, California, discovered a body, later identi
fied as that of Clyde J. Hardaway, a male Negro in his
forties, in a park located near Devil’s Gate Dam. [R.
3424, 3481-83, 3865.] Mr. Danner attempted to
rouse the man and, realizing that he was dead, sum
moned the police. [R. 3482, 3485.]

When the police turned the body over on its back,
the penis was exposed through the fly of the pants. [R.
3881, 3883, 3929.] There was blood around the face
and skull portions of the body. [R. 3879.] Automobile
tracks were apparent near the body as well as two
moist spots which, the officers concluded, were where
two persons had urinated on the ground. [R. 3871,
3930.] An autopsy determined the cause of death to
be hemorrhage and brain damage resulting from two
gunshot wounds, in the left temple and the rear of the
skull, with particles of burned gunpowder embedded
in the area of the wounds. The fatal weapon, which
ballistics tests showed might have been a derringer,
was determined to have been fired in each instance

13The trial court’s findings of fact on the issue of guilt ap
pear at R. 3372-3419.

— 20—

from less than four inches from the victim’s head.
There was also an abrasion on the victim’s forehead
and a contusion over one of his eyes, apparently caused
by the assailant’s dragging the body along the ground.
[R. 3498-3501, 3512-16, 3528, 3921-23, 4229, 4236.]
Laboratory analysis showed 0.15 percent alcohol in the
deceased’s blood, which would have made him a
borderline drunk driver, and indicated the presence of
blood and semen on the fly area of the boxer shorts
worn by Mr. Hardaway at the time of his death. [R.
3519, 4177.]

Petitioner was identified as Hardaway’s assailant
through circumstantial evidence and his own state
ments.

On the night of his death the deceased, a homo
sexual, had been drinking heavily and had on his per
son $100-$200. He was planning to send money to his
daughter in Texas, although it was also his habit to
carry large sums of money on his person. [R. 3575-
78.] That night a friend of his saw Hardaway talk
ing to a young male Negro in Hardaway’s automobile,
and apparently saw Hardaway hand the person some
money. [R. 3565-67.]

On the morning of June 8, 1962, the deceased’s ve
hicle was found abandoned in Oxnard (a city adjacent
to Ventura). Blood spots were observed on the out
side of the vehicle. [R. 3854, 3857-59.]

On June 7, 1962, petitioner had purchased a used
automobile in the City of Ventura, making a $107
cash down payment on the $132 vehicle. [R. 416.]
That same day he was back in Pasadena giving Corina
Franklin a ride in his new acquisition. When she asked
him where he had obtained it, he replied, “ ‘None of

— 21—

your business.’ ” [R. 3659-61.] That same day peti
tioner pulled out a gun and said he was going to shoot
a dog that had been playfully chasing them. Gorina’s
inquiry as to where petitioner had obtained the weap
on met with the same response. [R. 3661-62, 3673-
74.] The vehicle was later found abandoned on a Los
Angeles street. [R. 4091-92.]

A gun having the same appearance as the one
viewed by Corina, a derringer with white handles, had
been stolen from Mr. Roy Young in Ventura on June
6, 1962, the day before Hardaway’s body was found.
The gun, which Mr. Young kept under the head of his
bed, was taken when someone broke the window over
his bed and entered while Mr. Young was at work.
The theft took place one or two days after Mr. Young
had shown the weapon to petitioner and let him fire it.
[R. 3661, 3968-72, 3975, 4156-57.] Petitioner had
told a friend, “ ‘I got a little derringer.’ ” [R. 3896.]
Petitioner’s presence in Ventura on the day of the theft
was established. [R, 4166-68.]

On June 11, 1962, a male Negro approximating peti
tioner’s physical description, although described as
about 22 years of age, pawned Mr. Hardaway’s camera
in Pasadena, signing petitioner’s name, but never re
claimed the camera after a notification of the expira
tion of the pawn period was sent to 1950 Mentone
Street, Pasadena, the former address of petitioner’s half
sister. [R. 3944-51, 4016-18, 4173, 4590, 4823.]

In June and July of 1962, petitioner volunteered to
John Pena and Arthur Pena, in the juvenile tank of the
Ventura County Jail, that petitioner had been picked
up hitchhiking in Los Angeles by a “queer,” went into
the mountains with him, pulled out his derringer, made

— 22—

him get down on his knees, and when “the guy bent
down to blow him” shot him in the head a couple of
times, killing him, taking his wallet, and using the
money to buy an automobile. [R. 4024, 4026-27, 4029-
31.] '

Sometime in 1963 or 1964, at the correctional
Youth Training School, petitioner volunteered to an
other inmate, Richard Carreiro, that he had shot a homo
sexual “ ‘blood’ ” (fellow Negro) in the head and killed
him, that it was like “playing the part of the Deacon”
(a hired gunman, portrayed on television, who made
his victims kneel and then shot them in the forehead).
[R. 3547-49, 3557.) At this institution petitioner
showed a photograph of Mr. Hardaway’s daughter, in
scribed to Hardaway and taken from his wallet, to other
inmates in the course of their showing each other their
girl friends’ pictures. [R. 3889-90, 3893.]

2. Other Felonious Conduct by Petitioner: Burglaries, At
tempted Rape, and Assault With Intent to Commit Rape

On July 6, 1961, petitioner burglarized Scritchfield
Motors in the City of Ventura. Petitioner broke several
windows, entered the premises, and attempted to steal
an automobile. Petitioner managed to elude a pursuing
police officer who fired a shot at him. [R. 4201-04,
4243-44.]

Sometime during the summer of 1962 between 9:00
and 10:00 one evening, petitioner removed the screen
and opened a window in Louise Gunn’s house in the
City of Ventura. Mrs. Gunn took her gun, “eased out”
the back door, and observed petitioner, leveling the
gun at him. He ran away and then proceeded to walk
to his house, whistling. On the following day Mrs.
Gunn spoke to petitioner and his mother about the in-

•—23-

cident, and he “said something smart” to her. Mrs.
Gunn told them that the only reason she did not shoot
him was that she had known petitioner’s mother for
years, and that if he did it again petitioner would be
killed. [R. 4094-98.] Within two weeks the gun was
stolen from her house. [R. 4118.]

On Christmas Day of 1962, Dorothy Ann Piggee,
then 15 years of age, met petitioner in the City of
Pasadena. After spending some time with him and
some friends, she accepted his offer to “walk me home
and see that I got home safely.” On the way,
petitioner suddenly pulled her down. When she began
to scream, he put his hand over her mouth and told
her to “shut up or he would kill me.” Petitioner
then terrified her by placing a letter opener at her neck
and tore off her underpants. In the victim’s words, “he
tried to have an intercourse with me, but he couldn’t.
. . . [H]e put his finger up there, and he broke my
maidenhead,” and bloody fluid was emitted from her
sexual organ. Petitioner was unsuccessful in achieving
entry with his sexual organ. He told her, “ ‘How would
you feel, not having a girl for a year.’ ” She then ran
home, with petitioner in pursuit, and complained to her
mother, who decided to take her to the emergency
hospital. Petitioner then came up to her mother and
“told her that he had did it.” [R. 4250-54, 4261,
4264, 4281-83.] The victim was medically treated for a
tear in her hymenal ring. [R. 4123-24, 4129.]

Emory McMurray, Jr. had petitioner assist him in
his commercial rubbish collection business. He directed
petitioner to pick up some refuse from Mrs. Beverly
Metcalf, but never from Mrs. Deborah Bunnell. [R.
4316-21.] On February 4, 1964, petitioner drove a
truck to Mrs. Metcalf’s residence and picked up the

-2 4 -

trash. He asked Mrs. Metcalf how her husband was
and whether they had a dog. Then he asked to use the
bathroom. After hesitating, she gave him permission,
and while he did so he left the bathroom door open.
After returning to the trash receptacles outside, peti
tioner tried to re-enter through the back door, but it
was locked. Mrs. Metcalf then denied his request to
enter to use the telephone. [R. 4330, 4333-36, 4338-
40.]

Less than an hour later, petitioner appeared at Mrs.
Bunnell’s house and asked to use the telephone, which
she let him do. He chatted with her a few minutes,
and then she suggested it might be time for him to re
turn to work. Instead of going out the front door as
she expected him to do, he sat down on a chair in the
living room. She then repeated her suggestion, where
upon he got up, spun her around, grabbed her across
the chest, and placed a hand over her mouth, dragging
her some distance. She screamed and fought him,
liberating herself and reaching the front door, and he
finally obeyed her command to leave. Petitioner’s shirt
was filthy, and she found her face and shirt covered
with black dirt. [R. 4330, 4362-71, 4378.] Her
mouth was full of soot and dirt from petitioner’s gloves,
[R. 4380.] Mrs. Bunnel reported the incident to the
police as an assault with intent to commit rape. [R.
4296-97.]

3. Psychiatric and Psychological Evidence

Three psychiatrists and one psychologist testified at
the penalty proceedings, all having been called by the
prosecution.

On March 20, 1957, Dr. Walter Streitel, a psy
chiatrist, examined petitioner at Juvenile Hall in Ven
tura. At that time, when petitioner was 11 years of

- 2 5 -

age, he had a history of “difficulties with the law.” Dr.
Streitel “found absolutely no indication of any psychotic
manifestations”; petitioner “fitted most adequately in
the category of a sociopathic personality disturbance.”
[R. 4049-52.J Dr. Streitel noted, “we haven’t seen
much benefit from all of the efforts made to rehabili
tate this kind of a person.” [R. 4053-54.] Petitioner’s
commission of the Eaton and Hardaway murders was
“entirely consistent” with the foregoing diagnosis, and
in conjunction with the commission of the Dodd murder
led Dr. Streitel to conclude: “It is rather unlikely that
rehabilitation could be expected.” [R. 4056-63.]

On September 15, 1961, Dr. Stephen Howard made
a psychological evaluation of petitioner at the Southern
Reception Center and Clinic of the California Youth
Authority. Dr. Howard concluded that petitioner was
a person “of adult normal intelligence” with “strong
underlying anger and aggression” and therefore “po
tentially dangerous.” Dr. Howard “diagnosed him basi
cally as an inadequate personality,” finding that his
character disorder was “entrenched” and that “ ‘the
prognosis is poor’ ” for change in the future. [R. 4071-
75.]

In 1963, at the Southern Reception Center and Clinic,
Dr. Joseph Veich, a psychiatrist, examined petitioner
and developed a history of his mental background.
Dr. Veich concluded that petitioner was not a “sexual
pervert or sadist” and that petitioner had no mental
or emotional disorders. Dr. Veich did not find him to
be a sociopath. Petitioner was mentally normal and
did not give much indication of remorse. [R. 3474-78.]

In April of 1964, Dr. Veich again saw petitioner at
the same institution and found his mental condition

—26—

unchanged—mentally normal and essentially healthy.
[R. 3478-79.]

On April 27, 1965, Dr. Donald Patterson, a psy
chiatrist, examined petitioner at the Ventura Police
Station. Petitioner showed no evidence of a psychotic
reaction and was fully in contact with reality. Dr. Pat
terson’s conclusion was “that he did not present a
mental illness or psychosis, but that rather he pre
sented evidence of a long-standing personality malad
justment . . . which in my opinion qualified me to
diagnose him as presenting a sociopathic personality
disturbance.” [R. 4185-87, 4191-93.] Asked what
the prospects for rehabilitation were for a man with
petitioner’s sociopathic personality difficulties, Dr. Pat
terson concluded, on the basis of petitioner’s “long his
tory of difficulties of an overt nature,” “problems in
the home situation,” “his general attitude, which is one
of tendency to deny responsibility, . . . the marked trend
toward untruthfulness,” and petitioner’s tendency to
blame the, community for not understanding him and for
treating him unfairly, that the “prospects . . . for help
ing this individual are extremely limited.” [R. 4194-96. ]

4. Defense Evidence Related to Petitioner’s Background14

Petitioner’s mother testified in his behalf. She was
59 years of age at the time of trial, was born in
Louisiana, had little schooling, and claimed to be il
literate. She described her first marriage, at the age of
13, and a second marriage to a pastor, her move to
California in 1930, her separation from her husband,
and her move to Ventura in 1936. She had supported

, 14The defense evidence which purported to controvert pe
titioner’s guilt of the charged offenses and certain of the col
lateral offenses was inconsequential and is therefore not sum
marized by respondent.

—27—

herself and her two daughters since then by doing day
housework. [R. 4469-73.] After cohabiting with an
other man, she met a serviceman who fathered peti
tioner. However, Mrs. Lewis never married again, and
shortly after petitioners birth on April 18, 1945, she
ceased seeing petitioner’s father, who failed to con
tinue supporting her or petitioner. A year after the
birth of petitioner, his father ceased writing to Mrs.
Lewis. Petitioner never saw his father thereafter. [R.
4474-77, 4480.]

She ceased doing housework at $1 an hour when
welfare officials told her to stay home to care for
petitioner and gave her $80 a month for support. [R.
4478-79.] Because she was illiterate she could not
help petitioner with Ms school homework. [R. 4480.]
She moved to $30-a-month federal housing, by which
time her welfare had increased to $110, and she
worked to bring in additional money. [R. 4481-82.]

Petitioner had trouble with the law and for about
a year was placed in the custody of Thelma Callo
way, a half sister who lived in Pasadena. [R. 4482-84.]
Her testimony described this period in his life. [R.
4579-82.] Petitioner returned to Ventura to live with
his mother. [R. 4485-87. ] Thereafter petitioner did
“o.k.” in school and had no trouble there. He was
under the supervision of a probation officer at the
time. [R. 4488-89.] Petitioner also spent about a year
in San Diego with his other half sister at this juncture
in his life, thereafter again returning to his mother in
Ventura. [R. 4489-90.] Petitioner went to school, was
arrested, and was then committed to the Los Priestos
School. Upon his release he continued his schooling in
Ventura until he was again picked up and committed
to Preston School. [R. 4490-93.] Shortly after his re-

—28-

lease in 1962, petitioner and his mother visited in
Pasadena, where he was again committed, because of
“something about a girl.” [R. 4494-96.] Upon his re
lease and return to his mother’s house, he got a job
for a couple of weeks wiping cars on a used-car lot.
He also had occasional other work, including two or
three weeks’ work with the McMurray Trash Serv
ice. Thereafter petitioner was again committed to the
California Youth Authority. Upon his release he re
turned to his mother’s house and began to seek a job.
At that point in time petitioner was arrested on the
charge of murdering Mrs. Eaton. [R. 4498-4500.] At
no time in petitioner’s life “did any man act as a
father for him.” [R. 4501.]

On cross-examination Mrs. Lewis denied the truth
of Mrs. Gunn’s accusation that petitioner had broken
into her house. Petitioner’s mother denied knowing
whether petitioner’s step-sisters had sent him home to
Ventura because he got into difficulties and they could
not handle him. [R. 4502-03.] Mrs. Lewis also did not
know whether petitioner had been in “serious trouble”
prior to his eighth birthday. She had no recollection
of a complaint from a Mrs. Kelso that petitioner had
molested her little girl. [R. 4502-04.] Petitioner al
legedly was committed to the Youth Authority on
frequent occasions when he was innocent of any wrong
doing. [R. 4511.] Mrs. Lewis did remember that peti
tioner had once escaped from Juvenile Hall. [R.
4512.]15

Petitioner’s half-sister from Pasadena, Mrs. Callaway,
was a clerical supervisor, had a college education,

15Mrs. Lewis had also taken the stand at the proceedings on
the issue of guilt, where she likewise testified to her hard-working
schedule and cash subsidies to petitioner. [R. 2241, 2269, 2318-
20, 2224.]

—29—

and was working toward a degree in sociology. [R.
4604.]

The defense also called four officers of the Cali
fornia Youth Authority, who testified that during his
various periods of commitment petitioner appeared well-
adjusted, obedient, agreeable, and generally coopera
tive. Petitioner was an especially good athlete and con
sidered the “possibility of a future in collegiate ath
letics” since one or two colleges had made him an offer.
[R. 4605-08, 4611-12, 4643-45, 4649-52, 4659-64.]
However, during his confinement he was involved in
instigating a fight, which caused a month’s postpone
ment of his parole. [R. 4654.] And one of the Y'outh
Authority officers conceded, with respect to petitioner’s
various commitments, “I honestly don’t feel that there
was a great deal of rehabilitation done with [him].”
[R. 4675.]

5. Findings of the Trial Court in Fixing the Punishment at
Death

The Honorable Jerome H. Berenson, Judge of the
Ventura Superior Court, made the following findings
as trier of fact in fixing the punishment at the con
clusion of the proceedings on the issue of penalty:

“ [Fundamental, as I see it, is the grave responsi
bility of the Court to weigh and to ponder the
ultimate question, not only by a review of all of
the past criminal record and conduct of this de
fendant, but also from as incisive an inquiry as
possible into his background, his personal history,
and his personality. In addition, in my opinion,
it is essential that the Court should probe the pos
sibility or probability or likelihood that, when and
if such opportunity should at some time in the

-—30-

future exist, the defendant would or might repeat
and recommit crimes of extreme violence. And I
must necessarily be concerned with whether or not
there is a reasonable prospect of the rehabilitation
of this individual.

“Earnest Aikens has since the age of eleven
years of age, or thereabouts, been involved in
an almost continuous pattern of anti-social and
criminal behavior of one sort or another. He has
graduated from petty and minor nuisances and
offenses through more serious proceedings that
have involved Juvenile Court wardship and a
commitment to Los Priestos Boys’ School and to
more recent commitments at the Preston School of
Industry and the Youth Training School, both ad
ministered by the California Youth Authority. In
the instances of his parole from the Authority
level, his periods of surcease from criminal behav
ior have been of short duration. Now he stands
convicted of two brutal, cold-blooded and vicious
killings, together with the finding that I have here
earlier made of his responsibility for a third homi
cide. Interspersed with the foregoing have been in
stances of assault, rape and robbery. Such record,
at the very least, demonstrates an indifferent, ar
rogant and obvious disregard for the dignity and
value of human life and the rights of others.

“The question must then be asked as to what
kind of person, now at the very threshold of his
majority, would or could so conduct himself. Dr.
Streitel, who examined the defendant when he
was eleven years of age, reached the conclusion
at that time that he then fitted into the category
of a sociopathic personality disturbance. In re
sponse to Mr. Deem’s hypothetical questions con-

— 31

cerning and pertaining to the facts of the Harda
way and the Eaton incidents, the doctor stated
that the conduct there indicated was consistent
with the diagnosis that he had made of the de
fendant several years before. According to this
qualified psychiatrist a sociopath, despite the
possibility of being a pleasant and charming per
son, has neither regard for the truth or for re
sponsibility. He is self-centered, with little, if any,
concern or respect for laws or rights of others,
and because of his inability to learn from expe
rience, he constitutes a potential threat of violent
criminal conduct. Dr. Streitel expressed the opin
ion that we have not seen much benefit in the
past from all of the efforts made to rehabilitate this
kind of person.” [R. 4986-88.]

Judge Berenson then reviewed the opinions of Dr.
Howard and Dr. Patterson and continued,

“It has been suggested to this Court by counsel
for the defendant in a most eloquent and moving
plea in his behalf that Earnest Aikens should not
be held here accountable alone for the terrible
circumstances in which he now finds himself. Mr.
Ashby would urge that he is but the product of an
American tragedy, for which he is not fundamen
tally responsible. This encompasses a cold, un
relenting, a bleak and loveless environment, to
gether with the frustrations of poverty and of re
jection and, perhaps, of color-—all of this part of
a certain social and economic disorder of the day.
Because of his growing up in this kind of frustrat
ed existence, the defendant, as Mr. Ashby views
the situation, should thus be understood as to the
reasons for his emergence as a person who is

—32—
scornful, who is outraged and who feels alone in
society. That this young man may well have been
deprived of some of the environmental or other
advantages that others have enjoyed cannot, of
course, under any circumstances be denied, but X
have gained the conviction in my efforts here to
seek out the truth that he has been abundantly
provided the opportunity to obtain an education
without expense to himself or his family; that
he has not gone hungry or ill-clothed; that he
has been provided the chance to learn responsibil
ity, self-respect, personal dignity and the benefits
that may come to one who lives within the rules of
society on the occasions when he lived and had
the opportunity to be with his sisters in their
homes, each of which persons to this Court, and
from my observation of them they have impressed
me with their demonstrated intelligence, a stabil
ity, a social adjustment, and an exemplary personal
conduct; and beyond any question of doubt this
defendant has had the constancy of a love and a
loyalty given to him by a mother, too doting and
protective, perhaps, at times, but who without
education or material advantage to herself has
sought by virtue of her own long and hard toil
and labor to provide the defendant with a home,
some respectability in the community, and some
measure of economic assistance. Mrs. Liller Lewis
is not, in my judgment, a person here to be con
demned nor to be censured, but she is to be pitied.

“And I cannot avoid the observation that there
are many, many persons with early backgrounds
much worse, indeed, than that of this young man
who have developed and lived as useful and

•33—-

law-abiding citizens within their respective com
munities, and who by their own hard diligence,
persistence and personal efforts have risen above
a questionable environment to which they may
have been exposed during their formative years.
I cannot accept the premise that this defendant
should be excused his conduct or that such should
be deemed substantially mitigated in its serious
ness because he has not had a father, or because
his family has not been more wealthy, or for any
of the other reasons that have here been expressed
by his counsel.

“In my opinion, he has failed for lack of any
apparent desire to help himself or to emulate
those around him who have been honest, decent
people. Nor does it appear to me, despite the op
portunities that have been given to him for an ef
fective rehabilitation, that he has made any real
or conscientious effort to become so rehabilitated.

“Finally, I have without avail searched and
sought for some indication in this defendant of
remorse, of regret, of self-reproach for his acts,
of any expressed repentance, or of contrition. It is
worthy of note that although . . . [the Youth Au
thority officers] could speak of the social adjust
ment made and the athletic prowess demonstrat
ed by the defendant while institutionalized, the
record is completely barren from their testimony
concerning any show of words or deeds of this
young man evidencing any of the foregoing.

“No more awesome or lonely duty, I am sure,
can be cast upon any individual than that which
this Court is now required to discharge. In the
final analysis I must reach a decision consistent

■34—

with the dictates of my mind and conscience and
heart in accordance with the laws of this state and
my responsibility as a judge. The Court seeks to
be merciful, but also it must be just. That I
feel a compassion and pity for a fellow human
being so young in years is manifest. That I must
also be sorely concerned with the multiple and
aggravated crimes of this defendant against the
victims here involved and, indeed, against society
in general, is self evident. Against the background
of these several considerations I cannot, nor do,
reach any other conclusion or finding than that
the penalty to be imposed should and must be
death.” [R. 4989-92.]

SUMMARY OF ARGUMENT.

The Fifth Amendment, ratified simultaneously with
the Eighth Amendment in 1791, recognized in its ex
press reference to “capital” offenses what had been im
plied in provisions of the Constitution as originally
drafted, that death was among the forms of punish
ment available to the federal government. The fact
that, in the period immediately preceding and following
adoption of the Eighth Amendment, state and federal
constitutional prohibitions against cruel and unusual
punishment coexisted with state and federal enactments
punishing a wide variety of offenses with death, is in
dicative of the intent of the Framers to bar only those
punishments which are both cruel and unusual either
in their inherent form or as grossly excessive in their
application in relation to the seriousness of a particu
lar criminal act. A long line of decisions by this Court
confirms this view of the Eighth Amendment.

This Court’s use of the words “evolving standards
of decency that mark the progress of a maturing so-

— 35—

ciety,” concurrently with an express recognition of the
continued constitutional validity of the death penalty,16
did not sound a talismanic death knell of three hun
dred years of capital punishment in this country. The
deep-rooted history of capital punishment in this country
and in our cultural and religious heritage, and the
widespread support for the death penalty among the
majority of our population and in most segments of
our society, disprove the assertion that the death pen
alty is a barbaric relic of the past. The failure of the
almost annual efforts in the California Legislature
to abolish the death penalty, and the concurrent
expansion of the list of federal and state capital of
fenses, are indicative of the continuing recognition of
the need for the death penalty as a protection for so
ciety.

Petitioner’s preoccupation with the judicially-arrest
ed rate of executions, as an alleged indicator of popular
disfavor with the death penalty, ignores the reality that
a much more accurate barometer of the “evolving stand
ards of decency” is the constant number of defendants
whom juries annually send to the nation’s prison sys
tems under sentence of death.

Most of petitioner’s arguments could more properly
be directed to a legislative body, and respondent is
hard pressed to comprehend how a constitutional issue
is raised by petitioner’s claim that alternative remedies
to capital punishment are available to the state and
federal governments. Respondent does not view its task
as encompassing conclusive proof of the social utility of
capital punishment. The burden, if any, which re
spondent must assume is only to demonstrate that there

wTrop v. Dulles, 356 U.S. 86, 99, 101 (plurality opinion
of Warren, C.J.).

•36—

is in fact a basis upon which the California Legislature
could reasonably conclude that certain serious offenses
should be punishable by death.

There exist obvious flaws in the methodology of the
theoretical studies upon which petitioner relies. On the
other hand there are numerous graphic illustrations of
the deterrent effect of the death penalty collected by
respondent, as well as proof of the inadequacy of
incapacitation by life imprisonment as protection of
society. Thus petitioner has failed to make his case
that no legitimate social aim can be furthered by im
position of the death penalty.

Hard figures from the files of the California State
Prison at San Quentin and other sources put the lie
to the frequently voiced myth that the death penalty
is arbitrarily and discriminatorily imposed upon racial
minorities, the poor, the uneducated, the mentally
deficient, and the “friendless.”

Finally, it is clear on the facts of the present case
that death is not a cruel and unusual punishment for
petitioner, the unrepentant perpetrator of three known
separate murders committed for pecuniary gain
and sexual gratification, as well as numerous other in
stances of violent felonious conduct. The psychiatric and
psychological evidence is unanimous in establishing
that petitioner had no mental disorder and in dem
onstrating that the likelihood of petitioner’s being re
habilitated is very slight. The validity of this con
clusion is further supported by petitioner’s repeated in
carcerations and failures at rehabilitation, and his
statement, while awaiting trial on the present charges,
to a fellow inmate, that he would kill someone else if
he was not released from custody.

—3 7 -

Respondent submits that nothing has happened in
the 180-year history of the Constitution, or in the 300-
year history of capital punishment in this nation, which
can alter the fact of the Framers’ contemplation of the
death penalty as a form of punishment of necessity
available to the States for the protection of society in a
case such as the one at bar.

- 3 8 -

ARGUMENT
Petitioner’s Sentence of Death and Pending Execution,

Resulting From His Conviction of First Degree
Murder, Do Not Comprise Cruel and Unusual
Punishment

A. Execution Is a Form of Punishment Expressly Recognized
by Provisions of the Constitution and Upheld as Constitu
tional in a Long Line of Decisions by This Court

The sole question before this Court, as set forth in
its grant of certiorari, is: “ ‘Does the imposition and
carrying out of the death penalty in this case constitute
cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments?”17

Justice Black defined the nature of the task presently
facing the Court when he noted last Term with refer
ence to procedural attacks on the death penalty:

“The Constitution grants this Court no power to
reverse convictions because of our personal beliefs

, , Our responsibility is rather to determine
whether petitioners have been denied rights ex
pressly or impliedly guaranteed by the Federal Con
stitution as written. . .

McGautha v. California, 402 U.S. 183, 225-26
(Black, J., concurring). See also id., 195-
96, 221-22.

The Constitution as originally18 written contained
only indirect allusions to capital punishment.19

U.S......, 91 S. Ct. 2280.
18The Constitution was adopted by the Constitutional Con

vention in 1787 and ratified by the States in 1788. Legislative
Reference Service, Library of Congress, Constitution of the United
States of America 28-31 (Rev. Ann. ed. 1964).

19Two of the constitutional provisions suggest that the Fram
ers of the original Constitution contemplated capital punishment
as an available form of punishment. Article II, Section 2, gives the

(This footnote is continued on next page)

—39

Among the Constitution’s objectives, as set forth in the
preamble, were to “establish justice, insure domestic
tranquility, provide the common defense, promote the
general welfare, and secure the blessings of liberty to
ourselves and our posterity.” The specification of these
objectives suggests that the Framers intended the new
federal government to have the inherent power of all
governments to decree whatever customary punish
ments for criminal conduct were deemed necessary “to
protect the lives, liberties and property of its citizens,”
In re Kemmler, 136 U.S. 436, 449, absent particular
prohibitions written into the Constitution.'20 Similarly
three years later the Tenth Amendment recognized
that powers not prohibited to the States (or delegated
to the federal government) were reserved to the respec
tive States or to the people.

The first ten Amendments to the Constitution were
proposed by the First Congress and in turn ratified by
the States in 1791. Among these the Fifth Amendment
recognized expressly what had been implied in the afore
mentioned provisions of the original Constitution, that
death was among the forms of punishment, for criminal
conduct, available to the federal government. That
Amendment contains the mandate that “No person

President the “power to grant reprieves,” the latter term being
defined in Black’s Law Dictionary 1466 (4th ed. 1951) as
primarily “ [t]he withdrawing of a sentence of death for an in
terval of time, whereby the execution is suspended,” and secon
darily as “the withdrawing of any sentence for a period of time.”
Article III, section 3, provides in part that “The Congress shall
have power to declare the punishment of treason.” The common
punishment for treason in 1787, and a common one now in
American jurisdictions retaining capital punishment, is death.
Bedau, The Death Penalty in America 6, 43 (rev. ed. 1967).

20Compare the absolute prohibition against bills of attainder
and ex post facto laws and the prohibition against suspension
of the right to habeas corpus except in limited circumstances.
Art. I, § 9.

—40

shall be held to answer for a capital, or otherwise in
famous crime, unless on a presentment or indictment
of a grand jury” and further commands that no per
son “be twice put in jeopardy of life,, without due
process of law. (Emphasis supplied.) The same lan
guage from the due process provision was reenacted
and made applicable to the States in 1868 by the Four
teenth Amendment.

It is in this context that one must evaluate the nebu
lous21 provision of the Eighth Amendment that “Ex
cessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”

One scholarly inquiry into the history of the Eighth
Amendment casts doubt upon the precision with which
the Amendment’s framers selected the prohibition
against “cruel and unusual punishments.” Granucci,
“Nor Cruel and Unusual Punishments Inflicted:” The
Original Meaning, 57 Calif. L. Rev. 839, 840-41 (n.
8) (1969).22 The commentator, quoting from the

21Chief Justice Warren’s opinion in Trop v. Dulles, 356 U.S.
86, 100(n.32), stated: “Whether the word ‘unusual’ has any
qualitative meaning different from ‘cruel’ is not clear. On the
few occasions this Court has had to consider the meaning of the
phrase, precise distinctions between cruelty and unusualness do
not seem to have been drawn.” Commentators have remarked of
the Amendment that “many important points concerning its mean
ing, scope and application are still in doubt.” Note, The Effec
tiveness of the Eighth Amendment: An Appraisal of Cruel and
Unusual Punishment, 36 N.Y.U. L. Rev. 846 (1961).

22“The history of the writing of the first American bills of
rights and constitutions simply does not bear out the presup
position that the process was a diligent or systematic one. Those
documents, which we uncritically exalt, were imitative, deficient,
and irrationally selective. In the glorious act of framing a social
compact expressive of the supreme law, Americans tended simply
to draw up a random catalogue of rights that seemed to satisfy
their urge for a statement of first principles—or for some of
them. That task was executed in a disordered fashion that verged
on ineptness. The inclusion or exclusion of any particular right
neither proved nor disproved its existence in a state’s colonial
history.” Ibid.

—41

meager debate that attended the insertion of this phrase
into Virginia’s constitution of 1776 (which was fol
lowed by the phrase’s appearance in the constitutions
of several other States and the federal Northwest Or
dinance of 1787), the debates of the various state con
ventions called to ratify the federal Constitution, and
the brief discussion of the proposed Eighth Amendment
in the First Congress,23 concludes that “the cruel and
unusual punishments clause was directed at prohibiting
certain methods of punishment.” (Emphasis sup
plied.) Id., 840-42.

The wording of the clause was a verbatim copy of
a prohibition in the English Bill of Rights of 1689.
Id., 840. The commentator makes a convincing showing
that the English antecedent of the Eighth Amendment
was “first, an objection to the imposition of punish
ments which were unauthorized by statutes and out
side the jurisdiction of the sentencing court, and
second, a reiteration of the English policy against dis
proportionate penalties,” and that the framers of the
state constitutions and the American Bill of Rights in
advertently misinterpreted the language of the English
clause as a prohibition against the torturous punish
ments of seventeenth century England.24 Id., 860.

Whether those responsible for the enactment of the
Eighth Amendment were directing their concern against

23This discussion, and portions of the debates of the state con
ventions. are set forth in Weems v. United States, 217 U.S. 349,
368-69,'372.

24At that time the traditional English penalty for women felons
was to be burned alive, which penalty might be commuted to be
heading. Id., 853. The penalty for treason “consisted of draw
ing the condemned man on a cart to the gallows, where he was
hanged by the neck, cut down while still alive, disembowelled
and his bowels burnt before him, and then beheaded and quar
tered.” Id., 854.

•—42—

torturous methods of punishment or instead against un
authorized or disproportionate punishment, the penal
history of England (illustrated in the preceding foot
note) as well as contemporary colonial penal experience
indicate that the Eighth Amendment was not intended
to prohibit the government at that time or any future
time from providing death as a penalty for serious of
fenses.

As Justice Black noted in his concurring opinion in
McGautha v. California, 402 U.S. 183, the Eighth
Amendment’s “words cannot be read to outlaw capital
punishment because that penalty was in common use
and authorized by law here and in the countries from
which our ancestors came at the time the Amendment
was adopted. It is inconceivable . . . that the framers
intended to end capital punishment by the Amend
ment.” Id., 226.

The experience of Massachusetts is a graphic illus
tration of the fact that those who adopted the consti
tutional prohibition against cruel and unusual punish
ment had absolutely no intent thereby to abolish the
death penalty for all offenses. The Constitution of the
Commonwealth of Massachusetts, approved by the
people in 1780, declared that “no magistrate or court
of law, shall . . . inflict cruel or unusual punishments.”
Within four years the Commonwealth saw fit “to place
upon the statute books of the new government seven
laws that called for the penalty of death that seemed
to the General Court, at the end of the eighteenth
century and at the beginning of the nineteenth century,
to constitute the most serious threats to the peace and
welfare of the state.” Powers, Crime and Punishment
in Early Massachusetts 308-09, 608-09 (1966). These
seven capital offenses, which represented a reduction

—43

from fourteen capital offenses in effect in the immedi
ately preceding period,25 comprised wilful murder,
treason, sodomy, rape, arson, robbery, and burglary.
id., 309.

The following chronology as well clearly refutes the
theory that those who enacted the Eighth Amendment
intended thereby to abolish capital punishment. The
Amendment passed the First Congress on September
25, 1789. That same Congress, a mere seven months
later, enacted An Act for the Punishment of Certain
Crimes Against the United States, which statute made
the following offenses punishable by death by hanging:
treason, murder within federal territory, piracy, and
counterfeiting of public securities. Act of April 30,
1790, ch. 9, §§ 1, 3, 8, 14, 33, 1 Stat. 112. The
Eighth Amendment was ratified by the States on De
cember 15, 1791, and less than four months later, on
April 2, 1792, the Second Congress made it a capital
offense to debase coins of the United States Mint.
Act of April 2, 1792, ch. 16, § 19, 1 Stat. 246.2e

The subsequent history of the Eighth Amendment,
as it has been interpreted by this Court in the 180 years
of the provision’s existence, likewise lends no support

25During the period 1630 to 1692 the Bay Colony had twenty-
five capital laws, although persons were executed only for viola
tion of nine of them: murder, treason, beastiality, adultery, rape,
arson, witchcraft, defiance by Quakers, and piracy. Id., 287.

26“The constitutions of 48 states contain some provision
against excessive punishment; wording of the prohibitions varies
from ‘cruel and unusual’ to ‘cruel or unusual’ or simply ‘cruel,’
while a few state constitutions provide that penalties shall be
proportioned to the nature or character of the offense. Connec
ticut and Vermont have no constitutional prohibition, but Conn.
Gen. Stat. Ann. § 53-20 (1960) makes cruel or unlawful punish
ment a crime. With respect to the law of Vermont, see Vt. Stat.
Ann. tit. 1, § 271 (1959), incorporating into local law the com-

(This footnote is continued on next page)

for petitioner’s claim that the death penalty is unconsti
tutional when carried out without unnecessary cruelty
as punishment for a serious offense such as murder.

Former Justice Goldberg of this Court has noted
with reference to this Court’s treatment of the Eighth
Amendment’s prohibition against cruel and unusual
punishment:

“Indeed, the clause has been substantially dis
cussed—either by members of the majority or the
dissent on the Court—on only ten occasions. Only
three decisions since the adoption of the Bill of
Rights have interfered with a government’s choice
of punishments, and in only one of those were
five Justices willing to invoke the clause. . . .”
(Footnotes omitted.) Goldberg & Dershowitz,
Declaring the Death Penalty Unconstitutional, 83
Harv. L. Rev. 1773, 1777-78 (1970).

It was not until 1878 that this Court, in Wilkerson
v. Utah, 99 U.S. 130, had occasion to discuss at any
length the meaning of the constitutional prohibition
against cruel and unusual punishment. In that case the
Court upheld the mode of execution (shooting) as not
forbidden by the Constitution’s prohibition against
cruel and unusual punishment, id., 134-35, noting the

mon law of England, which in turn prohibits cruel and unusual
punishment. . . . See also Vt. Const, ch. 1, art. 18, which im
pliedly restrains the legislature and courts in this regard.” Note,
The Effectiveness of the Eighth Amendment: An Appraisal of
Cruel and Unusual Punishment, 36 N.Y.U. L. Rev. 846, 847
(n.7) (1961). See also Legislative Drafting Research Fund,
Columbia University, Index Digest of State Constitutions 343
(2d ed. 1959) and 1958-1964 Supp. at 71. California’s provi
sion states, “nor shall cruel or unusual punishments be inflicted.”
Cal. Const, art. I, § 6. Concurrently 41 States today retain the
death penalty. U.S. Bureau of Prisons, National Prisoner Statis
tics Bulletin: Capital Punishment 1930-1968 (August, 1969)
at 30 (table 15).

45-

“difficulty” in defining “the extent of the constitutional
provision” but the applicability of the provision to
“punishments of torture . . . and all others [involving]
unnecessary cruelty.” Id., 136.

In 1890, the Court denied an application for writ of
habeas corpus sought on an allegation that death by
electrocution constituted a cruel and unusual punish
ment. In re Kemmler, 136 U.S. 436. The Court denied
the application on the ground that the Eighth Amend
ment did not apply to state legislation, but added the
comment:

“Punishments are cruel when they involve torture
or a lingering death; but the punishment of death
is not cruel, within the meaning of that word as
used in the Constitution. It implies there something
inhuman and barbarous, something more than
the mere extinguishment of life.,, (Emphasis sup
plied.) Id., 447.

In Weems v. United States, 217 U.S. 349, the Court,
in 1910, for the first time overturned a punishment as
cruel and unusual. In that case the defendant, upon
conviction of falsifying an official document, had been
sentenced to fifteen years of hard and painful labor
to be served in wrist and ankle chains, with attendant
life-long disabilities and a severe fine. Id., 358, 364-65.
The case arose under the Philippine Bill of Rights,
whose prohibition against the “infliction of cruel and
unusual punishment, was taken from the Constitution
of the United States and must have the same mean
ing.” Id., 367.

The Court was not troubled by the circumstance that
the punishment was somewhat novel in the context of
the type of punishment to which the cruel and unusual

—46

punishment clause was thought to apply, noting that
the clause, like all principles, “to be vital must be
capable of wider application than the mischief which
gave it birth.” Id., 373.

Quoting Cooley’s Constitutional Limitations, the
Court stated that it was probable that “ ‘any punish
ment declared by statute for an offense which was
punishable the same way at common law could not be
regarded as cruel or unusual, in a constitutional sense.’ ”
Id., 375.

In setting aside the punishment, the Court in
Weems noted that “ [t]here are degrees of homicide
that are not punished so severely,” id., 380, and that
the statute in question had no parallel in American
legislation and came from a government of different
origins. Id., 377. The Court found the statute “cruel in
its excess of imprisonment and that which accompanies
and follows imprisonment. It is unusual in its char
acter. Its punishments come under the condemnation
of the bill of rights, both on account of their degree
and kind.” Ibid.

The 1947 case of Francis v. Resweber, 329 U.S.
459, presented the issue whether a pending second elec
trocution of a condemned murderer, following an un
successful first attempt at execution, constituted cruel
and unusual punishment. The Court rejected the claim
of unconstitutional punishment. In an opinion joined
by three other members of the Court, Justice Reed in
announcing the judgment of the Court discussed the
issue “under the assumption, but without so deciding,”
that a violation of the Eighth Amendment would be
violative of the Fourteenth Amendment’s due process
clause. Id., 462. The opinion concluded:

—47

“We find nothing in what took place here which
amounts to cruel and unusual punishment in th
constitutional sense. . . . The traditional humanity
of modern Anglo-American law forbids the in
fliction of unnecessary pain in the execution of the
death sentence. Prohibition against the wanton
infliction of pain has come into our law from the
Bill of Rights of 1688. The identical words appear
in our Eighth Amendment. The Fourteenth would
prohibit by its due process clause execution by a
state in a cruel manner. . . .
“. . . The cruelty against which the Constitution
protects a convicted man is cruelty inherent in the
method of punishment, not the necessary suffer
ing involved in any method employed to extinguish
life humanely. . . .” (Emphasis supplied.) Id...
463-64.

The next occasion on which this Court examined
the scope of the Eighth Amendment’s prohibition
against cruel and unusual punishment was in 1958,
in the case of Trop v. Dulles, 356 U.S. 86, where Chief
Justice Warren, joined by three other members of the
Court, concluded that denationalization of a native-
born citizen for less than one day’s desertion from
military duty constituted unconstitutional punishment.
Justice Brennan found the enactment of such punish
ment beyond the power of Congress to legislate, and
four justices rejected both of these theories and would
have upheld the statute upon which denationalization
was premised.

Chief Justice Warren’s opinion noted initially, “Since
wartime desertion is punishable by death, there can
be no argument that the penalty of denationalization
is excessive in relation to the gravity of the crime.”

— 48—

Id., 99. Cf. Williams v. Oklahoma, 358 U.S. 576,
586-87.

While recognizing that the phrase cruel and unusual
punishment was not precise, the opinion clarified the
scope of the constitutional prohibition against such
punishment by stating, “Fines, imprisonment and even
execution may be imposed depending upon the enor
mity of the crime, but any technique outside the
bounds of these traditional penalties is constitutionally
suspect.” (Emphasis supplied.) Trap v. Dulles, supra
at 100. Thus the penalty in Weems was characterized
as meeting the two-prong test of being “cruel in its
excessiveness and unusual in its character,” id., as was
the penalty in the case then before the Court. Stating
that the Eighth Amendment “must draw its meaning
from the evolving standards of decency that mark the
progress of a maturing society,” Chief Justice Warren
concluded that denationalization, under the circum
stances before the Court, constituted “a form of punish
ment more primitive than torture.” Id., 101.

Significantly, Chief Justice Warren’s opinion stated:
“At the outset, let us put to one side the death

penalty as an index of the constitutional limit on
punishment. Whatever the arguments may be
against capital punishment, both on moral
grounds and in terms of accomplishing the pur
poses of punishment—and they are forceful—the
death penalty has been employed throughout our
history, and, in a day when it is still widely ac
cepted, it cannot be said to violate the constitu
tional concept of cruelty. . . .” Id., 99.

Thus the opinion, while recognizing “forceful” legis
lative arguments against the death penalty, rejected the

—49—

constitutional argument against that form of punish
ment.

Any doubt whether the Eighth Amendment’s ban on
cruel and unusual punishment applies to the States,
through the operation of the Fourteenth Amendment,
was dispelled in 1962 by the decision in Robinson v.
California, 370 U.S. 660, invalidating punishment of
imprisonment imposed on the defendant by reason
of his being found to be addicted to narcotics.

The Court’s opinion focused not on the nature of
the punishment (ninety days in county jail), but on its
inappropriateness as applied to a status, that of being a
narcotic addict. Id., 667.27

In 1968 this Court refused to extend its ruling in
Robinson to the punishment (by fine of $50) of a de
fendant convicted of the crime of being intoxicated in
a public place, Powell v. Texas, 392 U.S. 514, the
plurality opinion of the Court distinguishing the punish
ing of status, involved in Robinson, from the punishing
of the uncompelled act before the Court in Powell.
Id., 532-33.

If the decisions of this Court applying the cruel and
unusual punishment clause are susceptible of synthesiza-
tion into a consistent body of principles, the cases ap-

27“To be sure, imprisonment for ninety days is not, in the
abstract, a punishment which is either cruel or unusual. But
the question cannot be answered in the abstract. Even one day
in prison would be a cruel and unusual punishment for the
‘crime’ of having a common cold.” (Emphasis supplied.) Id.
“A punishment out of all proportion to the offense may bring it
within the ban against ‘cruel and unusual punishments.’ . . .
[T]he principle that would deny power to exact capital punish
ment for a petty crime would also deny power to punish a per
son by fine or imprisonment for being sick.” (Emphasis sup
plied.) Id., 676 (Douglas, J., concurring). “Cruel and unusual
punishment results not from confinement, but from convicting
the addict of a crime.” Ibid.

-5 0 -

pear to stand for the following propositions. Punish
ment will be held unconstitutional if it is both cruel
and unusual either as (1) a punishment inherently
cruel and inherently unusual in its form, or (2) a pun
ishment not inherently cruel and unusual but grossly
excessive as applied (a) in relation to the seriousness
of a particular criminal act or (b) to any status which
does not involve an uncompelled act.

Imposition of the death penalty for wilful homicide,
in the present case first degree murder, clearly passes
muster under the foregoing principles. Execution by
means (such as the administration of lethal gas, here
involved) which do not cause unnecessary pain or suf
fering is not an inherently cruel and unusual form of
punishment.28

The method by which the punishment of death is
effected in California is commonly recognized as more
humane than the methods in use at the time the
Eighth Amendment was adopted and appears to be
frequently less cruel and painful than the death by
natural causes that comes eventually to us all.29 And
the common use of the death penalty in this country,
from the seventeenth century to the present, as indicat
ed previously herein and at greater length in the pages
that follow, renders the supreme penalty anything but
“unusual.”

Assuming then the validity of the death penalty as a
form of punishment not intrinsically cruel and unusual

28Francis v. Resweber, 329 U.S. 459, 463-64 (second at
tempt at electrocution); In re Kemmler, 136 U.S. 436, 447-49
(electrocution); Wilkerson v. Utah, 99 U.S. 130, 134-35 (shoot
ing); In re Anderson, 69 Cal. 2d 613, 629-32 [447 P,2d 117,
128-30] (1968) (lethal gas).

wSee People v. Daugherty, 40 Cal. 2d 876, 894-96 [256
P.2d 911, 922-23] (1953), cert, denied, 346 U.S. 827.

-51-

in its form, a remaining question is whether the penalty
is unconstitutional under the foregoing principles as
excessive in its application to first degree murderers,
such as petitioner. The negative answer to this ques
tion need not be belabored since petitioner’s offenses
indisputably involved overt criminal conduct rather than
status, and since, as petitioner concedes, if the death
penalty may constitutionally be imposed for any civil
ian, peacetime crime, it can properly be imposed upon
petitioner for first degree murder. (Pet. Br. p. 5.)

B. Capital Punishment Is Widely Accepted and Used in Ameri
can Society and Comports With Contemporary “Standards
of Decency”

Despite the relatively precise showing required by
this Court, under the principles previously discussed,
as justification for overturning an imposed punishment
as cruel and unusual, something this Court has done in
only three extreme situations in its history,30 petitioner
and amici have seized upon some of the language of the
plurality opinion in Trop v. Dulles, 356 U.S. 86, as
proof that that decision signaled the end of the right
of the people of the various States to prescribe death
as the punishment for first degree murder.

Almost ignoring the fact that the opinion in ques
tion went out: of its way to recognize the continued
constitutional validity of the death penalty, id., 99,
petitioner prophesizes that the use of the words “evolv
ing standards of decency that mark the progress of a

30Robinson v. California, 370 U.S. 660 (punishing of status
as narcotic addict); Trop v. Dulles, 356 U.S. 86 (punishment of
denationalization, opinion of four members of the Court); and
Weems v. United States, 217 U.S. 349 (punishment blatantly
cruel and unusual both in the severity of its form and in its
excessiveness in relation to the particular offense).

•52-

maturing society,” id., 101, sounded a talismanic death
knell of three hundred years of capital punishment in
this country. However, in all fairness to petitioner, his
fixation with this phrase is understandable in view of
its providing the only arguable escape from the his
torical reality of capital punishment’s recognition as a
legitimate penalty, outside the scope of cruel and un
usual punishment, in the wording of the Constitution
and in the law that preceded and followed adoption
of that document and the Bill of Rights.

In his attempt “to avoid the impact of this his
tory,”31 petitioner has failed to demonstrate that any
thing that has transpired in the last thirteen years has
impugned the validity of the observation, in 1958, that
the death penalty “in a day when it is still widely ac
cepted . . . cannot be said to violate the constitutional
concept of cruelty.” Trop v. Dulles, 356 U.S. 86, 99
(plurality opinion of Warren, C.J.).

The history of capital punishment in this country,
and the deep-rooted origins of that form of punishment
in the religious and moral heritage of contemporary
Americans, provide clear indications that the death
penalty is no barbaric relic of the past.

The history of the death penalty is as old as the his
tory of man himself. Records of death as a punishment
ordered by the state go back to ancient China, As
syria and early Egypt (as far back as 1500 B.C.), and
the Greeks. The first record of capital punishment in
England is from 450 B.C. Laurence, A History of
Capital Punishment 1-2 (1932).

The reliance of some of amici on biblical references
and religious principles, in support of their assertion

slMcGautha v. California, 402 U.S. 183, 203.

—53
that the death penalty is immoral and unjustified, is
particularly inappropriate in light of the Old Testa
ment’s repeated recognition of the death penalty as a
proper form of punishment. These references indicate a
clear distinction between the sin of an individual’s tak
ing life and the right of the State to take the life of a
murderer for the protection of society. Thus the Sixth
Commandment, “Thou shalt not kill” (Holy Bible, Au
thorized King James Version, Exodus 20:13), is preced
ed by the admonition, “Whoso sheddeth man’s blood,
by man shall his blood be shed” {id., Genesis 9:6),
and followed by numerous other references justifying
the death penalty for murder,32 including the decree,
“He that smiteth a man, so that he die, shall be surely
put to death.” (Id., Exodus 21:12.) The New Testa
ment as well contains references to the death penalty
for murder.33

With reference to the Church’s attitude toward the
death penalty during the Middle Ages, a religious
scholar has written in a Catholic periodical published
in Los Angeles:

“ [Individual Popes, theologians and councils of
the Church have explicitly approved of it at dif
ferent periods of history.

“Pope Innocent the Third (1198-1216 A.D.)
. . . reiterated this right. ‘The secular power can
inflict the death penalty,’ the Pope remarked, ‘with
out grievous sin.’ (Denzinger, Enchridion No.
425).

■ 32/c/., Leviticus 24:17, 21; Numbers 35:16-18, 30-31; Deuter
onomy 19:11-12.

8SId., St. Matthew 5:21-22, 26:52; St. John 19:10-11; Acts
25:11; Romans 13:1-4; Revelation 13:10.

—54—

“And the Catechism of the Council of Trent
observes that the state in executing this right is
‘not only not guilty of murder, but eminently fol
lows the law (the Fifth Commandment) which
prohibits murder.’ (Catechism of the Council of
Trent, Part 3, Chap. 6, Q. 4).” The Tidings (Feb
ruary 13, 1959), p. 9.

The writings of other religious authorities confirm the
fact that capital punishment is consistent with our
Christian heritage. In the fifth century St. Augustine
wrote “of the cases in which we may put men to death
without incurring the guilt of murder.” St. Augustine,
City of God 27 [Book I, ch. 21] (Mod. Library ed.
1950). In the thirteenth century St. Thomas Aquinas
wrote of the justification for the death penalty as a
form of punishment. 2 Basic Writings of Sf. Thomas
Aquinas 712 [Q. 87, Art. 3], 843-44 [Q. 100, Art.
8] (Pegis ed. 1945). Reference to philosophers (Pla
to, Pascal, Locke, Kant, Montesquieu, Rousseau), who
over the centuries have written in support of the
death penalty, are quoted in Allen, Capital Punish
ment: A Matter of Human and Divine Justice, The
Police Chief, vol. 27 (March, 1960) at 1.

Despite the position that the foregoing religious and
philosophical authorities occupied in the heritage of
the Framers of the Constitution, and the bearing that
they continue to have on our present-day beliefs and
practices, petitioner implies that it is only police of
ficers and prosecutors, presumably vengeful and out of
step with “the evolving standards of decency that mark
the progress of a maturing society,”34 who are in favor
of the death penalty today. (Pet. Br. 43.)

SiTrop v. Dulles, 356 U.S. 86, 101.

—55—
There are innumerable indicia of the general public’s

continued acceptance of the death penalty as a neces
sary form of punishment consistent with contemporary
religious and moral standards of decency and the dig
nity of man.

Respondent wishes to emphasize its position that the
meaning of the cruel and unusual punishment clause
cannot expand and contract with the ebb and flow
of something as fickle as public opinion as reflected in
polls and surveys. Nevertheless since opponents of the
death penalty have relied on such indicators in sup
port of their contention that the death penalty is out of
favor with all but the police, prosecutors, and a few
misguided others, respondent feels compelled to put the
lie to this contention. Public sentiment has swung
strongly in favor of the death penalty since this Court,
citing a 1966 Gallup Poll, characterized the United
States as a “nation less than half of whose people be
lieve in the death penalty.” Witherspoon v. Illinois,
391 U.S. 510, 520. The most recent Gallup Poll and
California Poll indicate the following attitudes of the
public.

—56—

TABLE A

Public Opinion Polls on the Death Penalty
California36

Retain
Captital

Punishment

Abolish
Captital

Punishment
Qualified or
No Opinion

1971 (August) 58% 34% 8%
1969 65% 26% 9%
1966 54% 30% 16%
1965 51% 39% 10%
1960 55% 35% 10%

United States36
1969 51% 40% 9%
1966 42% 47% 11%
1965 45% 43% 12%
1960 51% 36% 13%

The most recent large-scale expression of public opin
ion, of which respondent is aware, occurred on Decem-

85The 1960-1969 figures are taken from Field Research Cor
poration, The California Poll (Release No. 635, May 22, 1969).
The question posed to a “representative sample of Californians,
numbering 1,011, in a survey taken early this month was the
same one which has been asked of other representative samples
over the years: ‘As you know, this state has capital punishment—
that is, execution— as a form of punishment for criminals. How
do you personally feel about capital punishment—would you be
in favor of doing away with the death sentence, or do you feel
that the death sentence should be kept as a punishment for
serious crimes, as it is now?’ ” Ibid. These figures are also re
produced in Erskine, The Polls: Capital Punishment, 34 Pub.
Op. Q. 290, 295 (1970). The 1971 results, based on a sampling
of the opinion of 508 persons, are taken from Field Research
Corporation, The California Poll (Release No. 726, September
14, 1971).

88Gallup International Inc., Gallup Opinion Index 15-16 (Re
port No. 45, March, 1969). The question posed to “a minimum
of 1,500 adults” approximately “2 or 3 weeks prior to publica
tion,” was “are you in favor of the death penalty for persons
convicted of murder?” Ibid. The results of this poll are reproduced
in Erskine, The Polls: Capital Punishment, 34 Pub. Op. Q. 290,
291-94 (1970).

—57—

ber 15, 1970, when the voters of the State of Illinois,
in conjunction with a vote on whether to ratify the new
constitution adopted by their constitutional convention,
were asked to ballot as to whether the death penalty
should be abolished in that jurisdiction. The following
referendum results with respect to the latter question
are probably a good indication of national sentiment
in view of Illinois’ position as a large State having sub
stantial metropolitan and rural populations.

TABLE B

December 1970 Illinois Referendum on Whether
to Abolish the Death Penalty37

Votes Percentag

Yes 676,302 35.7%
No 1,218,791 64.3%
Total 1,895,093 100%

The large majority of persons convinced of the need
for capital punishment in America in recent years re
flects a cross-section of the nation’s population.38 At
the height of the unsuccessful campaign to abolish the
death penalty in California, in the late 1950’s and
early 1960’s, a Committee to Oppose Abolition of Cap
ital Punishment was formed “to include in our numbers
the vast majority of citizens who feel the abolition of
the death penalty cannot serve the better interests of
the California community.”33 Undoubtedly retail
clerks, grocery and liquor store operators, pharmacists,
bank tellers, gas station attendants, and others who like

37Illinois Secretary of State, Constitution of the State of Illi
nois and United States 13, 15 (1971).

38This proposition is supported by the reported breakdown
of the figures produced in the national poll cited in n. 36, infra.

39Los Angeles Times, Part I, p. 8 (Feb. 14, 1959).

■58-

police officers have frequent occasion to look down
the “business end” of a robber’s pistol or shotgun,
do not share petitioner’s sentiment that the death pen
alty is a barbaric relic of the past. And a recent meeting
of the International Federation of Airline Pilots’ Asso
ciations in London demanded the death penalty for
airplane hijackers.40

Even the religious community is divided on the issue
of capital punishment. At least two ministers have gone
before California legislative committees to testify in
favor of the death penalty, one of them a former
chaplain at California’s Folsom Prison,41 and the 1967
biennial governing convention of the 2.8-million-member
Lutheran Church Missouri Synod adopted a resolution
stating, “ ‘Capital punishment is in accord with the
Holy Scriptures and the Lutheran confessions.’ ”42 The
Associate Executive of the United Presbyterian Church
in the United States has written in favor of capital
punishment,43 as have representatives of the Catholic

MId., Part I, p. 20 (Dec. 18, 1969).
41 Id., Part I, p. 1 (Aug. 10, 1963); Id., Part I, p. 5 (June

3, 1963). Representatives of the Protestant, Catholic, and Jewish
faiths testified in favor of the death penalty in Florida. Florida
Special Comm’n for the Study of Abolition of Death Penalty in
Capital Cases, Report 31 (1965).

43Los Angeles Times, Part III, p. 8 (July 15, 1967).
43Vellenga, Christianity and the Death Penalty, in Bedau, The

Death Penalty in America (rev. ed. 1967) 123, 129, reprinted
from Is Capital Punishment Wrong?, Christianity Today, vol.
IV, no. 1 (October 12, 1959), at 7-9: “No one can deny that
the execution of a murder is a horrible spectacle. But we
must not forget that murder is more horrible. . . . The law of
capital punishment must stand as a silent but powerful witness
to the sacredness of God-given life. Words are not enough to
show that life is sacred. Active justice must be administered
when the sacredness of life is violated.”

—5 9 -

Church44 and noted contemporary scholars and phi
losophers.46

The death penalty is also favored by those who have
the most extensive contact with the criminal element,
law enforcement46 and correctional officers.47 Signifi
cantly, on September 14, 1971, the Conference of Dele
gates of the State Bar of California voted to support
the retention of capital punishment, reversing its
stand of two years earlier.48

In short, contrary to the impression that peti
tioner seeks to convey, there appears to be substantial
support for the death penalty in almost all social, eco-

44E.g., Father John V. Sheridan in The Tidings, supra at
9 (February 13, 1959).

*6E.g., Jacques Barzun, Dean of Faculties and Provost of
Columbia University, in Barzun, In Favor of Capital Punish
ment, in Bedau, The Death Penalty in America (rev. ed. 1967)
154, reprinted from The American Scholar, vol. 31, no. 2 (Spring
1962), at 181-91; and Sidney Hook, Professor of Philosophy
and Chairman of the Graduate Philosophy Department at New
York University, in Hook, The Death Sentence, id., at 146, re
printed from The New Leader, vol. 44 (April 3, 1961) at
18-20.

i6E.g., J. Edgar Hoover, Statements in Favor of the Death
Penalty, id., 130, reprinted from law enforcement publications;
and the Chief of Police of Santa Ana, California, writing in
Allen, Capital Punishment: Your Protection and Mine, id., at
135, reprinted from The Police Chief, vol. 27 (June, I960) at
22, the official publication of the International Association of
Chiefs of Police; Allen, Capital Punishment: A Matter of Human
and Divine Justice, The Police Chief, vol. 27 (March, 1960)
at 1. Associations of peace officers and district attorneys again
opposed abolition of the death penalty before the California
Legislature this year. Los Angeles Times, Part I, pp. 3 24
(June 23, 1971).

41E.g., The Prison Officers Assn, of Great Britain has de
manded the return of the death penalty, stating that “since aboli
tion of capital punishment . . ., ‘There is nothing to deter the
growing number of long-term criminals from killing prison officers
in an attempt to escape.’ ” Los Angeles Times, Part I, P 21
(Nov. 16, 1966).

48Los Angeles Times, Part I, p. 1 (September 15, 1971).

— 60—

nomic, and occupational groups, and indeed the pre
ponderance of public opinion is in favor of retaining
the death penalty as one of the alternative forms of
punishment available for serious offenses.

Thus it is highly misleading for amicus curiae the
American Civil Liberties Union to quote from only
selected portions of the transcript of a trial (in which
one of counsel for such amicus appeared as counsel
of record), without reference to any of the contrary
testimony, in an effort to convey the impression that
the evidence at such proceedings establishes the un-
constitutionality of the death penalty. That evidence,
which was never before the state courts at trial or on
appeal in the present case, is extensively referred to
throughout the brief of amicus.49

Thus while respondent deems it inappropriate to
argue the evidence presented in that collateral proceed
ing,50 the following information is conveyed in order
to correct the misimpression created by amicus. In
addition to the ten defense witnesses who appeared be
fore the trial court at the hearing to determine the
constitutionality of the death penalty, fifteen prosecu
tion witnesses appeared and testified in support of
capital punishment. These supporters of capital punish
ment included a Presbyterian minister (who as a former
correctional officer at San Quentin had witnessed
executions and been on duty on Death Row), a

49 At pp. 8-9, 14, 15(n.l0), 17-18(n.27), 19(n.28), 20
(n.34), 21-22(nn.35, 36), 24-28, 29(n.46), 31, 35-37, 44(n.
61) and the entire Appendix A to said brief (pp. la through
58a).

50People v. Thornton, Los Angeles Superior Court No, 328-
445, presently pending before the California Supreme Court.

- 6 1 -

Catholic priest, a psychiatrist, an eminent professor of
law, a defense attorney formerly against the death
penalty who previously as a deputy district attorney
had prosecuted a robber who had moved his operations
to a non-death-penalty State because of fear of that
punishment, a state senator, a state assemblyman, two
chiefs of police, a chief of detectives, a former deputy
sheriff who heard two criminal suspects tell a news
reporter that fear of the death penalty had kept them
from killing the arresting officers, an undercover officer
who overheard a criminal (unaware of the officer’s
identity) advise a cohort not to murder because there
was the risk of the death penalty, the wife of a grocery
store owner who heard a robber make a similar state
ment to a cohort during the course of a holdup, a
former president of the county medical association
whose colleague had a similar experience, and the
present warden of San Quentin Prison who testified
as to death row inmates receiving meals superior to
those given the general prison population, and regard
ing other favorable aspects of the living arrangements
on death row, the general opinion of prison personnel
that their work would be almost impossible without
the death penalty, and the request (granted) of a non
capital inmate upon his release to be shown the gas
chamber as a reminder never to commit murder. Upon
the conclusion of the foregoing proceedings the trial
court made findings of fact and stated conclusions of
law rejecting the position of amicus.

The popular sentiment in favor of the death penalty
as a necessary form of punishment is reflected in the
number of American jurisdictions retaining the supreme
penalty: the federal government, the District of Colum
bia and forty-one of the fifty States (eight of which

-62-

experimented for varying periods with abolition of the
death penalty, only to restore it, Delaware as recently
as 1961).51

In California, at least, the introduction and defeat of
a bill to abolish the death penalty has become an
almost annual ritual. Such a bill was again defeated
by the Legislature in 1970.52 In contrast a new capital
offense was added to the California Penal Code in
1970,53 and bills are before the 1971 California Legisla
ture which would add additional capital offenses.54
After extensive study, the staff of a California legisla
tive committee has recommended that a revised penal
code retain capital punishment.55 And two additional
federal capital offenses were enacted as recently as
1965 and 1961.56

51U.S. Bureau of Prisons, National Prisoner Statistics Bulle
tin: Capital Punishment 1930-1968 (August, 1969) at 30 (Table
15).

52California Legislature, Final Calendar of Legislative Busi
ness: Regular Session 1970, Assembly Final FTistory 52 (Bill 20).
See also People v. Love, 56 Cal.2d 720, 737-38 1366 P. 2d
33,42] (1961) (McComb, J., dissenting).

53Section 12310, explosion or ignition of a destructive device
or explosive causing mayhem or great bodily injury.

54Assembly Bill 619 would make it a capital offense to as
sault a peace officer or fireman and thereby proximately cause
his death. Assembly Bill 1525 would make it a capital offense
to kidnap any elected public officer. Senate Bill 112, passed by
the Senate and sent to the Assembly, would provide for an auto
matic finding of first degree murder for any person convicted of
committing murder of a peace officer. California Legislature,
Legislative Index (August 17, 1971); California Legislature,
Senate Weekly History (September 17, 1971).

55State of California, Joint Legislative Committee for Revi
sion of the Penal Code, The Criminal Code 8315(a)(1) (Staff
Draft) 18-19 (1971).

5618 U.S.C. § 1751 (assassination of the President, Vice
President or other officer in the line of succession); 49 U.S.C.
§ 1472(i) (aircraft piracy).

It is ridiculous for petitioner and amici to focus
upon the small number of executions in recent years
as an indicator of declining popular acceptance of the
death penalty, when it is common knowledge that these
figures are the result of reversals and stays of execution
granted by state57 and federal courts, including this
Court, during the pendency of various legal challenges
to the death penalty made in cases such as Maxwell v.
Bishop, 398 U.S. 262; McGautha v. California, 402
U.S. 183, and the case at bar.

A much more accurate barometer of the “evolving
standards of decency that mark the progress of a ma
turing society”58 is the constant number of defend
ants whom juries annually send to the nation’s prison
systems under sentence of death, as indicated in the fol
lowing figures. j °

57 See, e.g., People v. Goodridge, 70 Cal. 2d 824, 839 [452
P. 2d 637, 646] (1969): “Although defendant had not chal
lenged the constitutionality of the death penalty, this court de
layed filing its opinion in this case until that question was re
solved in In re Anderson, 69 Cal.2d 613 [. . . 447 P,2d
117]. This court further delayed action in all pending automatic
appeals to permit defendants to challenge the composition of the
jury following Witherspoon v. Illinois, 391 U.S. 510. . .

58Trop v. Dulles, 356 U.S. 86, 101 (plurality opinion of
Warren, C.J.).

- 6 4 -

t a b l e c

Number of Prisoners Received in Prison Under Death Sentence

California59 United States60

1970 36 —

1969 14 ■ —

1968 27 102
1967 20 85
1966 27 118
1965 22 86
1964 19 106
1963 24 93
1962 21 103
1961 20 140

The foregoing figures with respect to the imposition
of capital punishment are hardly indicative of “ex
treme contemporary rarity resulting from a demonstrat-
able historical movement which can only be interpreted
fairly as a mounting and today virtually universal re
pudiation.” (Pet. Br. p. 12.)

Respondent questions, and fails to perceive the rele
vancy of, petitioner’s assertion that “there is evident a
definite, continuing, long-term, accelerating, worldwide

59California Department of Corrections, California Prisoners
1968 (June, 1969), at 92 (Table 35) (the latest edition of this
publication available at the present time). The 1969 and 1970
figures are statistics from the files of the Department destined
for publication in the next two editions.

60U.S. Bureau of Prisons, National Prisoner Statistics Bulle
tin: Capital Punishment 1930-1968 (August, 1969) at 12 (Table
4) (the latest edition of this publication available at the present
time).

—65

trend toward ending the use of the penalty of death.”01
(Pet. Br. 4e.) That is a frail foundation upon which
to postulate the unconstitutionality of the death pen
alty. This Court’s interpretation in 1971 of what the
Framers of the Eighth Amendment had in mind in
1789 can hardly be affected by petitioner’s characteriza
tion of Liechtenstein, Luxembourg, Nicaragua, and
Surinam as having de facto abolished the death penalty.
(Pet. Br. 2e.) Suffice it to say that (1) the total
number of nations which are abolitionist de jure or
de facto represents a distinct minority in the world
community,62 (2) the conditions that lead a jurisdic
tion to conclude that a particular punishment is or is
not required for the protection of its populace vary
from nation to nation,63 as they vary from State to
State within our own federal republic, and (3) peti
tioner has not pointed to any abolitionist nation which
has TcjecEd the death penalty by judicial declaration
of unconstitutionality. In any event, “ [o]n the evidence

81“A trend requires a base, and movement from it. . . . Inspec
tion of the cited data reveals, however, no base and no move
ment, only a description of the present legislative situation. . . .
[I]f, as appears to be true, for a number of years the situation
has been relatively stable, . . . then it is hard to see how ‘evolv
ing standards of decency’ . . . can be said to be violated.”
Packer, Comment, Making the Punishment Fit the Crime, 77
Harv. L. Rev. 1071, 1073-74 (1964).

e2United Nations, Department of Economic and Social Af
fairs, Capital Punishment 9-11, 83-85 (1968). Included among
the nations retaining the death penalty are countries as civilized
as ours (e.g., France, Spain, Australia, and Japan). Id., 9,
83.

68Compare the following remarks of one of the justices who
acquitted seven persons in Papua-New Guinea this year of a
charge of cannibalism: “ [Cjannibalism was not improper or in
decent in the men’s community. One cannot conceive that the
legislature would have intended to impose uniform standards of
decency and propriety on all the peoples of this country.” Los
Angeles Times, Part I, p. 15 (Aug. 12, 1971).

— 66—

available it does not appear that this is a case for due
process by head count.”64

If indeed the “relevant Eighth Amendment touch
stone is the judgment of enlightened public opinion”
(Pet. Br. 24(n.40)), then what more enlightened assem
blage could there be than the twelve jurors in the
hundreds of pending capital cases who on the basis of
the evidence presented to them in court solemnly exer
cised their judgment on the ultimate question whether
the defendant was “fit to live.”85 As this Court has
recognized, “one of the most important functions any
jury can perform in making such a selection is to main
tain a link between contemporary community values
and the penal system.” Witherspoon v. Illinois, 391
U.S. 510, 519(n. 15). “In our criminal courts the jury
sits as the representative of the community; its voice
is that of the society against which the crime was com
mitted.” Williams v. New York, 337 U.S. 241, 253
(Murphy, J., dissenting).

The specter often raised of a wholesale bloodbath
in the event all of the 600 to 700 prisoners under sen
tence of death were to be executed in the coming year
is first of all irrelevant to a constitutional determina
tion of whether the States remain free to decree that
alternate punishment for murder. Also irrelevant in the
present context is whether it costs more to execute a
man than to keep him alive; and whether capital
cases have an adverse effect on our court system.

“ Packer, supra, at 1074. “Of course it is true that by the
middle of the nineteenth century the very considerable list of
capital offenses in most jurisdictions had been cut down to a
much smaller number. (Citation.) But that movement appears
to have ended by about 1900.” Id., 1073 (n. 9.)

65Witherspoon v. Illinois, 391 U.S. 510, 521 (n.20); People
v. Morse, 60 Cal. 2d 631, 647 [388 P.2d 33, 43] (1964).

— 67—

Such considerations bear solely on the legislative de
sirability of the death penalty. Secondly the specter of
mass execution is an unrealistic parade of horribles.
By way of example, only 25 of the 102 prisoners on
death row in California have had their judgments
of conviction imposing the death penalty affirmed by
the California Supreme Court; the remainder have yet
to have their cases reviewed on automatic appeal66
or instead are awaiting new trials on the issue of
penalty. California State Prison at San Quentin, Execu
tion Data (September 1, 1971). Of those 25 a great
number have petitions for writ of certiorari pending in
addition to future clemency hearings67 and issues
available upon which to base collateral proceedings in
the state and lower federal courts.

Respondent fails to comprehend how the length of
the average inmate’s confinement on death row can
render his ultimate execution cruel and unusual, par
ticularly since part of the delay in carrying out the judg
ment is occasioned by the States’ desire for a full and
adequate appellate review of the proceedings which led

6«Cal. Pen. Code §1239 (providing for an automatic appeal
since 1935). Under this section review of the case and reversal
may occur even contrary to the defendant’s wishes. People v.
Stanworth, 71 Cal. 2d 820, 832-35 [457 P.2d 889, 895-900]
(1969). The California Supreme Court considers itself bound to
review the record for errors not raised by the defendant when
the case is a capital one. See People v. Goodridge, 70 Cal.
2d 824, 839 [452 P.2d 637, 646-47] (1969); People v. Robin
son, 61 Cal. 2d 373, 388(n,14) [392 P.2d 970, 979] (1964).
If the California Supreme Court’s review of these cases follows
the pattern of the past six years, the majority of these individuals
will have their judgments imposing the death penalty reversed
or modified to impose a life sentence. See infra, Appendix p. 1,
Table H.

67Petitioner recognizes that “governors will almost never give
consideration to commutation in a capital case while judicial pro
ceedings are pending. . . .” (Pet. Br. 40 (n.78)).

-68—

to the imposition of the death sentence. Innovative
decisions by this Court and other federal and state
courts have contributed to lengthening the appellate and
collateral review of capital cases, and thereby to in
creasing the median elapsed time of prisoners on death
row in the various jurisdictions from 14.4 months at
the end of 1961 to 33.3 months at the end of 1968.68
Some of this delay may be a temporary phenomenon!
rather than an unavoidable characteristic of our ju
dicial system. But thus a large part of the delay has
been for the benefit of the condemned prisoners, who
would be the first to complain of undue haste if
they were accorded less due process on review of their
judgments of death.69 However, in addition to the
foregoing meaningful review, there are countless friv
olous actions filed by such inmates which, in conjunc
tion with stay applications filed therewith, result in the

68U.S. Bureau of Prisons, National Prisoner Statistics Bulletin:
Capital Punishment 1930-1968 (August, 1969) at 12 (Table
4).

69The course of two California cases through the official re
ports is illustrative of why it takes so long for the judgment in a
capital case to become final: (1) People v. Seiterle, 56 Cal. 2d
320 [363 P.2d 913] (1961); Seiterle v. Superior Court, 57 Cal.
2d 397 [369 P.2d 697] (1962); People v. Seiterle, 59 Cal. 2d
703 [381 P.2d 947] (1963), cert, denied, 375 U.S. 887; In re
Seiterle, 61 Cal. 2d 651 [394 P.2d 556] (1964), cert, denied,
379 U.S. 992; People v. Seiterle, 65 Cal. 2d 333 [420 P.2d
217] (1966), cert, denied, 387 U.S. 912; In re Seiterle, 71 Cal.
2d 698 [456 P.2d 129] (1969); (2) People v. Terry, 57 Cal.
2d 538 [370 P.2d 985] (1962), cert, denied, 375 U.S. 960;
People v. Terry, 61 Cal. 2d 137 [390 P.2d 381] (1964), cert,
denied, 379 U.S. 866; People v. Terry, 70 Cal. 2d 410 [454
P.2d 36] (1969), cert, denied, 399 U.S. 811; In re Terry, 4
Cal. 3d 911 [484 P.2d 1375] (1971); fifth retrial of the issue
of penalty is presently pending in Los Angeles Superior Court.
Id., 915 [484 P.2d at 1378-79]. See also the chronology set
forth in United States ex rel. Townsend v. Twomey, 322 F.
Supp. 158, 160-61 (N.D. 111. 1971.)

—69—

setting aside of execution dates previously fixed.70 In
other words the State does not purposefully, or even
negligently, subject the inmate to an unduly long pe
riod of pre-execution incarceration on death row; it is
often the inmate, unsatisfied with a full and ade
quate appellate review, who himself prolongs his time
on death row to that extreme length which places in
disrepute the entire system of administration of jus
tice.71

Nor is there anything cruel and unusual in the physi
cal surroundings of the men awaiting execution, as is
evident from a recent article in the New York Times
authored by one of the inmates on San Quentin’s death
row.73 Further detail regarding the routine of these
men is provided below.73

70In California an execution date is set 60-90 days after
the initial appeal is determined and 30-60 days after any sub
sequent appeal is determined. Cal. Pen. Code §§ 1193, 1227.

71One study contains suggestions as to how the “unnecessarily
slow process” in capital cases could be expedited. Post-Con
viction Remedies in California Death Penalty Cases, 11 Stan.
L. Rev. 94, 132-35 (1958.)

72Welch, San Quentin’s Death House, New York Times, p.
31 (July 23, 1971): “Disregarding the omnipresent fear, of the
gas chamber, our living conditions aren’t so bad. By prison
standards the food is good, although we’re only fed two meals
a day. [Sandwiches are provided at the second meal for a later
snack in the evening.] We have TV’s and piped in radio. We
can take educational courses and order nearly any type book,
magazine or newspaper.

“We’re allowed visitors, can write and receive letters from
anyone, and can also write for publication. We can buy type
writers, commissary items, and stationery from outside sources.
Our exercise period lasts three and half hours each day, and
we get to take showers twice a week.

“On the other hand, the only time we get sunshine is walking
to and from a visit. [The other two units of death row, where
inmates requiring less security are housed, are given their exer-

(Footnotes 72 and 73 continued on following page)

- 7 0 -

In summary, respondent submits that the death
penalty is consistent with “evolving standards of decency
that mark the progress of a maturing society,”74 in that
all but nine of the fifty States, plus a majority of per
sons, representing many segments of our society, have
concluded that such punishment is necessary for the pro
tection of society. Capital punishment is neither in
herently cruel and unusual per se, nor cruel and un
usual in the manner by which it is imposed, or in
relation to the crime of murder. Nor do the length
or nature of pre-execution confinement bring capital
punishment within the “ [prohibition against the wan
ton infliction of pain” contained in the Fourteenth
Amendment insofar as it incorporates the Eighth
Amendment. Francis v. Resweber, 329 U.S. 459, 463;
In re Anderson, 69 Cal. 2d 613, 632 [447 P.2d 117,
130] (1968); People v. Chessman, 52 Cal. 2d 467,
498-99 [341 P.2d 679, 699-700] (1959), cert, denied,
361 U.S. 925.

cise period in an outside yard.] Our safety razors are equipped
with locks so the blades can’t be removed. Our cells are searched
periodically for weapons and contraband, and during exercise
we are watched constantly by a guard with a rifle.” (Bracketed
material supplied by respondent.)

7S“Between 10:30 A.M. and 2:00 P.M., all men are released
from their cells for exercise in the corridor extending the length
of the Unit. A punching bag, ping pong, card table and games
are provided. . . . Men have TV, radio outlets, and library
books and newspapers as cell activities. Many men do extensive
legal work and some take academic correspondence courses. They
receive visits from attorneys, relatives and friends, of long stand
ing. Due to retrials and court-granted stays of execution, the
average length of time on condemned status is increasing with
nearly half the men having a tenure of over two years. . . .”
California State Prison at San Quentin, Capital Punishment in
California 3 (August 1, 1970).

7iTrop v. Dulles, 356 U.S. 86, 101 (plurality opinion of
Warren, C.J.).

—71—

In view of the common use and acceptance of capital
punishment during the entire history of our nation, up
to and through the present, it is appropriate to join
in the following observation by Justice Holmes for a
unanimous Court:

“The 14th Amendment, itself a historical product,
did not destroy history for the states, and substitute
mechanical compartments of law, all exactly alike. If
a thing has been practiced for two hundred years by
common consent, it will need a strong case for the
14th Amendment to affect it.” Jackman v. Rosenbaum
Co., 260 U.S. 22, 31.75 Respondent submits, on the
basis of this argument and those that follow, that peti
tioner has failed to make his case against the con
stitutionality of the death penalty.

C. In View of Petitioner’s Inability to Make a Clear
Showing That the Death Penalty Serves No Legiti
mate Function, the Federal Constitution Leaves the
People of the State of California Free to Determine
Through Their Elected Representatives That the
Protection of Society Under Present Conditions
Requires Death as a Form of Punishment for Cer
tain Serious Offenses

One facet of petitioner’s attack on the constitution
ality of the death penalty is his assertion that no social
interest is served by the state’s putting a man to death
that could not be served as well by a term of life
imprisonment, and that therefore the death penalty
constitutes “unnecessary cruelty”.70 (Pet. Br. 56.)

75See also Coolidge v. New Hampshire, .... U.S...... , 91 S. Ct.
2022, 2053 (Black, J., dissenting); McGauiha v. California,
402 U.S. 183, 203; Walz v. Tax Commission, 397 U.S. 664,
678.

76Weeins v. United States, 217 U.S. 349, 370.

•72-

Respondent submits that this assertion again states
a matter for the consideration of a legislative body but
not for a Court called upon to determine whether a
particular mode of punishment is constitutionally pro
hibited to the States. Assuming, as demonstrated in the
preceding arguments, that petitioner’s judgment and
sentence of death is neither cruel and unusual per se,
nor cruel and unusual in the mode in which it is to
be carried out or in relation to petitioner’s crime of
murder, respondent is hard pressed to comprehend how
a constitutional issue is raised by petitioner’s claim that
alternative remedies to capital punishment are available
to the state and federal governments, much less how
such an allegation raises an issue of cruel and unusual
punishment.

The reliance of petitioner and amici on selected
sociological, penological, and psychiatric findings as
supposed proof of the social inutility of the death
penalty, evokes the observation that

. . questions for this Court are not settled by
reference to medicine or penology. Our task is
to determine whether the principles embodied in
the Constitution of the United States place any
limitations upon the circumstances under which
punishment may be inflicted, and, if so, whether,
in the case now before us, those principles pre
clude the imposition of such punishment.”

Powell v. Texas, 392 U.S. 514, 565-66 (Forias,
J., dissenting).

Turning to the merits of petitioner’s assertion, it is
readily apparent that petitioner has grossly overstated
his case in concluding that there is absolutely no sub
stantial evidence that the protection of society is further-

- 73-

ed by the imposition of the death penalty for serious
offenses. From his treatment of some of the studies that
have been made on this subject, it appears that petition
er views it to be an established fact that the death
penalty accomplishes no legitimate social function.
(Pet. Br., App. H.)

For reasons which will be set forth at greater length
at the conclusion of this argument, respondent does
not view its present task as encompassing conclusive
proof of the social utility of capital punishment. Aside
from the fact that such a showing can be, and has
been, more appropriately and effectively attempted in
the legislative arena, it is submitted that the burden,
if any, which respondent must assume in the judicial
setting of an attack on the constitutionality of the death
penalty, is only to demonstrate that there is in fact a
basis upon which the California Legislature could
reasonably conclude that certain serious offenses77
should be punishable by death.

77There are eight capital offenses in California: (1) first
degree murder (Cal. Pen. Code § 190), (2) kidnaping for gain
with bodily harm (Cal. Pen. Code § 209), (3) assault with a
deadly weapon by a life prisoner (Cal. Pen. Code § 4500), (4)
explosion or ignition of a destructive device or explosive causing
mayhem or great bodily injury (Cal. Pen. Code § 12310, enacted
in 1970), (5) treason (Cal. Pen. Code § 37), (6) sabotage
of war or defense effort causing death or great bodilv injury
(Cal. Mil. & Vet. Code §§ 1670, 1672(a)), (7) train wrecking
(Cal. Pen. Code § 219), and (8) procurement of the conviction
and execution of any innocent person by perjury or subornation
of perjury (Cal. Pen. Code § 128). The death penalty is man
datory for the offenses listed (6) and (7), as well as for the of
fense listed (3) when the commission thereof results in the
death of a non-inmate victim. However, since 1893, when the
State assumed the sheriffs’ responsibility for conducting execu
tions and complete records became available, executions have
been limited to persons convicted of first degree murder, ag
gravated kidnaping, and assault with a deadly weapon by a life

(This footnote is continued on next page)

■74—

The objectives of punishment, whose furtherance the
California Legislature entrusts to the trier of fact in
capital cases, were set forth by the California Supreme
Court in an opinion defining the awesome and complex
task conferred upon the jury in such a case:

“ [I]n deciding the question whether the accused
should be put to death or sentenced to imprison
ment for life it is within their discretion alone to
determine, each for himself, how far he will ac
cord weight to the considerations of the several ob
jectives of punishment, of the deterrence of crime,
of the protection of society, of the desirability of
stern retribution, or of sympathy or clemency, of
age, sex, human passion, ignorance or weakness,
or (if appropriate under the evidence, of illness or
intoxication or provocation not sufficient to re
duce the degree or class of the crime), of the pre
sumptions concerning, or possible uncertainties

prisoner. Of the 292 executions in California since 1930, 280
were for first degree murder, 6 for aggravated kidnaping, and 6
for assault with a deadly weapon by a life prisoner. U.S. Bureau
of Prisons, National Prisoner Statistics Bulletin: Capital Punish
ment 1930-1968 (August, 1969) at 11 (Table 3); Hearings
Before the Subcommittee on Criminal Laws and Procedures of
the Senate Committee on the Judiciary on S. 1760, to Abolish
the Death Penalty, 90th Cong., 2d Sess. 212-18 (1970). The
records of the California State Prison at San Quentin indicate
that as of September 1, 1971, there were 91 men and 4 women
under death sentence for murder, 4 men under death sentence
for assault with a deadly weapon by a life prisoner, having
no other death sentence, and 3 men under death sentence
for aggravated kidnaping having no other death sentence.
Much of the force of the capital offense listed as (2) was
sapped by the decision in People v. Daniels, 71 Cal. 2d 1119,
1139 [459 P.2d 225, 238] (1969), excluding from the opera
tion of California Penal Code section 209 those kidnapings
which are solely to facilitate, and are merely incidental to, the
crime of robbery, where the movement of the victim does not
substantially increase the risk of harm. The Daniels decision has
been applied fully retroactively. People v. Mutch, 4 Cal. 3d 389,
394-96 [482 P.2d 633, 636-37] (1971).

■75—

attaching to, life imprisonment, or of the irrevo
cableness of an executed sentence of death, or an
apprehension that explanatory facts may exist
which have not been brought to light, or any
other consideration whatever which in the light of
the evidence, the duty they owe to the accused
and to the state, and the law as explained to them
by the judge, appears to them to be important.”78

People v. Friend, 47 Cal. 2d 749, 767-68 [306
P.2d 463, 474-75J (1957).

See also Williams v. New York, 337 U.S. 241,
248 ;79

Winston v. United States, 172 U.S. 303, 313,
quoted in McGautha v. California, 402 U.S.
183, 200-01.

78Lord Justice Denning testified before the British Royal
Commission on Capital Punishment, “The punishment inflicted
for grave crimes should adequately reflect the revulsion felt by
the great majority of citizens for them. It is a mistake to con
sider the objectives of punishment as being deterrent or reforma
tive or preventive and nothing else. . . . The ultimate justification
of any punishment is . . . that it is the emphatic denunciation
by the community of a crime; and . . . there are some murders
which . . . demand the most emphatic denunciation of all,
namely the death penalty.” Quoted in National Commission
on Reform of Federal Criminal Laws, 2 Working Papers 1359
(n.47) (1970).

79While “rehabilitation of offenders” has become the pri
mary goal of criminal jurisprudence, “retribution” is still a per
missible consideration albeit “no longer the dominant objective.”
Williams v. New York, supra at 248 and n.13. “Description,
even approval, of the prevailing mood of penal philosophy (sed
quaere: whose mood?) is one thing; its elevation to constitution
al dogma is quite another.” Packer, Comment, Making the
Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1078(n.21)
(1964). “This Court has never held that anything in the Consti
tution requires that penal sanctions be designed solely to achieve
therapeutic or rehabilitative effects,” Powell v. Texas, 392 U.S.
514, 530 (plurality opinion of Marshall, J.)

—76—

Stripped down to their basic elements, the permis
sible objectives of punishment are reduced to four:
(1) deterrence, (2) incapacitation (or isolation), (3)
rehabilitation, and (4) retribution.80 “Retribution
aside, the rational justification for punishment is or
dinarily thought to be its utilitarian propensity to pre
vent or diminish the commission of offenses, through
deterrence, incapacitation, rehabilitation, or some com
bination of these.”81

Rehabilitation of the murderer sentenced to death
is, of course, just as impossible as protection of the
absent member of society victimized by the offender.
However, petitioner should find little sustenance for
his argument in this circumstance, in view of the “dark
underside to the rehabilitative ideal.” Since, accord
ing to this ideal, the proper aim of the punitive process
is to reform the criminal so that he may re-enter society
as a useful member, the permanent incapacitation of
the dangerous, unreformable criminal by life term im
prisonment no more serves the rehabilitative aim than
does the death penalty.82

What, then, of deterrence-—has petitioner conclu
sively established that the death penalty deters no sig
nificantly greater number of persons from committing
murder than does the prospect of life imprisonment?

Before proceeding to the merits of petitioner’s allega
tions, which are founded principally on the sociological
studies of Professor Sellin (Pet. Br., App. H), it seems

80Rudolph v. Alabama, 375 U.S. 889, 891 (dissenting
opinion of Goldberg, J.); Trop v. Dulles, 356 U.S. 86, 111 (con
curring opinion of Brennan, J.); Williams v. New York, 337
U.S. 241, 248.

81Packer, supra at 1079.
82Packer, supra at 1081.

■77—

appropriate to join in the following observation by Pro
fessor Packer:

“The legislative judgment inherent in provisions
for the death penalty may be open to question, but
that hardly seems enough to make it impermis
sible. One may wonder whether a constitution that
‘does not enact Mr. Plerbert Spencer’s Social
Statics’ can fruitfully be thought of as enacting
Mr. Thorsten Sellin on the death penalty.”83

The studies upon which petitioner relies conclude
that the death penalty exerts no discernable influence
on the rate of homicides. The truism that one may
prove almost anything with statistics is a circumstance
that makes one particularly concerned, in a matter as
fraught with strong feelings as the desirability of the
death penalty, that the statistician be totally objective
and free of bias.84

Aside from the shadow which this caveat casts
across the findings of non-deterrence, or more accurate
ly the absence of findings of deterrence, a question
arises as to the efficacy of the statistical approach in
an area as imbued with imponderables as the question
of human motivation toward criminal conduct.85 So
cial and economic conditions, such as population pres
sure, unemployment rate, influx of racial and ethnic
minorities, in addition to such factors as the efficacy
of local law enforcement, climate and weather, and the
number of attractive crime targets, must all play a sig-

83Packer, supra at 1079-80 (footnote omitted).
84Some of the inherent weaknesses in a statistical approach

are indicated in the opinion in Maxwell v. Bishop 398 F.2d
138 (8th Cir. 1968), vac’d, 398 U.S. 262.

85See Van Den Haag, Deterrence and the Death Penalty,
60 J. Crim. L.C. & P.S. 141, 145-46 (1969).

— 78—

nificant role in determining the number of homicides
(particularly robbery-homicides) committed in a given
jurisdiction in a given period of time. The existence of
so many influential factors, not susceptible of measure
ment and correlation, impugns the statistical method
ology upon which petitioner places so much reliance.
Clearly, the existence of these variables precludes a
meaningful comparison between general undifferentiated
murder statistics and a single proposed causual factor,
that of the existence of the death penalty in the partic
ular jurisdiction.86

Secondly, the steady increase in homicides across
the nation,87 presumably caused by a multitude of
social and economic factors, naturally tends to cover

86“It is indeed obvious that a statistical change cannot safely
be ascribed to a particular explanation without making sure that
no other explanations exist which, either alone or in conjunction
with each other or the suggested explanation, could account for
the change. And it is impossible to be sure that variations in
homicide statistics before and after the abolition of capital pun
ishment are in fact due to abolition, or that, if the figures remain
constant, abolition did not have some effect which was cancelled
out by some other cause. . . .

“This truth applies to any comparison of the position in a
single country at different times; it applies even more to any
comparison between different countries, where differences of char
acter, behavior and outlook and different methods of compiling
statistics present additional complications. Moreover, in any
comparison between countries, it is necessary to establish that
the crimes which are compared are identical, and this is rarely
possible. If, for example, an attempt were made to compare the
murder rate in England, Belgium and the Netherlands, it would
be found that ‘murder’ means something different in each coun
try. . . .” Royal Commission on Capital Punishment 1949-1953
Report 340 (1953).

87Murder increased 76% in 1970 over 1960, and the rate
of murder per 100,000 inhabitants increased 56% during that
period. These rates appear to be increasing in all geographical
areas of the country and in metropolitan, suburban, and rural
areas. Federal Bureau of Investigation, Uniform Crime Reports—
1970 (August 31, 1971) at 7-8.

•79-

up the perceptible deterrent effects of the death pen
alty which might appear in the antiseptic conditions
of a social laboratory.

A third objection to the statistical approach is that
it measures the homicide rate in terms of the theoretical
existence of the death penalty ( i.e., existing statutes and
judgments imposing the punishment of death) rather
than in terms of the actual existence of the death pen
alty {i.e., executions carried out). During the previous
decade in which the dramatic increase in murders was
recorded, as indicated in the preceding footnote, while
juries continued at a relatively stable rate to fix the
penalty at death88 the annual number of executions
in the United States dwindled from 56 to Q.89 In
this context respondent concurs in petitioner’s apparent
view (Pet. Br. 6h-7h) that the death penalty would be
an even greater deterrent were it not for the inordi
nate delay existing in the courts today which precludes
the application of swift punishment to the offender.
Interestingly enough, the homicide rate in California
was relatively stable from 1953 to 1963, alternating
between 3.3 and 4.0 per 100,000 population. In 1963,
the year of the last execution except for the one in
1967, the rate was 3.8. The rate has since climbed to
6.0 in 1968 and 6.9 in 1969.90

A fourth possible flaw in the statistical approach
arises from the vast majority of the States having the

88U.S. Bureau of Prisons, National Prisoner Statistics Bul
letin: Capital Punishment 1930-1968 (August, 1969) at 12
(Table 4). See Table C, infra, p. 64.

89M , 7 (Table 1).
9,)California Department of Corrections, Executions in Cali

fornia 1943 through 1963 (Appendix II) (1965); California
Bureau of Criminal Statistics, Crime and Delinquency in Cali
fornia-—1969 (Table II-l) 52 (1970).

- 80-

death penalty and therefore the possibility arising that
a substantial portion of the population of a State not
having the death penalty might not be fully aware
of the latter fact.

Last, and perhaps most significant, is the fact that
many murders are not deterrable since they represent
irrational crimes, crimes of passion in which a family
or friends are the victims, and crimes resulting from
provocation. These murders, which almost never re
ceive the death penalty in California,91 and which
would probably be undeterrable even if drawing and
quartering were still the punishment,92 are promiscu
ously lumped by the statisticians with murders which,
respondent will demonstrate, are frequently deterrable.
A study of murder rates and their relationship to the
death penalty would be valid only if it were to limit
itself to deterrable homicides involving a course of crim
inal conduct understanding^ embarked upon, such as
armed robbery, collection of insurance on the victim’s
life, or kidnaping for ransom.

Some reference has already been made, in refuting
the selective quotation of evidence by one of the amici
curiae from a collateral proceeding,93 to the informed
belief of many who have had first-hand contacts with

n See n. 107, infra, and Appendix to Respondent’s Brief.
»-The same point might be made with reference to the

“probably apocryphal” story that when pickpocketing. was a
capital offense in England, pickpockets plied their trade at the
foot of the gallows as a fellow pickpocket was hanged. See
Bedau, The "Death Penalty in America 20 (rev. ed. 1967).
Faced with the choice between immediate starvation and intoler
able poverty on the one hand, and the possibility of a hanging
sometime in the future on the other, such persons were probably
undeterrable.

93See pp. 60-61, infra.

—81
criminals that the latter in particular situations fre
quently refrain from killing because of their fear of
the death penalty.94 Many such graphic illustrations
are set forth as follows, in the California Supreme
Court case of People v. Love, 56 Cal. 2d 720 [336
P.2d 33] (1961) (McComb, J., dissenting):

“ (b) In the early history of the western states
of the United States of America, including Cali
fornia, the death penalty was imposed by the
early settlers to stop the rustling of cattle. It is a
matter of common knowledge that in the early
days of this state the apprehension and hanging
of cattle rustlers reduced, and almost stopped, the
theft of cattle.

“(c) In the early history of San Francisco, law
enforcement broke down and chaotic conditions
prevailed. A group of citizens, known as the
Vigilantes, undertook to restore order. To do this,
they apprehended criminals and after trial prompt
ly executed the guilty parties. Order was restored,
and the civil authorities assumed control again.
Clearly fear of the death penalty was the basic
reason for the restoration of order.

“(d) Any prosecuting attorney or criminal de
fense attorney or any trial judge who has sat for a
substantial period in a department of the superior
court devoted to the trial of felony cases knows

94“There is no reliable method for determining who has
contemplated committing a capital crime but refrained due to
the fear of the death penalty as distinguished from other forms
of criminal punishment. . . . It is probably impossible to sub
ject deterrence to scientific study in any direct way. . . . The
facts cannot be ascertained so that they can be subjected to
scientific analysis and interpretation.” Florida Spec! Comm’n for
the Study of Abolition of Death Penalty in Capital Cases. Report
13-14 (1965).

-82 -

that many felons are careful to refrain from arm
ing themselves with a deadly weapon because they
do not want to take the chance of killing anyone
and suffering death as a penalty.

“A few recent examples of the accuracy of
this view are to be found in the following cases
involving persons arrested by officers of the Los
Angeles Police Department. . . ,”95 Id., 734-35
[366 P.2d at 40-41] (McComb, J., dissenting).

9B“(i) Margaret Elizabeth Daly, of San Pedro, was arrested
August 28, 1961, for assaulting Pete Gibbons with a knife. She
stated to investigating officers: ‘Yeh, I cut him and 1 should have
done a better job. I would have killed him but I didn’t want
to go to the gas chamber.’

“ (ii) Robert D. Thomas, alias Robert Hall, an ex-convict
from Kentucky; Melvin Eugene Young, alias Gene Wilson, a pet
ty criminal from Iowa and Illinois; and Shirley R. Coffee, alias
Elizabeth Salquist, of California, were arrested April 25, 1961,
for robbery. They had used toy pistols to force their victims into
rear rooms, where the victims were bound. When questioned by
the investigating officers as to the reason for using toy guns
instead of genuine guns, all three agreed that real guns were too
dangerous, as if someone were killed in the commission of the
robberies, they could all receive the death penalty.

“(iii) Louis Joseph Turck, alias Luigi Furchiano, alias Joseph
Farino, alias Glenn Hooper, alias Joe Moreno, an ex-convict
with a felony record dating from 1941, was arrested May 20,
1961, for robbery. He had used guns in prior robberies in other
states but simulated a gun in the robbery here. He told inves
tigating officers that he was aware of the California death penal
ty although he had been in this state for only one month, and
said, when asked why he had only simulated a gun, 7 knew that
if I used a real gun and that if I shot someone in a robbery,
1 might get the death penalty and go to the gas chamber.’

“ (iv) Ramon Jesse Velarde was arrested September 26, 1960,
while attempting to rob a supermarket. At that time, armed with
a loaded .38 caliber revolver, he was holding several employees
of the market as hostages. He subsequently escaped from jail
and was apprehended at the Mexican border. While being re
turned to Los Angeles for prosecution, he made the following
statement to the transporting officers: ‘I think I might have es
caped at the market if I had shot one or more of them. I prob
ably would have done it if it wasn’t for the gas chamber. I’ll

(This footnote is continued on next page)

- 83-

Similar views have been voiced by another Justice
of the California Supreme Court on the basis of his
personal experience:

“That the ever present potentiality in Califor
nia of the death penalty, for murder in the com
mission of armed robbery, each year saves the
lives of scores, if not hundreds of victims of such
crimes, cannot I think, reasonably be doubted by
any judge who has had substantial experience

only do 7 or 10 years for this. I don’t want to die no matter
what happens, you want to live another day.’

“ (v) Orelius Mathew Stewart, an ex-convict, with a long
felony record, was arrested March 3, 1960, for attempted bank
robbery. He was subsequently convicted and sentenced to the
state prison. While discussing the matter with his probation of
ficer, he stated: ‘The officer who arrested me was by himself,
and if I had wanted, I could have blasted him. I thought about
it at the time, but I changed my mind when I thought of the gas
chamber.’

“ (vi) Paul Anthony Brusseau, with a criminal record in six
other states, was arrested February 6, 1960, for robbery. He
readily admitted five holdups of candy stores in Los Angeles.
In this series of robberies he had only simulated a gun. When
questioned by investigators as to the reason for his simulating a
gun rather than using a real one, he replied that he did not
want to get the gas chamber.

“ (vii) Salvador A. Estrada, a 19-year-old youth with a four-
year criminal record, was arrested February 2, 1960, just after
he had stolen an automobile from a parking lot by wiring around
the ignition switch. As he was being booked at the station, he
stated to the arresting officers: ‘I want to ask you one question,
do you think they will repeal the capital punishment law. If they
do, we can kill all you cops and judges without worrying about
it.’

“ (viii) Jack Colevris, a habitual criminal with a record dating
back to 1945, committed an armed robbery at a supermarket
on April 25, 1960, about a week after escaping from San Quen
tin Prison. Shortly thereafter he was stopped by a motorcycle of
ficer. Colevris, who had twice been sentenced to the state prison
for armed robbery, knew that if brought to trial, he would again
be sent to prison for a long term. The loaded revolver was on
the seat of the automobile beside him, and he could easily
have shot and killed the arresting officer. By his own statements
to the interrogating officers, however, he was deterred from this

(This footnote is continued on next page)

—84

at the trial court level with the handling of such
persons. I know that during my own trial court
experience, which although not extensive in crim
inal law, included some four to five years (1930-
1934) in a department of the superior court ex
clusively engaged in handling felony cases, I re
peatedly heard from the lips of robbers—some
amateurs (no prior convictions), some profes
sionals (with priors)—substantially the same

action because he preferred a possible life sentence to death in
the gas chamber.

“ (ix) Edward Joseph Lapienski, who had a criminal rec
ord dating back to 1948, was arrested in December 1959 for a
holdup committed with a toy automatic type pistol. When ques
tioned by investigators as to why he had threatened his vic
tim with death and had not provided himself with the means
of carrying out the threat, he stated, 7 know that if I had a real
gun and killed someone, I would get the gas chamber.’

“ (x) George Hewlitt Dixon, an ex-convict with a long felony
record in the East, was arrested for robbery and kidnaping com
mitted on November 27, 1959. Using a screw-driver in his jacket
pocket to simulate a gun, he had held up and kidnaped the at
tendant of a service station, later releasing him unharmed. When
questioned about his using a screwdriver to simulate a gun, this
man, a hardened criminal with many felony arrests and at least
two known escapes from custody, indicated his fear and respect
for the California death penalty and stated, 7 did not want to
get the gas.’

“ (xi) Eugene Freeland Fitzgerald, alias Edward Finley, an ex
convict with a felony record dating back to 1951, was arrested
February 2, 1960, for the robbery of a chain of candy stores.
He used a toy gun in committing the robberies, and when ques
tioned by the investigating officers as to his reasons for doing
so, he stated: If I had a real gun and killed someone, I would
get the gas. I would rather have it this way.’

“ (xii) Quentin Lawson, an ex-convict on parole, was arrested
January 24, 1959, for committing two robberies, in which he
had simulated a gun in his coat pocket. When questioned on his
reason for simulating a gun and not using a real one, he replied
that he did not want to kill someone and get the death penalty.

“ (xiii) Theodore Roosevelt Cornell, with many aliases, an ex
convict from Michigan with a criminal record of 26 years, was
arrested December 31, 1958, while attempting to hold up the
box office of a theater. He had simulated a gun in his coat

(This footnote is continued on next page)

—85
story: ‘1 used a toy gun [or a simulated gun or a
gun in which the firing pin or hammer had been
extracted or damaged] because I didn’t want my
neck stretched.’ (The penalty, at the time referred
to, was hanging; death by lethal gas was sub
stituted in 1941.)” (Footnotes omitted.)

People v. Love, 56 Cal. 2d 720, 744 [336 P.2d
33, 46-47] (1961) (Schauer, J., dissent
ing).98

Numerous other incidents reflecting the deterrent
effect of the death penalty are related in the Royal
Commission on Capital Punishment 1949-1953 Report,
at 335-39 (1953), including instances in which a mur
derer deliberately chose a jurisdiction not having the
death penalty as the site of his crime in order to escape
capital punishment. Id., 337-38.

Another source notes that shortly before California’s
last execution, a liquor store owner was attacked by a

pocket, and when asked by investigating officers why an ex
convict with everything to lose would not use a real gun, he re
plied, ‘If I used a real gun and shot someone, I could lose mv
life

“ (xiv) Robert Ellis Blood, Daniel B. Gridley, and Richard
R. Hurst were arrested December 3, 1958, for attempted robbery.
They were equipped with a roll of cord and a toy pistol. When
questioned, all of them stated that they used the toy pistol be
cause they did not want to kill anyone, as they were aware that
the penalty for killing a person in a robbery was death in the
gas chamber.” (Emphasis in the original.) Id., 735-37 [336
P.2d at 41-42] (McComb, J. dissenting). See also Coakley,
Capital Punishment, 1 Amer. Crim. L. Q. 27, 31-32 (1963);
American Bar Association, Section of Criminal Law Proceedings
— 1959, 15-16.

96Justice Schauer noted, “I use robbery as the example. . . .
The point of my discussion, however, is equally applicable to the
deterrent effect of the death penalty against harming kidnap vic
tims and against murder committed in the perpetration or at
tempt to perpetrate arson, rape, burglary, mayhem or lascivious
acts upon a child. . . .” Id., 744(n.l) [336 P.2d at 46.]

— 86—

knife-wielding assailant who told him, “ ‘I’m going to
kill you’ ” but was deterred when his intended victim
replied, “ ‘You may kill me, but you will go to the gas
chamber.’ ”97

A recent study conducted by the Los Angeles Police
Department confirms the continued validity of the fore
going conclusions, which are drawn from innumerable
incidents experienced by those whose contact with crim
inals is real and direct rather than merely academic.98

This study, embodied in a 62-page report, was con
ducted between December 21, 1970, and February 4,
1971, and involved the interviewing of 316 arrestees.
Los Angeles Police Department, Detective Bureau, Ad
ministrative Analysis Section, A Study by the Los
Angeles Police Department on Capital Punishment 3
(February, 1971). Unarmed suspects were asked
why they did not arm themselves, and armed suspects
who did not use their weapons were asked why they
did not. Id., 61. Of the 316 persons interviewed, 217
denied their crime or refused a statement, primarily out
of a desire not to jeopardize their case. Id., 11. The
positive statements made by the remaining 99 are clas
sified as follows.

97District Attorneys’ and County Counsels’ Association of
California, Official Position on Capital Punishment 1 (Septem
ber 2, 1971), quoting the Sacramento Bee, May 5, 1967.

98This is not to imply that all those whose experience with
the criminal world is purely academic are dubious of the deter
rent effect of the death penalty. See, e.g., Van Den Haag, On
Deterrence and the Death Penalty, 60 J. Crim. L.C. & P.S.
141 (June, 1969).

- 8 7 -

t a b l e D

Los Angeles Police Department Study of the
Deterrent Effect of the Death Penalty,

February, 197189

1. Deterred by fear of death penalty
from carrying weapon or operative
weapon 50 (50.5%)

2. Unaffected by death penalty because
it was no longer being enforced 7 (7.07%)

3. Undeterred by death penalty, would
kill whether it was enforced or not 10 (10.1%)

4. Unaffected by death penalty because
they would not carry weapon in any
event, primarily out of fear of being
injured themselves or of injuring
someone else 32 (32.3%)

The conclusions drawn from the study are as fol
lows:

“I. The adoption of an effectively enforced
death penalty system is a deterrent in the pre
vention of homicides. II. Though the death penalty
has not been removed from the statutes in Cali
fornia, many suspects believe in reality that no
death penalty exists as it is not being enforced.
III. Some suspects, while realizing that the Cali
fornia death penalty exists in name only, disclose
that the certainty of an executed death penalty
sentence would deter them from being armed
while committing crimes.” Id., 2.

"Los Angeles Police Department, Detective Bureau, Ad
ministrative Analysis Section, A Study by the Los Angeles Police
Department on Capital Punishment 11 (February, 1971).

— 88-

The report also notes, “If this study contained only
one and not the 50 documented cases supporting the
fact that the death penalty is a deterrent, there should
be no question of its retention and enforcement. In
1970 in the City of Los Angeles, 394 innocent people
were victims of an unlawful execution without the right
of due process of law.” Id., 1.

On the basis of objective criteria,100 the report
compiled and selected 25 case histories from the 99
individuals who made positive statements. Of the 25
arrestees, 16 were under arrest for robbery, 4 for bur
glary, 3 for felonious assault, and 2 for rape; and 10
were armed when arrested while 15 were not.101 Id.,
8. The time elapsed between arrest and interview
ranged from 1 to 5 days and averaged 2 days.102 Id., 9.

100Inclusion of cases from different areas of the city to in
clude various types of crimes, juveniles and adults, suspects hav
ing as varied ethnic, religious, and economic backgrounds as pos
sible; selection of cases so that no investigator participated in
more than one case history; selection of cases from various time
periods within the survey; inclusion of as many different arrestee
views as possible either showing or not showing behavior de
terred by the death penalty. Approximately 97% of the 1,022
officers of the detective bureau were asked to participate in the
study. Id., 4-5.

101Of the 25, 23 were male adults and 2 were male juve
niles; 10 were Caucasian, 13 were Negro, and 2 were Latin;
age ranged from 16 years to 40 years, averaging 24.8 years;
number of felony arrests per suspect ranged from 1 to 21 and of
misdemeanor arrests from 0 to 16, averaging 7.7 felony arrests
and 3.9 misdemeanor arrests; and range of time lived in Califor
nia was from 1 year to 40 years, averaging 14.4 years. Id.,
8-9.

102The Christmas and New Year holidays occurred during
the period covered by the study and caused the average elapsed
time between arrest and interview to increase to twice its normal
figure. Id., 10.

-89-

The statements made by these 25 arrestees are indi
cated below.103

103 (1) (unarmed robber) “Since in reality there is no death
penalty in California, I would kill to obtain what I want.” (2)
(armed robber) “I used a pellet gun because I didn’t want to
kill anyone and be put to death in the gas chamber.” (3) (un
armed burglar) “I don’t carry a gun. I don’t want to be shot
at by police and am afraid of the death penalty.” (4) (armed
robber) “I used an unloaded gun in the robbery of a market
so I would not hurt anyone and because I am afraid of death
penalty.” (5) (armed robber) “The gun was unloaded because
I didn’t want to hurt anyone. I know the punishment would be
greater if I shot anyone during a robbery.” (6) (armed robber)
“I would be afraid to use a gun because of possible death pen
alty.” (7) (armed attempted murderer) “I would have shot it
out if necessary, the death penalty is no deterrent.” (8) (armed
robber) “I used a blank revolver because I ’m an ex-con.” (9)
(unarmed robber) “I would not use a gun, I am afraid of the
consequences of the death penalty.” (10) (unarmed burglar) “I
never owned a gun because I’m afraid of the death penalty.” (11)
(unarmed burglar) “If I was armed I would not have used the
weapon, I am afraid of the gas chamber.” (12) (unarmed rob
ber) “I didn’t use a gun because I was afraid of being shot.”
(13) (armed suspect charged with assault with a deadly weapon)
“I would kill if I had the chance, I’m not afraid of any courts.
They are easy.” (14) (unarmed attempted robber) “I am waiting
for the death penalty to be removed, then everything is free.”
(15) (unarmed forcible rapist) “I don’t carry a gun because
I’m afraid of getting the death penalty.” (16) (unarmed bur
glar) “Because of the death penalty, I would never arm myself.”
(17) (unarmed forcible rapist) “I have gotten into too much
trouble before when I had a gun.” (18) (armed suspect charged
with assault with intent to commit murder) “Even if a death oc
curred as a result of a shooting, I am not afraid because no one
believes in the death penalty anymore.” (19) (unarmed robber)
“I am afraid of the death penalty. I wasn’t armed.” (20) (un
armed robber) “I used a toy gun, I didn’t want to hurt anyone.”
(21) (unarmed robber) “I don’t carry a gun, I might shoot
someone accidentally, I’m afraid of the death penalty.” (22)
(unarmed burglar) “I’m an ex-con, I would be an idiot to carry
a gun. Punishment would be too great.” (23) (armed robber)
“I didn’t want to hurt anyone, I had an empty gun.” (24)
(unarmed robber) “I would use weapon if I got into a bind.
It doesn’t make any difference, no one goes to the gas chamber.”
(25) (armed robber) “I would use gun if necessary, but I fear
the death penalty.” Id., 12-40.

— 90-

Respondent submits that such data cannot accurately
be dismissed as “anecdotal impressions of law enforce
ment” (Pet. Br. Ih, 8h) and that they are instead
persuasive proof that the existence of capital punish
ment, even though unenforced today, acts to deter a
substantial number of criminals from making the pre
meditated decision to arm themselves with operable
weapons or from using such weapons to kill their vic
tims. Undoubtedly numerous citizens are alive today
only because of the existence of the death penalty,
and other victims probably would not have been exe
cuted had some criminals not held the accurate belief
that the death penalty is not being enforced today.

These circumstances lead one to what is perhaps the
most compelling justification for the death penalty.
That is that the armed robber or armed burglar, com
monly faced with a maximum term of life imprison
ment104 if apprehended, might well consider himself
foolish not to kill his victims or other witnesses if by
doing so he were to risk only the same penalty, life
imprisonment, for murder, while increasing multifold
his chances of avoiding apprehension. The armed rob
ber of a one-man liquor store operation would not let
our views of the dignity of human life cause him to
hestitate for a moment at killing the lonely figure
behind the counter at a late hour when no other persons
are around to witness such an execution. The same
applies to the willingness of the armed robber to kill
a police officer in order to avoid apprehension and
conviction, when without the death penalty the crim-

XOiSee, e.g., Cal. Pen. Code §§ 213, 461, 671.

—91—

inal will risk no added punishment if he does away
with his intended captor.105

This justification for the death penalty was judicial
ly recognized in People v. Love, 56 Cal. 2d 720, 746
[366 P.2d 33, 48] (1961) (Schauer, L, dissenting):

“ [T]he robber can do one thing that will vastly
decrease the risk of identification and conviction:
he can eliminate the known witnesses—the victims
he robs. . . . It cannot be validly disputed that
the choice as to [what] he carries—a gun or what
looks like a gun—is in case after case controlled
solely by his respect for the death penalty. If the
punishment he risks for robbery is to be imprison
ment—and only imprisonment, even if he elimi
nates the only witness—it would seem inevitable
that the incentive to kill would be greatly in
creased. The greater chance of escaping any pun
ishment would, in the minds of some at least, out
weigh the slighter risk of having the term in
creased. Many a robber who would take the risk
of a longer term would absolutely shun any plan
which substituted death for imprisonment.”

Justice Schauer concluded that abolition of the death
penalty “would be tragically undesirable to the families
of the innocent victims who would die violently as a
result.” Id., 747.

The California Legislature’s defeat of bills to abolish
capital punishment has been predicated in part upon

10SSee 4 Blackstone, Commentaries 18 (Tucker ed. 1803):
“Thus in France the punishment of robbery, either with or with
out murder, is the same: hence it is, that though perhaps they
are therefore subject to fewer robberies, yet they never rob but
they also murder. In China, murderers are cut to pieces, and
robbers not: hence in that country they never murder on the
highway, though they often rob.”

-92

precisely such evidence concerning the deterrent effect
of the death penalty, including instances of felons delib
erately choosing jurisdictions not having the death pen
alty in which to commit their crimes. See California
Senate, Hearing Report and Testimony on Senate Bill
No. 1, 1960 Second Extraordinary Session, Which
Proposed to Abolish the Death Penalty in California
and to Substitute Life Imprisonment Without Possi
bility of Parole 133-35, 149-54, 156, 161 (March 9,
1960), referred to in People v. Love, supra at 755-56
[366 P.2d at 813-14] (Schauer, J., and McComb, J.,
dissenting from denial of petition for rehearing).108
The latter opinion quotes a prominent defense attorney
concurring in the conclusion that such evidence is per
suasive and observing, “ ‘ “Naturally, there can be no
statistics produced to demonstrate how many murders
were not committed because the would-be perpetrator
feared the death penalty.” ’ ” (Emphasis in the orig
inal.) Id., 756 [336 P.2d at 814], See also Robinson
v. United States, 324 U.S. 282, 284.

Respondent recognizes that the existence of capital
punishment does not operate as a deterrent to all crim
inals. Similarly the British Royal Commission con
cluded:

“Prima facie the penalty of death is likely to have
a stronger effect as a deterrent to normal human
beings than any other form of punishment, and
there is some evidence (though no convincing sta
tistical evidence) that this is in fact so. But this
effect does not operate universally or uniformly,
and there are many offenders on whom it is limited
and may often be negligible.”

Royal Commission on Capital Punishment 1949-
1953 Report, 24; see also supra at 274.

109See also Los Angeles Times, Part I, pp. 1, 24 (June 23,
1971).

-93

“But it would be absurd to claim because it did not
deter all it did not deter any.” (Emphasis in the
original.) People v. Love, supra at 745 [366 P.2d
at 47] (Schauer, J., dissenting). The death penalty
clearly does operate as a deterrent with respect to a siz
able segment of the criminal population, as previously
demonstrated. And significantly it is this segment, the
majority of whose crimes are committed for pecuni
ary gain, who commit the types of crimes that so often
end up incurring the death penalty when life is taken
in connection therewith. As is also indicated in the
Appendix to this brief, the crimes of passion, which
are rarely deferrable, incur the death penalty only
under the most exceptional circumstances and consti
tute only a minute portion of the death sentences im
posed in California.107

“ [A] 11 those who violate penal laws of any kind are
by definition undeterred.” Powell v. Texas, 392 U.S.
514, 531 (plurality opinion of Marshall, J.). How
ever, we can never know the number of persons who

107For example, respondent is informed by the staff of the
California State Prison at San Quentin that the crimes of only
four of the 98 men currently housed on that institution’s Death
Row involve the killing of the defendant’s wife. Each of these
four cases indicates exceptional circumstances and only the last
listed can arguably be said to involve an element of passion: (1)
Perveler: a former police officer who, with his girlfriend, calculat-
ingly killed his wife and the girlfriend’s husband; (2) Archerd:
a male nurse who killed six persons, some of them former
wives, with insulin injections for the motive of monetary gain;
(3) Murphy: who hired another person to accost the defendant’s
wife on a public road and murder her; (4) Crosier: who killed his
common-law wife and was also convicted on a charge of assault
with intent to commit murder upon another victim. None of the
victims of the four women currently under sentence of death in
California were husbands or lovers of the defendants.

More than half of the persons executed since 1943 killed
their victims during the course of a robbery or a sexual assault

(This footnote is continued on next page)

-94—

are deterred by the death penalty although, as respond
ent has demonstrated, they are many.

That the death penalty does not deter all does not
render it an ineffective, much less an unconstitutional,
punishment. As one authority metaphorically illustrates
the point,

“A judge once said, ‘The death penalty is a
warning, just like a lighthouse throwing its beams
out to sea. We hear about shipwrecks, but we do
not hear about the ships the lighthouse guides
safely on their way. We do not have proof of the
number of ships it saves, but we do not tear the
lighthouse down.”

Hoover, Statements in Favor of the Death Pen
alty, in Bedau, The Death Penalty in Ameri
ca 130, 131 (rev. ed. 1967).

In short, there is substantial and highly persuasive
evidence, founded upon hard facts and human ex
perience, of the deterrent effect of the death penalty.
In concluding that the death penalty has no deterrent
effect, the theoretical and statistical approach relied on

on a female, and another quarter of the number executed killed
their victims during the course of a burglary, a quarrel with a
crime partner, an attempt at escape, a prison fight, or while
resisting arrest. Californa Department of Corrections, Executions
in California 1943 Through 1963 (Table 30) (1965).

See also Report of New Jersey Commission to Study Capital
Punishment 8-9 (October, 1964): “The Commission is convinced
that capital punishment does deter some potential murderers from
committing capital crimes. More importantly, it is believed that
the deterrence is most signficant in the area of felony murder
and in the area of a truly premeditated crime. . . .

“No punishment would be a deterrent for a crime of passion,
or a crime committed by one who is insane. Those are not the
persons who generally receive the death penalty. An examination
of the crimes by the 14 persons presently awaiting execution in
New Jersey . . . makes it abundantly clear that this is so.”

—95—

by petitioner “goes much too far on the basis of too
little knowledge.” Powell v. Texas, 392 U.S. 514, 521
(plurality opinion of Marshall, J.). As Justice Mar
shall observed with general reference to the deterrent
effect of criminal sanctions,

“The long-standing and still raging debate over
the validity of the deterrence justification for penal
sanctions has not reached any sufficiently clear con
clusions to permit it to be said that such sanctions
are ineffective in any particular context or for
any particular group of people who are able to ap
preciate the consequences of their acts. . . .”
Id., 531.

Respondent submits that the foregoing statement has
equal validity when applied specifically to the deterrent
effect of the death penalty.

Deterrence is not the only function of punishment
served better in many instances by the existence of the
death penalty than by a maximum available punish
ment of life imprisonment. Despite petitioner’s insist
ence to the contrary, life imprisonment often provides
a woefully inadequate method of protecting society
through incapacitation or isolation of the prisoner.

Life imprisonment in California means the prisoner
is eligible for parole after serving seven years of his
term.108 Cal. Pen. Code § 3046. The myth that
paroled murderers do not kill again evaporates upon
a perusal of the case reports. See, e.g., People v. Peete,
28 Cal. 2d 306, 308-09 [169 P.2d 924, 926] (1946),

108Life imprisonment without possibility of parole, an avail
able punishment in California only for the offense of aggravated
kidnaping (Cal. Pen. Code § 209), may in effect permit parole
of the prisoner, since the Governor may commute such a term
to one of life with possibility of parole. Cal. Const, art. V, § 8.

-96—

cert, denied, 329 U.S. 790; People v. Purvis, 52 Cal.
2d 871, 875 [346 P.2d 22, 24] (1959); People v. Gil
bert, 63 Cal. 2d 690, 702 [408 P.2d 365, 372]
(1965), vac’d 388 U.S. 263. See also People v. Robles,
2 Cal. 3d 205, 213 [466 P.2d 710, 715] (1970);
People v. St. Martin, 1 Cal. 3d 524, 529 [463 P.2d
390, 392] (1970); People v. Vaughn, 71 Cal. 2d
406, 412 [455 P.2d 122, 124] (1969); In re Cathey,
55 Cal. 2d 679, 685 [361 P.2d 426, 428] (1961);
People v. Jensen, 43 Cal. 2d 572, 578 [275 P.2d 25,
30] (1954). Testimony before a California legislative
committee has cited the cases of numerous murderers
who killed again after being paroled, of prisoners serv
ing life terms who killed in prison, and at least one
instance of a prisoner assaulting a correctional officer
after the Governor had commuted the prisoner’s sen
tence from death to life.109 Two prisoners whose
death sentences were commuted to life were paroled
only to endanger the lives of others and have their
parole revoked.110 And eleven of the persons executed
in California between 1944 and 1957 had committed
one or more murders prior to the crime for which they
were executed, a majority of these defendants having
served “life” sentences for these prior murders.111

There is always the substantial risk of escape, no
matter what precautions are taken to guard the con-

109California Senate, Hearing Report and Testimony on
Senate Bill No. 1, 1960 Second Extraordinary Session, Which
Proposed to Abolish the Death Penalty in California and to
Substitute Life Imprisonment Without Possibility of Parole 134-
37 (March 9, 1960); Los Angeles Times, Part I, p. 1 (Decem
ber 13, 1958).

110California Department of Corrections, Executions in Cali
fornia 1943 Through 1963 (Appendix V) (1965).

m 1d. (Appendix TV).

■97-
victed murderer. For example, the defendant in
People v. Hall, 199 Cal. 451, 458-59 [249 P. 859,
861] (1926), subsequent to his conviction of first
degree murder and sentence to life imprisonment,
escaped from San Quentin and thereafter committed
another first degree murder. See also People v. Gilbert,
supra; People v. Jensen, supra. The consequences of an
unsuccessful attempt at escape can be just as fatal,
as evidenced by the recent escape attempt, at the Cal
ifornia State Prison at San Quentin, of a life-term
prisoner awaiting trial on a charge of murdering a
correctional officer. His effort caused the death of
three more correctional officers and two inmates at the
hands of himself and other inmates, as well as his
own death.112

When a prisoner under life sentence is brought to
court for further proceedings, the inadequacy of such
punishment as protection for society may again become
very apparent, as was the case recently when three
San Quentin prisoners serving life sentences unsuccess
fully attempted to escape from a county courthouse
and in the process shot to death the presiding judge
and wounded the prosecuting attorney and a juror.113
Similarly the pendency of new court proceedings against
one defendant, already under sentences of death arising
from another case, recently provided the occasion for
his cohorts to steal 140 firearms intended to be used
in an armed assault on the courthouse in an attempt
to liberate him.114

1I2Los Angeles Times, Part I, pp, 1, 24 (August 22, 1971).
usId., Part I, p. 1 (August 8, 1970).
lu Id., Part I, p. 3 (August 25, 1971).

—98—

Despite the maximum security on death row, escape
attempts by prisoners under sentence of death have
also been attempted at San Quentin. In 1967 four
prisoners under sentence of death succeeded in sawing
through the bars of their cells before being apprehend
ed, and five years earlier six such prisoners did the
same, bludgeoned two guards, and seized their guns,
holding the guards hostage for three hours in an at
tempt to escape.115

Indeed the phenomenal increase in the number of
fatal assaults on correctional officers in California
prisons in the last few years,116 as reflected in the
figures below, is indicative of the fact that punishment
of prisoners by life imprisonment does not fully protect
either our custodial personnel or those inmates who
are of necessity confined with violent offenders. The
fatalites may be increasing because “ ‘the inmate of
today is more hostile, is immature, prone to act out,
and less motivated,’ ”117 and there is reason to believe
that absent the death penalty there would be a far
greater number of prison homicides, particularly by
persons serving life sentences.

ll5Los Angeles Times, Part I, p. 3 (January 31, 1967).
118Note also the recent death of 10 guards caused by in

mates in a single day at a New York prison. Los Angeles Times,
Part I, p. 1 (September 14, 1971); id., Part I, p. 1 (Septem
ber 15, 1971).

117California Assembly, Report of the Select Committee on
the Administration of Justice, Parole Board Reform in California
13 (1970). The foregoing legislative committee disputes this
conclusion of the California Department of Corrections. Ibid.

—9 9 -
TABLE E

Homicides in California Prisons, 1965-1971,
Committed by Adult Felons118

Correctional Officers Inmates Killed
Killed by Inmates by Other Inmates

1971 (Jan. 1 to Sept. 1) 6 12
1970 2 8
1969 0 15
1968 0 15
1967 0 9
1966 0 3

The chronology which follows provides one of the
more graphic illustrations of the need for an enforced
death penalty in coping with custodial homicides com
mitted by convicted murderers. The California Su
preme Court reversed the judgment of conviction which
had imposed two death sentences on a defendant, on a
rule of law that was totally novel to the California
courts, to wit, that it would henceforth (but retroactive
ly) be deemed improper for a prosecutor or a trial
judge to inform the jury of the fact that a defendant
under life sentence is eligible for parole after serving
seven years imprisonment. (Cal. Pen. Code § 3046.)
On retrial of the penalty issue, the jury imposed a
life sentence on the murder charges. While in his cell
awaiting formal sentencing, the defendant with a mat
tress cover garrotted a fellow prisoner on the other side
of the cell bars, because the prisoner owed him some
cigarettes. For the latter offense the defendant was tried
by jury and sentenced to death, only to have the Cali-

118These figures were obtained from the files of the Cali
fornia Department of Corrections.

— 100-

fornia Supreme Court, in two separate opinions filed
the same day, reverse both cases.119

Respondent submits that the unique deterrent and
incapacitative effects of the death penalty are ap
parent from the foregoing discussion. However, the con
stitutionality of the death penalty, unlike a legislative
determination of its desirability, cannot turn upon
whether the members of this Court or of some other
body find the evidence supportive of the death penalty
more persuasive than the evidence supportive of the
abolition of that form of punishment. The issue raised
by petitioner at most requires this Court to determine
whether, as petitioner in essence contends, there is no
substantial evidence upon which the Congress or the
Legislatures of 41 States could reasonably conclude that
the death penalty for certain serious offenses serves a
legitimate social purpose.

Having shown that there is indeed very substantial
evidence supportive of the legislative view that capital
punishment is necessary for the protection of society120
under the conditions presently existing, respondent be
lieves that it has met its burden vis-a-vis this facet of
petitioner’s constitutional attack on the death penalty.

It is a settled doctrine of constitutional law that the
burden of proof is on one who challenges the con
stitutionality of a statute, and that in the absence of a

119People v. Morse, 60 Cal. 2d 631 [388 P.2d 33] (1964);
In re Morse, 70 Cal. 2d 702 [452 P.2d 601] (1969); People
v. Morse, 70 Cal. 2d 711 [452 P.2d 607] (1969), cert, denied,
397 U.S. 944. Other factually similar cases have occurred in
California.

120In the sense in which both are expressions of society’s
need to protect the lives of its citizens, the state’s right to exe
cute its most dangerous criminals is analogous to its right to kill
the enemy on the battlefield and to the right of the individual
to kill in defense of himself or others.

— 101—

clear showing of unconstitutionality a state statute will
be presumed valid. McGowan v. Maryland, 366 U.S.
420, 425-26. Moreover, strong policy considerations,
involving the balancing of the respective interests which
petitioner and respondent seek to protect, dictate that
the burden of proof rest upon petitioner.

Compare the consequences of an incorrect decision
upholding the death penalty with the consequences that
would flow from an incorrect prohibition against the
States’ employing that form of punishment. It seems so
much more important to spare the lives of a substantial
number of innocent citizens and law enforcement of
ficers who would be murdered but for the death penalty,
than to spare the lives of some of our most vicious
murderers. Undoubtedly the consequences of an incor
rect decision to prohibit the death penalty would be so
much more undesirable in both social and moral
terms,121 that this Court should certainly hesitate to
overrule hundreds of years of law and human experi
ence upon the meager and speculative showing made
by petitioner.

As was stated by one former Justice of the California
Supreme Court having substantial trial experience,122

“Because of what my own eyes have seen and
my ears have heard I cannot doubt the efficacy
of the death penalty as a savior of the lives of
victims of robbers, kidnapers, burglars, and crim
inals of similar dispositions. But if there were

121 See Van Den Haag, Deterrence and the Death Penalty,
60 J. Crim. L.C. & P.S. 141, 146-47 (1969).

122People v. Love, 56 Cal. 2d 720, 744 [366 P.2d 33, 47]
(1961) (Schauer, J., dissenting).

- 102-

doubt in my mind I should resolve it in favor of
protecting the innocent victims of the future rather
than sparing the guilty killers of the past.”123

Moreover, in the event this Court were to adopt
petitioner’s expansive and fluid interpretation of the
Eighth Amendment,

. . it is difficult to see any limiting principle
that would serve to prevent this Court from be
coming, under the aegis of the Cruel and Unusual
Punishment Clause, the ultimate arbiter of the
standards of criminal responsibility, in diverse
areas of the criminal law, throughout the country.”

Powell v. Texas, 392 U.S. 514, 533 (plurality
opinion of Marshall, J .).

The adoption of petitioner’s approach might well
saddle the States with the burden of having to justify
various forms of non-capital punishment by establish
ing that life imprisonment without possibility of parole
more effectively serves the aims of punishment than life
with possibility of parole, that life is more effective
than a fixed or variable term of years, imprisonment
more effective than county jail, county jail more effec
tive than probation, and probation more effective than
a fine.

Respondent submits that in view of petitioner’s inabi1
ity to make a clear showing that the death penalty
serves no legitimate function, the federal Constitution
leaves the People of the State of California free to de
termine through their elected representatives that the
protection of society under present conditions requires
death as a form of punishment for certain serious of
fenses.

123Id., 747 [366 P.2d at 48].

— 103

D. The Death Penalty Is Not Arbitrarily or Discrim-
inatorily Imposed Upon Racial Minorities, the
Poor, or the Uneducated in California; Prisoners
Under Sentence of Death Constitute a Representa
tive Cross-Section of California’s Criminal Popula
tion

Petitioner’s challenge to the constitutionality of the
death penalty rests in part upon his assertion that
such punishment inevitably falls with an uneven hand
upon certain less advantaged segments of our society.

Petitioner, amici, and the fellow abolitionists whose
writings they cite, echo the familiar refrain that uni
versally the death penalty is arbitrarily and discrimina-
torily imposed upon members of racial minorities, the
poor, the uneducated, the mentally deficient,124 and
the “friendless.” (Pet. Br. 51-54.)

The foregoing has been so frequently mouthed as
gospel truth, albeit without much of an attempt to sup
port it factually, that a challenge to such dogma may
seem almost heretical. However, respondent has found
that illuminating data drawn from the operation of
California’s system of criminal justice effectively puts
the lie to these blind assertions.

The files of the 102 persons currently housed in the
California prison system under sentence of death (3
of whom have penalty retrials pending), as well as the
files of the 11 persons presently housed in county jail
facilities awaiting penalty retrials, have been examined
by counsel for respondent. Four of these persons are
women, all of whom are Caucasian and in the state

124Numerous safeguards protect the mentally deficient defend
ant at all stages in a capital case. See, e.g., Cal. Pen. Code
§§ 190.1, 1026-27, 1368-70, 3700-06, 4800-06.

-1 0 4 -

prison system.125 The 102 state prisoners are com
prised of Caucasians (including Mexican-Americans and
Puerto Ricans), Negroes, one Filipino, one American
Indian, and one Arab. The 11 county prisoners in
clude, in addition to Caucasians and Negroes, one Es
kimo.

A comparison of the percentage of Negroes on
death row in California with the percentage of Negroes
indicated in other pertinent areas of the criminal proc
ess126 yields the following results indicative of the ab
sence of racial bias in the imposition of the death pen
alty in California.

125See California State Prison at San Quentin, Execution
Data (September 1, 1971).

126The comparison is limited to Negroes since they constitute
the largest minority group and the only one for which complete
penal statistics are readily available.

TABLE F
Race and the Imposition of the Death Penalty

in California127

Caucasian Negro Other
Prisoners Executed, All

Offenses, 1930-1970 75.7% 18.2% 6.1%
Prisoners Executed, Murder,

1930-1970 75.0% 18.6% 6.4%
Under Sentence of Death, or

Awaiting New Penalty Trial,
All Offenses, September 1,
1971 65.5% 25.7% 8.8%

Received in Prison, 1st
Degree Murder, 1970 60.7% 36.7% 2.6%

Received in Prison, 2nd
Degree Murder, 1970 55.8% 39.9% 4.3%

Received in Prison, Non-
Vehicular Manslaughter,
1970 55.5% 43.8% 0.7%

Charged in Superior Court
with Homicide, 1969 59.2% 38.1% 2.7%

Received in Prison,
All Offenses, 1970 69.0% 29.3% 1.7%

127Compiled from data (to be published) in California De
partment of Corrections, California Prisoners— 1970 (Table 18A)
(197-); California Bureau of Criminal Statistics, Crime and
Delinquency in California— 1969 (Table VI-9) 117 (1970);
U.S. Bureau of Prisons, National Prisoner Statistics Bulletin:
Capital Punishment 1930-1968 (August, 1969) at 11 (Table
3).

106-

Similarly, a recent in-depth study of the death pen
alty in California concludes, contrary to the assertion
of one critic,128 that race plays no part in a jury’s
determination of punishment in a capital case. Special
Issue, A Study of the California Penalty Jury in First-
Degree Murder Cases, 21 Stan. L. Rev. 1297, 1301,
1307, 1366-68, 1421 (1969).129

As is indicated by the figures in the preceding table,
a determination whether there is racial discrimination
must take into account factors other than the percent
age of a particular minority in the general popula
tion. Most relevant is the number of offenses, punish
able by death, which are committed by the particular
minority group.180

128Amsterdam, Comment, Racism in Capital Punishment:
Impact of McGautha v California, 1 Black L. J. 185 (1971):
“The long term effect of the McGautha decision is to license a
system of capital sentencing in which individual juries are per
mitted to decree life or death as they wish, free of any legal
constraint. In a society which is deeply infected by racism, this
discretion inevitably metes out death to black men, in many
cases, simply because they are black.”

129See also Report of New Jersey Commission to Study Cap
ital Punishment 9-10 (October, 1964).

130Thus even a noted abolitionist concedes, in finding no sig
nificant indication of the influence of race in the imposition of
the .. death penalty, that “ [f] or many decades there has been
ample evidence that Negroes in this country commit three to six
times more crimes than their population ratio to whites would
lead one to expect.” Bedau, Death Sentences in New Jersey
1907-1960, 19 Rutgers L. Rev. 1, 19, 21 (1964). Interestingly
enough, 27% of the total number of arrests in the United States
are of Negroes, as are 36.4% of the number of arrests for the
seven major felonies; however, 58.9% of the arrests for murder
and non-negligent manslaughter are of Negroes. Federal Bureau
of Investigation, Uniform Crime Reports— 1970 (Table 32) 131
(August 31, 1971). One observer has concluded, “the circum
stances of life surrounding large numbers of Negroes in the
United States generate violence, assault, and murder . . .” Schues-
sler, The Deterrent Influence of the Death Penalty, 284 Annals
of the Am. Acad, of Pol. and Soc. Sci. 54, 61 (Nov. 1952.)

— 107-

Some abolitionists, however, while conceding the
absence of race as a factor in jury determination of
punishment in capital cases, assert “that the race of
the offender may be a significant indication of whether
a death sentence will be carried out or voided by
clemency.”131

The following figures graphically demonstrate that
race plays no part in the granting or denial of clemency
in capital cases in California; indeed, the percentage
of Negroes receiving commutation of their death sen
tences is shown to be identical to the percentage of
Negroes presently under sentence of death in Califor
nia (as indicated in the preceding table).

131Bedau, 19 Rutgers L. Rev., supra at 21.

108-

t a b l e G
Race and the Commutation of Death Sentences

in California 1959-1971132

Governor Edmund G. Brown
1959-1966

Total Caucasians Negroes

(35 Executions)
Governor Ronald Reagan

1967-1971

23 18 (78.3%) 5 (21.7%)

(1 Execution) 1 0 (0% ) 1 (100%)
Total 24 18 (75.0%) 6 (25.0%)

In the context of the data appearing in the pre-
ceding two tables, it is abundantly clear that the death
penalty is not discriminatorily applied against Negroes
in California, as is so frequently implied in the general
charge of universal racial discrimination in the imposi
tion of this form of punishment. Negroes are convicted
of 36.7% of the first degree murders and yet com
prise only 25% of the death sentences today. Although
Negroes comprise only 18.6% of the executions for
murder in the last forty years, they have received 25%
of the commutations in recent years.

Moreover, what is so often forgotten is the fact that
members of racial minorities, the poor, and the un
educated seem to be the persons most in need of the
protection of the death penalty, since they are appar
ently the most frequent victims of murderers. Negroes
comprise 54.9% of the murder victims in this coun
try,13® and although the most recent national poll on

182This data is compiled from the files of the California State
Prison at San Quentin.

13SFederal Bureau of Investigation, Uniform Crime Reports—
1970 (Table 22) 118 (August 31, 1971).

— 109

the death penalty does not indicate the figures by
race, it does show that that form of punishment is
favored by a majority of persons in the lowest income,
educational, and occupational groups.134

It is also clear that the opponents of capital punish
ment are incorrect in their assertion that the death
penalty is discriminatorily imposed upon the poor, or
persons of the lowest socio-economic status, because
with rare exceptions that punishment purportedly is
meted out only to unskilled laborers.135

If petitioner were correct in his characterization of
California’s death row population, it would prove little,
for the greatest number of crimes for which death is
deemed the appropriate punishment involve a killing
for economic gain.186 To put it more bluntly, as some
have more sagely observed wealthy persons do not
customarily engage in the type of activity, such as hold
ing up liquor stores, which so often results in the

184Gallup International Inc., Gallup Opinion Index 15 (Re
port No. 45, March, 1969), reprinted in Erskine, The Polls:
Capital Punishment, 34 Pub. Op. Q. 290, 292-94 (1970).

1SBSome commentators have viewed the allegedly less-advan
taged background of those defendants sentenced to death as in
dicative of affirmative jury discrimination in singling out such
persons for the imposition of capital punishment. See Special Is
sue, A Study of the California Penalty Jury in First-Degree Mur
der Cases, 21 Stan. L. Rev. 1297, 1307, 1367, 1379, 1430-31
(1969). Others have disputed this conclusion. Cf. Preface by H.
Kalven, id., 1300-01 (“the authors risk being corrupted some
what by their passion for turning their findings into constitu
tional arguments against the death penalty”).

136Appendix to Respondent’s Brief; California Department of
Corrections, Executions in California 1943 Through 1963 (Table
30) (1965).

— l l O -

needless death of the victim and the fixing of the of
fender’s punishment at death.187

In this day when commendabiy we provide counsel
and transcripts and other incidents of a legal defense
free of charge to those who cannot afford them, it is
absurd to premise an attack on the death penalty
on speculation that juries for some reason single out
poor people for the extreme penalty.

Examination of the files of the California State
Prison at San Quentin indicates that although a large
number of prisoners under current sentence of death
are unskilled laborers, the occupations indicated for
such prisoners also include electronics technician, sales
man, student, male nurse, warehouseman, food proc
essor, postal investigator, machinist, butcher, secretary,
television technician, security guard, typewriter repair
man, psychiatric technical trainee, painter, longshore
man, theater manager, blueprint reader, architect, ma
chine operator, police officer, health spa manager,
carpenter, mechanic, public relations, tailor, and pest
control worker. Other studies confirm the impression
that these individuals represent a broad cross-section

m “If statistics show that more poor persons are executed
than rich persons, it could be because more poor than rich com
mit murders. But it does not follow that they were executed be
cause they were not competently and adequately defended. The
simple fact is that rich people rarely commit murder. Obviously
they need not commit armed robberies in order to obtain money.
If a rich person kills another person, it is apt to be an impul
sive act done in a fit of emotional upheaval without the wil
fulness and premeditation required to support a murder first
degree verdict or judgment.” Coakley, Capital Punishment, 1 Am.
Crim. L. Q. 27, 34 (May, 1963). See also Report of New Jersey
Commission to Study Capital Punishment 9 (October, 1964);
Van Den Haag, Deterrence and the Death Penalty, 60 J. Crim.
L. C. & P.S. 141, 142(n.4) (1969.)

— I l l —

of skilled and unskilled occupations.138 One study in
dicates that the income level of those persons sentenced
to death for murder, as well as of those actually exe
cuted, is higher than that of the persons who received
a sentence of life imprisonment for first degree mur
der.139

Data on the education of California prisoners under
sentence of death or awaiting new penalty trials is
available in the files of all but five cases and indicates
a median (and average) education of 10th grade.140
Seven individuals have in excess of a 12th grade edu
cation.

The foregoing dispels the myth that it is, with few
exceptions, the uneducated defendant upon whom the
death penalty is imposed. Although figures on the
actual educational attainment of prisoners not under
death sentence is unavailable, it is interesting to note
that in California “the median grade achievement
scores of the male felons newly received from court
have been at the eighth grade level.”141

Respondent’s examination of the files disclosed that
only fragmentary I.Q. data are available, mainly be
cause a large number of prisoners refuse to be tested,

1885ee Einstoss, “Most Men on Death Row Are Skilled
Workmen,” Los Angeles Times, Part II, p. 6 (May 26, 1967);
California Department of Corrections, Executions in California
1943 Through 1963 (Table 7) (1965); Coakley, supra at 34-
35(n.l3).

139Coakley, supra.
li0See also California Department of Corrections, Execu

tions in California 1943 Through 1963 (Table 5) (1965), in
dicating that the greatest number of prisoners executed during
the period covered were in the grade 9-11 range.

141Califorma Department of Corrections, California Prison
ers— 1968, 36 (1969).

— 112—

but that such data ranged from a low of 70 I.Q. (two
individuals) to a high of 136 (two individuals). A
more complete sampling directed to the intelligence
level of California prisoners executed between 1943-
1963 (only one prisoner has been executed in the
State since 1963) indicates that, in the 128 cases (out
of the total 158) in which data was available, the vast
majority (80.4%) came within the range of normal in
telligence level with 8.6% borderline and 2.4% defec
tive, and 7.0% superior and 1.6% very superior.142

Petitioner’s attack on the manner in which juries
decide which murder defendants are to receive the death
penalty was in essence answered by this Court’s
opinion in McGautha v. California, 402 U.S. 183, and
respondent will add only the observation that every
one of the capital cases reviewed by the California
Supreme Court since 1965 indicates the presence of at
least one aggravating circumstance that would call for
the death penalty under the standards of the Model
Penal Code drafted by the American Law Institute and
set forth as an appendix to the opinion in McGautha,
supra at 222-25. See Appendix to Respondent’s Brief.
Thus with respect to California there is no basis for
petitioner’s assertion that juries may be arbitrarily im-

142California Department of Corrections, Executions in Cali
fornia 1943 Through 1963 (Table 6) (1965). See also Report of
New Jersey Commission to Study Capital Punishment 9 (Oc
tober, 1964): “From all the information studied by the Commis
sion so far as it affects the State of New Jersey, and from sim
ilar information found for a number of states which have made
studies, the Commission believes that the intellectual attainment
of persons sentenced to death and executed is a rough cross-
section of that of the prison population at large.”

— 113—

posing the death penalty where there is little justifica
tion for it.143

Although the possibility of error is present whenever
a decision between life and death must be made,
Williams v. New York, 337 U.S, 241, 251-52, neither
petitioner nor amici have called the attention of this
Court to a single case in which an innocent defendant
has been executed under the procedural safeguards
available in our American system of justice144 at the
trial, on appeal, and in clemency proceedings.145 But
were such a miscarriage of justice to occur, it would,
like the conviction of an innocent man in a non-capital
case, suggest improvement of the foregoing procedures
rather than abolition of the death penalty or the closing
of our prisons.

14SParadoxically petitioner argues (Pet. Br. 6) that the small
portion of murderers sentenced to death indicates arbitrariness
in the determination of penalty. Undoubtedly if a large portion
were to be sentenced to death, petitioner would argue that the
failure of juries to distinguish among offenders and offenses
amounted to cruel and unusual punishment. Respondent submits
that the decision of juries to limit the supreme penalty to the
most heinous of murders shows that juries are discriminating
rather than discriminatory.

144The assertion at pages 20-21 of the brief of amici Nat’l
Council of Churches of Christ, et al., that Caryl Chessman’s
execution would have been barred by later judicial decisions re
interpreting the elements of his crime (kidnaping) is untrue,
since that reinterpretation was founded on a statutory amend
ment effective long after Chessman was convicted, and .his case
was properly decided under the law applicable at the time.
See People v. Daniels, 71 Cal. 2d 1119, 1139 [459 P.2d 225,
238] (1969).

li5See, e.g., Cal. Pen. Code. §§ 1181(6)(7), 1239(b), 4801,
4812. Existing California statutes and case law indicate the truth
of the statement, “Trials are more likely to be fair when life is at
stake . . .” Van Den Haag, Deterrence and the Death Penalty, 60
J. Crim. L. C. & P.S. 141, 142 (1969). See also Stein v. New
York, 346 U.S. 156, 196.

— 114—

Nor have any but the most aberrant and isolated
instances been shown involving individuals who kill in
order to be killed by the state.

And the negligible rate of suicides by prisoners under
sentence of death is not compared to the equally un
known rate of suicides by prisoners serving terms of
life imprisonment146 and may well be lower, bearing
out the point of view of some that a true sentence
of life without possibility of parole may be a punish
ment more cruel than death.147

In short, petitioner has failed to demonstrate any
thing arbitrary, discriminatory, or unfair in the manner
in which the death penalty is imposed. Indeed it is
evident that prisoners under sentence of death consti
tute a strikingly representative cross-section of Califor
nia’s criminal population.

E. Death Is Not a Cruel and Unusual Punishment for
Petitioner, the Unrepentant Perpetrator of Three
Known, Separate Murders Committed for Pecu
niary Gain and Sexual Gratification

It remains only to consider briefly a few of the
salient aspects of petitioner’s own case in relation to his
claim that the death penalty for murder constitutes
cruel and unusual punishment.

Initially one is confronted with the circumstance
that on three separate occasions, petitioner wantonly

146In a recent seven-year period 195 prisoners in the cus
tody of correctional and law enforcement agencies died as the
known result of suicide in the State of California. California
Bureau of Criminal Statistics, Death in Custody—California
1962-1968 (Table III) 9 (1969).

147One defendant sentenced to death in 1958, and in 1960
commuted to life without possibility of parole, committed suicide
in 1964. California Department of Corrections, Executions in
California 1943 through 1963 (Appendix V) (1965.)

— 115—

extinguished human life—first the life of Kathleen Nell
Dodd and her five month-old male fetus, in a savage
knife attack after he had raped and robbed her; second
ly the life of Clyde I. Hardaway, in a sordid scene in
which the victim was shot in the forehead as he kneeled
to perform a sexual act upon petitioner; and thirdly the
life of Mary Winifred Eaton, a woman in her sixties,
whose age and previous befriending of petitioner was
not enough to spare her from being raped and fatally
stabbed by the venerrally-diseased petitioner. Added to
these known murders is a host of violent felonious be
havior going back to petitioner’s childhood and occur
ring between repeated incarcerations and failures at
rehabilitation. (R. 1375, 1966-67.) Even petitioner’s
present counsel concede that his crimes were “ghastly”
and “aggravated” and forego any “claim that if the
death penalty can constitutionally be inflicted for any
such crime [civilian and peacetime], it cannot be in
flicted, upon this petitioner.” (Pet. Br. 4-5.)

There is no indication that petitioner’s race played a
part in the decision of the trier of fact, a judge, to fix
petitioner’s punishment at death. On the contrary, the
trial judge’s findings (R. 4890-4992), set forth in part
at pp. 29-34 infra, indicate a compassionate considera
tion for petitioner’s not-very-disadvantaged background
and race. These findings, made on evidence summarized
at the outset of this brief, make it indisputably clear that
petitioner was not sentenced to death because of his
race or socio-economic background. He received an
education, was considered intelligent and not in any
way psychotic or mentally defective, and although
usually unemployed was apparently so at his own choos
ing, preferring to live off the hard-earned money of his
elderly mother, who did housework for a living. As

—116—

indicated in the findings of the trial court (R. 4900-01,
infra p. 32), petitioner had the opportunity to emu
late the commendable accomplishments of his two sis
ters. (R. 4604.)

Petitioner received an abundance of due process in
excess of anything required by the Constitution. Two
attorneys (whose competence the court recognized)
were appointed to represent him, a third was appointed
to consult with him on a limited basis, and $1850.00
was allowed defense counsel as expenditures for in
vestigation, psychiatric diagnosis, and medical tests.
Also granted were petitioner’s motions for discovery
of the prosecution’s evidence.148 Yet the defense was
unable to produce any evidence indicating insanity or
diminished mental capacity on petitioner’s part.

Only a wealthy man could have afforded such a
trial which, excluding pretrial and sentencing proceed
ings, extended with some interruptions from November
24, 1965, to March 16, 1966. (R., Cl, Tr. II, pp.
115, 274.) And can it for a moment be imagined that
had petitioner been Caucasian, college-educated, and
professionally employed, these circumstances would
have caused the trier of fact to sentence petitioner to
only life imprisonment in the face of petitioner’s un
repentant attitude toward three brutal slayings and an
assortment of other violent offenses? Particularly signifi
cant is petitioner’s callous bragging to other inmates
about the murders and petitioner’s statement, while
awaiting trial on the present charges, to a fellow inmate,
that “if they can’t get him out of that county jail, he was
going to kill someone else.” (R. 1133.) This demon
strates the validity of the conclusion, reached by the

i« (R ., Cl. Tr. I, pp. 4, 6, 20; Cl. Tr. II, pp. 115, 269-70;
Cl. Tr. Ill, pp. 3, 19; R. 3373.)

— 1 1 7 -

psychiatrists and the psychologist, that the likelihood
that petitioner, a person without mental disorders,
would ever be rehabilitatable was very slight. (See pp.
24-26, infra.) There certainly can be little doubt
as to whether petitioner would kill again if paroled
from a life sentence.

Finally, are petitioner and the other prisoners under
sentence of death truly the “friendless?” (Pet. Br. 54.)
Aside from all that was accorded petitioner at his trial
and on appeal in the California Supreme Court, such
an assertion has a hollow if not ironic ring on the basis
alone of petitioner’s having 14 counsel of record in the
present proceedings before this Court, quantitatively
dwarfing the resources of the State,149 in addition to
his having the support of nine briefs amici curiae on
behalf of a multitude of individuals and organizations.

Clearly the death penalty is not cruel and unusual
punishment, either as a general proposition or as im
posed under the particular facts of petitioner’s case.

CONCLUSION

In an era characterized by rising crime rates, mass
killings, inmate homicides, revolutionary bombings of
public buildings, and the assassination of political
leaders and law enforcement officers,150 it would be
highly inappropriate for a legislature to contravene the
will of the people by abolishing capital punishment,
let alone for this Court under the aegis of the Eighth

U9See also Maxwell v. Bishop, 398 F.2d 138, 141 (8th Cir.
1968), vot'd, 398 U.S. 262.

150The number of law enforcement officers murdered in the
United States rose from 37 in 1961 to 100 in 1970. Federal
Bureau of Investigation, Uniform Crime Reports— 1970, 44
(August 31, 1971.)

-118 -

Amendment to decree that this form of punishment,
expressly sanctioned by the wording of the Constitu
tion and a long line of decisions by this Court, is now
forbidden to the people of the various States.

A justice of the California Supreme Court once
noted,

“Probably all of us who have thought on the sub
ject—and particularly those of us who have some re
sponsibility in these cases (even as remote as it is at
the appellate level)-—devoutly wish that the death
penalty were no longer necessary. But we have not yet
reached the state which Sir Thomas More envisioned
.. .[of] a Utopian government.”151

As Justice Harlan stated for the Court in McGautha
v. California, 402 U.S. 183, the Court’s “function is not
to impose on the States, ex cathedra, what might seem
to us a better system for dealing with capital cases.
Rather, it is to decide whether the Federal Constitution
proscribes the present procedures . . . in these cases.”
Id., 195-196. “ [T]he question for decision is not
whether we personally approve the procedures followed
. . . The question is whether those procedures fall be
low the minimum level the Fourteenth Amendment will
tolerate.” Spencer v. Texas, 385 U.S. 554, 569 (Stew
art, J., concurring.)

Respondent earnestly maintains that nothing has
happened in the 180-year history of the Constitution,
or in the 300-year history of the imposition of capital
punishment in this nation, which can alter the fact of
the Framers’ contemplation of the death penalty as a

151People v. Love, 56 Cal. 2d 720, 745 [366 P.2d 33, 47]
(1961) (Schauer, J., dissenting).

— 119-

form of punishment of necessity available to the States
for the protection of society. It is therefore urged that
the judgment of the California Supreme Court, uphold
ing petitioner’s judgment of conviction imposing the
death penalty, be affirmed in its entirety.

Respectfully submitted,
E velle J. Younger,

Attorney General of the
State of California,

W illiam E. James,
Assistant Attorney General of

the State of California,
R onald M. George,

Deputy Attorney General of
the State of California,
Attorneys for Respondent.

APPENDIX.
TABLE H.

Defendants Under Sentence of Death
Reviewed by the California Supreme Court 1965-1971.la

C O LLA TER A L A TTA C K S W H E R E
PE R IO D D IR E C T A PPEA LS O R D E R T O SH OW CA U SE ISSU ED

W rit G ran ted—
D eath Penalty, D eath Penalty,

Conviction, Conviction,

T otal
A ffirm ed in

E ntirety
or Both

Set Aside
W rit

D enied
o r Both

Set Aside

Sept 1 Sept 1
1965 - 1967 50 25(50% ) 25(50% ) 0 4

Sept 1 Sept 1
1967- 1971 60 19(32%) 41(68% ) 0 15

Total
Sept 1 Sept 1

1965 - 1971 110 44(40% ) 66(60% ) 0 19

I CAPITAL CASES REVIEWED BY THE CALI
FORNIA SUPREME COURT BETWEEN SEP
TEMBER 1, 1965, AND SEPTEMBER 1, 1967

A. Direct Appeals Affirmed in Entirety
People v. Jacobson, 63 Cal. 2d 319 (1965) [405

P. 2d 555] (premeditation and exceptional heinousness

laSome defendants appear in this table more than once in
that their judgment imposing the death penalty was considered
in successive proceedings by the court. Defendant Gilbert in
People v. Gilbert, 63 Cal. 2d 690, appears in one instance as
both an affirmance and a reversal due to the fact that in a single
proceeding one count imposing the death penalty was reversed
and another such count affirmed. The cases comprising this
table are collected below, with references to which theory, or
which felony under the felony-murder rule, formed the basis for
fixing the murder in the first degree. Other distinguishing fea
tures of the offense particularly pertinent to the determination
of penalty are also indicated. In approximately 5% of the cases
jury trial was waived and the issue of penalty tried to the court.

The vast majority of these 129 cases involves the offense of
first-degree murder, and the remaining few involve the offenses
of kidnapping for gain with bodily harm or assault with a deadly
weapon or with force likely to produce great bodily injury, by a
prisoner under life sentence. Cal. Penal Code, §§ 187, 209,
4500.

- 2 -

—drowning of 21-month-old child; commuted by Gover
nor in 1966); People v. Cotter, 63 Cal. 2d 386 (1965)
[405 P. 2d 862] (robbery; commuted by Governor
in 1966); People v. Mathis, 63 Cal. 2d 416 (1965)
[406 P. 2d 65] (robbery); People v. Gilbert,2a 63 Cal.
2d 690 (1965) [408 P. 2d 365], vac’d, 388 U.S. 263
(robbery, victim police officer); People v. Smith, 63
Cal. 2d 779 (1966) [409 P. 2d 222] (burglary, double
murder, both victims police officers); People v. Mitchell,
63 Cal. 2d 805 (1966) [409 P. 2d 211] (robbery,
victim police officer) [defendant sole person to be
executed in California from 1964 to the present];
People v. La Vergne, 64 Cal. 2d 265 (1966) [411
P. 2d 309] (robbery); People v. Anderson, 64 Cal.
2d 633 (1966) [414 P. 2d 366] (robbery, and attempt
to kill two police officers and a fourth victim); People
v. Talbot, 64 Cal. 2d 691 (1966) [414 P. 2d 633]
(robbery, mutilation); People v. Reeves, 64 Cal. 2d
766 (1966) [415 P. 2d 35] (robbery, and attempt to
murder a second victim, court trial); People v. Seiterle,
65 Cal. 2d 333 (1966) [420 P. 2d 217] (robbery,
double murder); People v. Roberts, 65 Cal. 2d 514
(1966) [421 P. 2d 420] (robbery); People v. Thomas,
65 Cal. 2d 698 (1967) [423 P. 2d 233] (arson and
exceptional heinousness—molotov cocktail thrown into
bedroom of three-year-old victim; commuted by Gover
nor in 1967); People v. Tahl, 65 Cal. 2d 719 (1967)
[423 P. 2d 246] (robbery, double murder, subsequent
murder, subsequent attempt to kill fourth person, and
statement of intention to kill fifth person); People v.
Saterfield, 65 Cal. 2d 752 (1967) [423 P. 2d 266]
(premeditation, double murder, prior murder convie-

2aThis case is listed twice, as an affirmance as to one murder
count and as a reversal as to the other murder count.

—3—

tion); People v. Arguello, 65 Cal. 2d 768 (1967)
[423 P. 2d 202] (robbery, exceptional heinousness—
82-year-old victim beaten to death with brick and ham
mer); People v. Hillery, 65 Cal. 2d 795 (1967) [423
P. 2d 208] (rape of 15-year-old victim); People v.
Sanchez, 65 Cal. 2d 814 (1967) [423 P. 2d 800]
(murder of civilian prison employee by prisoner serving
life sentence); People v. Eli, 66 Cal. 2d 63 (1967)
[424 P. 2d 356] (rape); People v. Lookadoo, 66 Cal.
2d 307 (1967) [425 P. 2d 208] (robbery and excep
tional heinousness—setting live victim on fire with
burning gasoline, court trial; commuted by Governor in
1966); People v. Hines, 66 Cal. 2d 348 (1967) [425
P. 2d 557] (robbery); People v. Hill & Saunders,
66 Cal. 2d 536 (1967) [426 P. 2d 908] (robbery,
second murder attempted, two capital defendants);
People v. Modesto, 66 Cal. 2d 695 (1967) [427 P.
2d 788] (double murder, exceptional heinousness—
committing sexual acts upon,8a and beating to death,
nine and twelve-year-old victims with sledgehammer,
prior murder); People v. Massie, 66 Cal. 2d 899
(1967) [428 P. 2d 869] (robbery, second murder at
tempted, court trial).

B. Direct Appeals Reversed as to Death Penalty, Con
viction, or Both

People v. Anderson, 63 Cal. 2d 351 (1965) [406
P. 2d 43] (premeditation, sexual acts upon ten-year
old female victim); People v. Price, 63 Cal. 2d 370
(1965) [406 P. 2d 55] (robbery, double murder, both

3:1 Rape, sodomy, sexual perversion, and other sexual offenses
punishable under the California Penal Code, when committed
upon a child under the age of fourteen, are punishable under
section 288 of the code as the separate offense of lewd or lascivi
ous acts upon the body of a child under the age of fourteen.

victims police officers); People v. Polk & Gregg, 63
Cal. 2d 443 (1965) [406 P. 2d 641] (robbery, hein
ous mutilation of victim, and evidence of prior homi
cides by one of the two capital defendants); People v.
Luker, 63 Cal. 2d 464 (1965) [407 P. 2d 9] (rob
bery); People v. Stockman, 63 Cal. 2d 494 (1965)
[407 P. 2d 277] (robbery); People v. Arguello, 63
Cal. 2d 566 (1965) [407 P. 2d 661] (robbery, ex
ceptional heinousness— 82-year-old victim beaten to
death with brick and hammer); People v. Gilbert, 63
Cal. 2d 690 (1965) [408 P. 2d 365] (robbery);
People v. Ketchel & Sears, 63 Cal. 2d 859 (1966)
[409 P. 2d 694] (robbery, victim police officer, two
capital defendants); People v. Treloar, 64 Cal. 2d 141
(1966) [410 P. 2d 620] (robbery); People v. Ford,
65 Cal. 2d 41 (1966) [416 P. 2d 132] (robbery,
premeditation, victim police officer); People v. Butler,
65 Cal. 2d 569 (1967) [421 P. 2d 703] (robbery);
People v. Goedecke, 65 Cal. 2d 850 (1967) [423
P. 2d 777] (premeditation, quadruple murder); Peo
ple v. Nicolaus, 65 Cal. 2d 866 (1967) [423 P. 2d
787] (premeditation, triple murder); People v. Spen
cer, 66 Cal. 2d 158 (1967) [424 P. 2d 715] (rob
bery, second murder attempted); People v. Griffin, 66
Cal. 2d 459 (1967) [426 P. 2d 507] (rape); People
v. Gonzales, 66 Cal. 2d 482 (1967) [426 P. 2d 929]
(robbery, second murder attempted); People v. Pen
nington, 66 Cal. 2d 508 (1967) [426 P. 2d 942]
(double murder and sexual acts upon a female murder
victim under the age of fourteen); People v. Bandhauer,
66 Cal. 2d 524 (1967) [426 P. 2d 900] (robbery);
People v. Wilson, 66 Cal. 2d 749 (1967) [427 P. 2d
820] (premeditation, double murder); People v. Var-
num, 66 Cal. 2d 808 (1967) [427 P. 2d 772] (rob-

—5—

bery); People v. Powell & Smith, 67 Cal. 2d 32
(1967) [429 P. 2d 137] (premeditation, double mur
der, both victims police officers, two capital defend
ants); People v. Jackson, 67 Cal. 2d 96 (1967) [429
P. 2d 600] (rape, offense committed only a few days
after defendant’s release from nine-year prison term,
court trial).

C. Writs Denied After Issuance of Order to Show
Cause
None.

D. Writs Granted Setting Aside Death Penalty,
Conviction, or Both

In re Spencer, 63 Cal. 2d 400 (1965) [406 P. 2d
33] (robbery); In re Varnum, 63 Cal. 2d 629 (1965)
[408 P. 2d 97] (robbery); In re Pike, 66 Cal. 2d 170
(1967) [424 P.2d 724] (robbery, victim police of
ficer); In re Shipp, 66 Cal. 2d 721 [427 P. 2d 761]
(robbery, victim killed for 10^).

II CAPITAL CASES REVIEWED BY THE CALI
FORNIA SUPREME COURT BETWEEN SEP
TEMBER 1, 1967, AND SEPTEMBER 1, 1971

A. Direct Appeals Affirmed in Entirety
People v. Lara, 61 Cal. 2d 365 (1967) [432 P.2d

202] (robbery); People v. Beivelman, 70 Cal. 2d 60
(1968) [447 P.2d 913] (robbery and exceptional
heinousness—-victim beaten to death with hammer);
People v. Durham & Robinson, 70 Cal. 2d 171
(1969) [449 P.2d 198] [Robinson sole capital de
fendant] (robbery, defendant parole escapee, victim
police officer); People v. Aikens, 70 Cal. 2d 369
(1969) [450 P.2d 258] (rape and robbery, double
murder, prior murder, court trial) [the case at bar];

— 6 — -

People v. Varnum, 70 Cal. 2d 480 (1969) [450 P.2d
553] (robbery); People v. Hill, 70 Cal. 2d 678 (1969)
[452 P.2d 329] (robbery, rape, and sodomy upon preg
nant victim); People v. McGuatha, 70 Cal. 2d 770
(1969) [452 P.2d 650] (robbery, prior murder); People
v. Tolbert, 70 Cal. 2d 790 (1969) [452 P. 2d 661]
(rape and sodomy); People v. Coogler, 71 Cal. 2d 153
(1969) [454 P.2d 686] (robberies, double murders);
People v. Nye, 71 Cal. 2d 356 (1969) [455 P.2d 395]
(robbery and rape, exceptional heinousness-—victim
stabbed 37 times); People v. Mabry, 71 Cal. 2d 430
(1969) [455 P.2d 759] (burglary, victim police of
ficer, several prior felony convictions including prison
escape); People v. Miller, 71 Cal. 2d 459 (1969) [455
P.2d 377] (commission of sexual acts upon eight-
year-old victim); People v. Pike, 71 Cal. 2d 595
(1969) [455 P.2d 776] (robbery, victim police of
ficer); People v. Robles, 71 Cal. 2d 924 (1969) [458
P.2d 67] (robbery and premeditation); People v.
Floyd & Milton, 1 Cal. 3d 694 (1970) [464 P.2d 64]
(robbery of municipal bus driver, two capital defend
ants); People v. King, 1 Cal. 3d 791 [463 P.2d 753]
(robbery); People v. Terry, 2 Cal. 3d 362 (1970)
[466 P.2d 961] (robbery and exceptional heinousness
—pharmacist stabbed 17 times with scissors and shot
four times); People v. Archerd, 3 Cal. 3d 615 (1970)
[477 P.2d 421] (murder of six persons by insulin in

jections. )

B. Direct Appeals Reversed as to Death Penalty,
Conviction, or Both

Peope v. Bassett, 69 Cal. 2d 122 (1968) [443
P.2d 777] (premeditation, double murder); People v.
McDowell, 69 Cal. 2d 737 (1968) [447 P.2d 97]

—7—
(robbery); People v. White, 69 Cal. 2d 751 (1968)
[446 P. 2d 993] (robbery and rape); People v.
Chacon & Noah, 69 Cal. 2d 765 (1968) [447 P.2d
106] (near-fatal assault by prisoners serving life
terms, numerous prior felonies committed by each of
the two capital defendants, including murder by one
and assault with a deadly weapon on a police officer
by another); People v. Anderson, 70 Cal. 2d 15
(1968) [447 P.2d 942] (premeditation, sexual acts
upon ten-year-old female victim); People v. Risenhoov-
er, 70 Cal. 2d 39 (1968) [447 P.2d 925] (robbery
and premeditation); People v. Bradford, 70 Cal. 2d
333 (1969) [450 P.2d 46] (premeditation and excep
tional heinousness—death caused by pouring sulphuric
acid on victim); People v. Terry, 70 Cal. 2d 410
(1969) [454 P.2d 36] (robbery, victim police offi
cer); People v. Teale, 70 Cal. 2d 497 (1969) [450
P.2d 564] (robbery); People v. Sanchez, 70 Cal. 2d
562 (1969) [451 P.2d 74] (murder of civilian prison
employee by prisoner serving life term); People v.
Fain, 70 Cal. 2d 588 (1969) [451 P.2d 65] (rape
and sex perversion, with prior rape and prior attempted
rape); People v. Morse, 70 Cal. 2d 711 (1969)
[452 P.2d 607] (premeditation, while awaiting sen
tencing on retrial for two capital murders defendant
killed fellow prisoner who owed him cigarettes);
People v. Osuna & Gorman, 70 Cal. 2d 759 (1969)
[452 P.2d 678] (robbery, two capital defendants);
People v. Goodridge, 70 Cal. 2d 824 (1969) [452
P.2d 637] (rape and sodomy, committed probably
after victim’s death, 107 stab wounds); People v.
Graham. & Shepard, 71 Cal. 2d 303 (1969) [455
P.2d 153] [Shephard only capital defendant] (rob
bery); People v. O’Brien, 71 Cal. 2d 394 (1969)

[456 P.2d 969] (robbery, victim police officer);
People v. Vaughn, 71 Cal. 2d 406 (1969) [455 P.2d
122] (assault on prison guard by prisoner serving life
sentence, defendant having previously killed three fel
low prisoners); People v. Quiche, 71 Cal 2d 502
(1969) [455 P.2d 787] (premeditation and excep
tional heinousness—subsequent sexual intercourse with
victim’s corpse); People v. Williams, 71 Cal 2d 614
(1969) [456 P.2d 633] (robbery, strangulation);
People v. Ketchel, 71 Cal. 2d 635 (1969) [456 P.2d
660] (robbery, victim police officer); People v.
Schader, 71 Cal. 2d 761 (1969) [457 P.2d 841] (rob
bery, victim police officer); People v. McClellan, 71
Cal. 2d 793 (1969) [457 P.2d 871] (robbery, double
murder); People v. Stanworth, 71 Cal. 2d 820 (1969)
[457 P.2d 889] (rape, double murder of 14 and 15-
year-old girls, with numerous other prior and subse
quent acts of rape, sexual perversion, and robbery);
People v. Gardner, 71 Cal. 2d 843 (1969) [457 P.2d
575] (robbery); People v. Washington, 71 Cal. 2d
1061 (1969) [458 P.2d 479] (arson, three other
murders attempted, exceptional heinousness — defend
ant poured gasoline into children’s bedroom and lit it,
17 month-old victim dying two weeks later); People
v. Daniels & Simmons, 71 Cal. 2d 1119 (1969) [459
P.2d 225] (three counts against two capital defendants
of kidnaping for gain with bodily harm, each in the
vicinity of a university campus and involving rape, and
one involving sexual perversion; prior rapes and prior
kidnaping); People v. Coleman, 71 Cal. 2d 1159
(1969) [459 P.2d 248] (robbery); People v. Wash
ington, 71 Cal. 2d 1170 (1969) [459 P.2d 259]
(robbery); People v. Brawley & Baker, 1 Cal. 3d
277 (1969) [461 P.2d 361] (robbery, two capital

—9—

defendants); People v. Mosher, 1 Cal. 3d 379 (1969)
[461 P.2d 659] (robbery and rape); People v. Wilson
1 Cal. 3d 431 (1969) [462 P.2d 22] (premeditation,
double murder); People v. St. Martin, 1 Cal. 3d 524
(1970) [463 P.2d 390] (fatal assault on prisoner by
another prisoner serving a life term for a previous
murder and robbery); People v. Bandhauer, 1 Cal 3d
609 (1970) [463 P.2d 408] (robbery); People v.
MacPherson, 2 Cal. 3d 109 (1970) [465 P.2d 17]
(robbery); People v. Robles, 2 Cal. 3d 205 (1970)
[466 P.2d 710] (murder, premeditated and fatal as
sault on prisoner by another prisoner serving a life
term for prior murder and assault with intent to com
mit murder); People v. Tidwell (William), 3 Cal. 3d
62 (1970) [473 P.2d 748] (robbery, triple murder);
People v. Tidwell (Robert), 3 Cal. 3d 82 (1970)
[473 P.2d 762] (robbery, triple murder).

C. Writs Denied After Issuance of Order to Show
Cause

None.

D. Writs Granted Setting Aside Death Penalty,
Conviction, or Both

In re Anderson & Saterfield, 69 Cal. 2d 613 (1968)
[447 P.2d 117] (as to Anderson: robbery, and at
tempt to kill two police officers and a fourth victim;
as to Saterfield: premeditation, double murder, prior
murder conviction); In re Mathis, 70 Cal. 2d 467
(1969) [450 P.2d 290] (robbery); In re Morse, 70
Cal. 2d 702 (1969) [452 P.2d 601] (premeditation,
double murder); In re Arguello, 71 Cal. 2d 13 (1969)
[452 P.2d 921] (robbery, exceptional heinousness—
82-year-old victim beaten to death with brick and
hammer); In re Eli, 71 Cal. 2d 214 (1969) [454 P.2d

10—

337] (rape); In re Seiterle, 71 Cal. 2d 698 (1969)
[456 P.2d 129] (robbery, double murder); In re
Hillery, 71 Cal. 2d 857 (1969) [457 P.2d 565] (rape
of 15-year-old victim); In re Hill & Saunders, 71 Cal.
2d 997 (1969) [458 P.2d 449] (robbery, second
murder attempted, two capital defendants); In re Tahl,
1 Cal. 3d 122 (1969) [460 P.2d 449] (robbery,
double murder, subsequent murder, subsequent attempt
to kill fourth person, and statement of intention
to kill fifth person); In re Kemp, 1 Cal. 3d 190 (1969)
[460 P.2d 481] (rape, with rapes of two other victims);
In re Lara, 1 Cal. 3d 486 (1969) [462 P.2d 380]
(robbery); In re Roberts, 2 Cal. 3d 892 (1970) [471
P.2d 481] (robbery); In re Saunders, 2 Cal. 3d 1033
(1970) [472 P.2d 921] (robbery, second murder
attempted).

Service of the within and receipt of
thereof is hereby admitted this...............
of September A.D. 1971.

a copy
..... day

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