Crampton v. Ohio Brief for the Petitioner

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M ir in c w a r r — MM, , - . . , , ,  . ,  i i Mhii»  m k  ,,

IN THE

Supreme T,-.,' ( u * 
F I ! .  !■; I)

^S S & sS S : 1970

Supreme Court of the Unites® !™ 1 CLCBK
OCTOBER TERM, 1970

No. 204

JAMES EDWARD CRAMPTON,

Petitioner,

v.

THE STATE OF OHIO,

Respondent.

ON WRIT OF CERTIORARI TO THE
SUPREME CC JUT OF OHIO

BRIEF FOR THE PETITIONER

Of Counsel:
D in R. McCullough 
Villiam T. Burgess 
W;iliam D. Driscoll 
Gerald S. Lubilsky 
Gary Rodman Cooper
t  *■ w a a VM GSiSSW - j  uM Q  j  ■

John J. Cal
801 Security i uildi 
Toledo, Ohio 43604

Attorney fo; Petitioi er

- "*•' **• • r»-; ■. rjut-'jt > -.f■ ,r’»



(i)

TABLE OF CONTENTS
Page

OPINION BELOW............................................................................  1
JURISDICTION..............................................................................  1
QUESTIONS PRESENTED ........................................................... 2
CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED.................................................  2
STATEMENT............................................................................ • •• 3
SUMMARY OF ARGUMENT........................................................  7
ARGUMENT:

I. The Procedure in Capital Cases Where the Trier of 
Fact Determines Both Guilt and Punishment in a 
Single Verdict Violates the Fifth Amendment to the 
Constitution Because an Accused Person Is Compelled 
To Relinquish His Right Against Self-Incrimination 
When He Testifies on the Question of Punishment ...........  9

II. The Practice of Granting the Trier of Fact Absolute 
and Uncontolled Discretion in Capital Cases To 
Choose Between the Penalties of Life and Death Vio­
lates the Due Process and Equal Protection Clauses 
Because the Trier of Fact Makes Its Determination 
Unguided by Any Standards Fixed by L a w ..........................  19

CONCLUSION.................................................................................... 32
APPENDIX ............................................................................................33

Sentencing Proceedings ...................................................................33

ta ble  of a uth o r ities

Cases:
AshbrouK v. State, 49 Ohio App. 298; 197 N.E. 214

(1935).................................................................................  10,11,23
Chambers v. Florida, 339 U.S. 227 (1 9 4 0 ) ..................................  30
Cox v. State of Louisiana, 379 U.S. 536 (1956) ........................  31
Garner v. Louisiana, 368 U.S. 157 (1961)..................................... 28



( i i )

Giaccio v. Pennsylvania, 382 U.S. 399 (1 9 6 6 )...................
Griffin v. California, 380 U.S. 609 (1965)........................
Griffin v. Illinois, 351 U.S. 12 (1956) ..............................
Hanoff v. State, 37 Ohio St. 278 (1881)...........................
Hoppe v. State, 29 Ohio App. 467; 163 N'.E. 715 (1928) 
Howell v. State, 102 Ohio St. 41 1; 131 N.E.706 (1921) 
In re Anderson, 69 Cal. 2d 613, 447 P.2d 117 (1968) . .
Irwin v. Dowd, 366 U.S. 717 (1 9 6 1 ) ................................
Jackson v. Dcnno, 378 U.S. 368 (1964)...........................
Johns v. State, 42 Ohio App. 412; 182 N.E. 356 (1931). 
Keveny v. State, 109 Ohio St. 64; 141 N.E. 845 (1923) .
Loving v. Virginia, 388 U.S. 1 (1967)................................
Malloy v. Hogan, 378 U.S. 1 (1964)..................................
Mempa v. Rhay, 369 U.S. 128 (1967) .............................
North Carolina v. Pearce, 395 U.S. 711 (1 9 6 9 ) ...............
Powell v. Alabama, 287 U.S. 45 (1932) ...........................
Rehfeld v. State, 102 Ohio St. 431; 131 N.E. 717 (1921)

9,39 
13 
30 
11

. . . .  20, 23
___ 27,31
. . . . . .  16
___ 8, 17
........... 11

30
7, 13 

13
8, 14 

17
. 20

Sabo v. State, 119 Ohio St. 231; 163 N.E. 28 (1928).................  11
Shelton v. State, 102 Ohio St. 376; 131 N.E. 704 (1921)----- 10, 23
Silsby, et al. v. State, 119 Ohio St. 314; 164 N.E. 232

...................................................................................................... 12
Simmons v. United States, 390 U.S. 377 (1968) ............... 8, 14, 16
Skinner v. Oklahoma, 316 U.S. 535 (1942).................................. 9,30
Snyder v. Massachusetts, 291 U.S. 97 (1934)...................... .. 17
Spechl v. Patterson, 386 U.S. 605 (1967).....................................A
Spencer v. Texas, 385 U.S. 544 (1967) .....................................l7> 18
State v Austin, 71 Ohio St. 317; 73 N.E. 218 (1 9 0 5 ) ..........5,9,15

State v. Caldwell, 135 Ohio St. 424; 21 N.E.2d 343 (1939)---- 21
State v. Ellis, 98 Ohio St. 21; 120 N.E. 218 (1918)................. 20,23
State v. Frolmer, 150 Ohio St. 53 (80 N.E.2d 868 (1948)) . . .  13, 20 
State Hector, 19 Ohio St. 2d 167; 249 N.E.2d 912 (1969). . . 11



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State v. Hollos, 76 Ohio App. 521; 65 N.E.2d 144 (1944) . . . .  11
State v. Karayians, 108 Ohio St. 505; 141 N.E. 334 (1923) . . .  20
State v. Murdock, 171 Ohio St. 221; 174 N.E. 2d 543

(1961)..........................................................................................  11
State v. Pierce, 44 Ohio Law Abs. 193; 62 N.E. 2d 270

(1945)..........................................................................................  21
State v. Snow, 12 Ohio Op. 200; 32 N.E.2d 36 (1938) ............  13
State v. Stewart, 176 Ohio St. 156; 198 N.E.2d 439 (1964) . . .  26
State v. Tudor, 154 Ohio St. 249; 95 N.E.2d 385 (1 9 5 0 ).......... 20
State v. Williams, 85 Ohio App. 236; 88 N.E.2d 420 (1947) . . .  11
State ex rel. Townsend v. Bushong, 146 Ohio St. 271: 65

N.E.2d 407 (1 9 4 6 )................................................... ................  5
Thompson v. Louisville, 362 U.S. 199 (1 9 6 0 )...............................  28
Townsend v. Burke, 334 U.S. 736 (1 9 4 8 )........................................  16
United States v. Jackson, 390 U.S. 570 (1 9 6 8 ) .................... 8, 14, 15
Williams v. Florida, 399 U.S. 78 (1970) .......................................  19
Winters v. New York, 333 U.S. 507 (1948 )..................................  28
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................................ 9, 32

Constitution o f the State o f Ohio:
Article I, Section 5 ........................................................................ 27
Article I, Section 9 ........................................................................ 3

Article I, Section 1 0 ...................................................................... 3
Article IV, Section 2(B )2(a)............................................................. 6

Statutes:
Federal:

28 U.S. Code, Section 1257(3)
State:

33 Laws of Ohio, 3 3 ...........................................................  3
46 Law s of Ohio, 5 2 ...........................................................  12
66 Lavs of Ohio, 3 1 3 ......................................................... 3
93 Lav/s of Ohio, 233 ...................   3

t



113 Laws of Ohio, 197 ..........
125 Laws of Ohio, 7 ...............

Ohio Revised Code:

(iv)

Section 2901.01 . . . .
Section 2901.02 ..........
Section 2901.03 . . .
Section 2901.09 ..........
Section 2901.10 ............
Section 2901.27 . . .
Section 2901.28 . . . .
Section 2907.09 ..........
Section 2907.H I . . .
Section 2945.06 .................... • 10

Section 2945.40 ............
Section 2947.05 ..........
Section 2947.06 ...............

Other Authorities:
Ohio Department of Mental Hygiene and Corrections, Ohio

Judicial Criminal Statistics, 1959 through 1968 ...................... 26
United States Department of Justice, Bureau of Prisons,

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

/



IN THE

Supreme Court of the United States
OCTOBER TERM, 1970

No. 204

JAMES EDWARD CRAMPTON,
Petitioner,

v.

THE STATE OF OHIO,
Respondent.

ON WRIT OF CERTIORARI TQ THE 
SUPREME COURT OF 011(0

OPINION BELOW

The opinion of the Supreme Court of Ohio (A. 83-88) is 
reported at 18 Ohio St. 2d 182; 248 N.E.2d 614.

JURISDICTION

The Supreme Court of Ohio entered judgment June 11, 
1969 (A. 82). The petition for a writ of certiorari was filed 
July 31, 1969, and was granted June 1, 1970, limited to 
questions 2 and 3 ol the petition. (A. 89) Tilt- juiisdiction 
of this Court rests on28 U.S. Code, Section 1257(3).

{



2

QUESTIONS PRESENTED

1. Whether the Ohio statute which provides that the 
trier of fact shall determine both guilt and punishment in 
a single verdict in cases of murder in the first degree vio­
lates petitioner’s right to be free from self-incrimination.

2. Whether the Ohio statute which provides tiiat the 
trier of fact may grant or withhold a recommendation of 
mercy in cases of murder in the first degree, and which 
provides no standards or criteria to assist the trier of fact 
in making such determination, violates petitioner’s right to 
due process and equal protection of the law.

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

This case involves the Fifth and Fourteenth Amendments 
to the Constitution of the United States.

The statutes of the State of Ohio involved in this case 
are Section 2901.01 of the Ohio Revised Code:1

No person shall purposely, and either of deliberate 
and premeditated malice, or by means of poison, or 
in perpetrating or attempting to perpetrate a rape, 
arson, robbery, or burglary, kill another.
Whoever violates this section is guilty of murder in 
the first degree2 and shall be punished by death

1AJ1 section references are to the Revised Code of Ohio, effective 
October 1, 1953. There is no official edition of the Revised Code, 
but Page’s Ohio Revised Code Annotated (1969 edition) or Baldwin’s 
Ohio Revised Code and Service (1964 edition) are accepted by the 
Ohio courts as authentic.

2ln addition to the crime defined in Section 2901.01 Ohio 
Revised Code, Ohio has four other crimes of murder in the first 
degree in which the penalty is death unless the jury recommends 
mercy: murder by obstructing a railroad (Section 2901.02); killing 
a prison guard (Section 2901.03); killing a police officer in the 
discharge of his duties (Section 2901.04); and abduction resulting in 
death (Section 2901.28). There are two crimes for which the death



3

unless the jury trying the accused recommends 
mercy, in which case the punishment shall be 
imprisonment for life.
Murder in the first degree is a capital crime under 
Section 9 and 10 of Article 1, Ohio Constitution.3

and Section 2947.05 of tire Ohio Revised Code:
Before sentence is pronounced, the defendant must 
be informed by the court ot the verdict of the jury, 
or the finding of the court and asked whether he 
has anything to say as to why judgment should not 
be pronounced against him.4

STATEMENT

Petitioner, James Edward Cranrpton, a 40-year old man, 
was indicted for murder in the first degree lor the killing 
of his wife, Wilma Jean, on January 1 7, 1967. 1 hey. had 
been married almost four months at that time. (A. 57)

On November 2, 1966, about six weeks after the mar­
riage, petitioner was admitted as a patient to the psychiatric 
ward of a private hospital tor treatment for excessive use

penalty is mandatory: killing the President, Vice President, or person 
ip line of succession (Section 2901.09), and killing the Governor or 
lieutenant Governor of any state (Section 2901.10). Abducting 
a person for the purpose of extortion is punishable by death unless 
the jury recommends mercy (Section 2901.27).

3Effective October 1, 1953. 125 Laws of Ohio 7. The death
penalty was mandatory on conviction of murder in the first degree 
prior to April 3, 189 8. 33 Laws of Ohio 33 (1835). On that date 
the General Assembly provided that the jury could recommend 
mercy, in which case the penalty would be life imprisonment. 93 
Laws of Ohio 233. Since that time, the first dcgice murder statute 
has remained essentially intact in the definition of the crime and the 
provision permitting the jury to select punishment.

4Effective October 1, 1953. 125 Laws of Ohio 7; 113 Laws of 
Ohio 197 (1929). Original enactment: 66 Laws of Ohio 3i3 (1869).



•fctV-r..

of drugs. (A. 10) After two days there he was transferred 
by his wife to Toledo State Hospital, where he remained 
confined under order of the Probate Court of Lucas 
County, Ohio (A. 12). until late December, 1966, when he 
w’as released to his wife for a “ trial visit” during the 
Christmas holiday season. (R. 61)

After the holidays when his wife sought to have him 
return to the State Hospital, petitioner objected and left 
the family home. (R. 61) He joined a male friend, one 
Collins, in Pontiac, Michigan, and during a two-week period 
they travelled by automobile to places in Michigan and 
Indiana, frequently taking drugs which they procured with 
stolen money. (R. 60-72)

On January 17, 1967, they broke into the home ol 
petitioner’s mother-in-law, near Toledo, where petitioner 
obtained a .45-caliber pistol. At about 7:00 p.m. that 
evening, Collins drove petitioner to the Crampton residence 
in Toledo. There they parted and petitioner was admitted 
tc the house by his wife. (R. 73-83)

At approximately 11:00 p.m. the same evening, peti­
tioner was arrested while driving a stolen automobile. 
(R. 136-140) Police officers on searching the car, found a 
.45-caliber pistol wedged between the front seats. (R. 140) 
The following morning the body of petitioner’s wife 
v/as found in her home. She had been shot in the face. 
(R. 132; 194)

On arraignment, petitioner entered pleas of “not guilty” 
and “not guilty by reason of insanity” to the charge ol 
murder in the first degree. (A. 4) The 'court ordered the 
petitioner committed to Lima State Hospital lor 30 days 
observation.5 (A. 1, 76) Following psychiatric examina-

sSection 2945.40, Ohio Revised Code: “In any case in which 
insanity is set up as a defense, or in which present insanity of the 
accused is under investigation by a court or jury, lire court may 
commit the defendant to a local hospital for th e mentally ill, or 
’lie Lima state hospital, where the defendant s nail remain under 
observation until such time as the court directs n ot exceeding one 
month. * * *”

4



tion it was reported to the court that petitioner was sane, j 
that he understood the nature of the charge against him 
and could counsel in his own defense.6 The court then 
ordered the cause to proceed to trial before a jury.
(A. 1, 76)

To support his plea of not guilty by reason of insanity,7 
petitioner presented testimony of a psychiatrist (R. 376- 
405), and offered into evidence the medical records of his 
case from Toledo State Hospital (Excerpt, A. 5-20; R. 406) 
and Lima State Hospital (Excerpt, A. 21-48; R. 407). Peti­
tioner’s mother, Charlotte Williams, testified about peti­
tioner’s childhood, education and general background.
(A. 49-59)

Petitioner did not testify at his trial.
The issues of his guilt, punishment and insanity were 

simultaneously tried and submitted to the jury. (A. 63-68 
(guilt); A. 68-70 (insanity)) On the issue of punishment, j 
the jury was instructed as follows:

“ If you find the defendant guilty of murder in the 
first degree, the punishment is death, unless you 
recommend mercy, in which event the punishment 
is imprisonment in the penitentiary during life.”
(A. 70)

* * *
“You have no right to discuss or consider the subject 

of punishment if your ve'dict is manslaughter in the 
first degree or murder in the second degree On

5

6Where a person committed to Lima State Hospital was of suffi­
cient soundness of mind to understand and appreciate the nature of

tally capable of furn.siting his counsel facts essential to the presenta­
tion of a proper defense, he may be returned to the proper county 
for trial. State ex rei Townsend r. Bushong, 146 Ohio Si. 271; 
65 N.K.2d 407 (1946).

7A defendant who enters a plea of not guilty by reason ot insanity 
must establisl such defense by a preponderance of the evidence. 
State v. Austin, 71 Ohio St. 317; 73 NT. 218 (1905); A. 69.

/



ittU iM i

6

those two charges, your duty is confined in the 
determination of the guilt of the defendant. In the 
event you find the defendant guilty, the duty to 
determine the punishment is. placed, by law, upon 
the court.

“You must not be influenced by any consideration 
of sympathy or prejudice. It is your duty to care­
fully weigh the evidence, to decide all disputed 
questions of fact, to apply the instructions of the 
court to your finding, and to render your verdict 
accordingly. In fulfilling your duty, your efforts 
must be to arrive at a just verdict.

“Consider all the evidence and make your findings 
with intelligence and impartiality, and without bias, 
sympathy or prejudice, so that the State of Ohio 
and the defendant will feel their case was fairly and 
impartially tried. * * *” (A. 71-72)

Petitioner was found guilty of murder in the first degree, 
without a recommendation of mercy (A. 2, 78), and the 
trial court sentenced him to death in the electric chair. 
(A. 2-3, 79)

On appeal to the Sixth District Court of Appeals of 
Ohio, the judgment of the trial court was affirmed. (A. 80)

In his appeal to the Supreme Court of Ohio,8 petitioner 
raised the question of the constitutional propriety of the 
single-verdict procedure and the question of permitting the 
jury absolute discretion in the matter of punishment. The

"Article IV, Section 2(B)2 of the Ohio Constitution was amended 
effective May 7, 1968, to provide that: “The supreme court shall 
have appellate jurisdiction as follows: (a) In appeals front courts of 
appeals as a matter of right in the following . . . (ii) Cases in which 
the death penalty has been affirmed * * Prior (o the adoption 
of tliis amendment, a defendant in a capital case where the death 
penalty had been affirmed was required to raise a substantial consti­
tutional question or a question deemed of “general and great public 
interest” to gain a review of his case in the Supreme Court. Peti­
tioner’s appeal to the Supreme Court of Ohio was filed August 13, 
1968.



7

Supreme Court of Ohio rejected the petitioner’s claims 
(A. 86-87 (single-verdict procedure); A. 88 (absolute jury 
discretion)) and affirmed the judgments of the lower 
courts. (A. 82)

SUMMARY OF ARGUMENT 

I.

Petitioner challenges Ohio’s unitary trial procedure9 
which required him to submit three issues to simultaneous 
trial by jury: (1) guilt or innocence, (2) sanity or insanity, 
and (3) punishment of life or death. On the issue of 
punishment, he was barred from presenting any evidence to 
support a plea for mercy and was prevented from exercising 
his right of allocution until after his fate had been finally 
and irrevocably decided by the jury. At the same time the 
jury was considering his guilt and punishment, he was 
forced by the procedure to submit his medical records, 
with their incriminating case histories, to sustain his defense 
of insanity.

Such procedure violates a defendant’s Fifth Amendment 
protection against self-incrimination because it unnecessarily 
compels him to choose between exercising his Fifth and 
Fourteenth Amendments right against self-incrimination 
(Malloy v. Hogan, 378 U.S. 1 (1964)) and his Fourteenth 
Amendment right “ to be heard . . . and to offer evidence of 
his own” (Specht v. Patterson, 386 U.S. 605, 610 (1967)) 
on the question of his punishment. As a result, petitioner

9In two other instances Ohio law authorizes the jury to set the 
punishment: breaking and entering an inhabited dwelling at night, 
which is punishable by life imprisonment unless the jury recommends 
mercy, in which case the punishment is 5 to 30 years imprisonment 
(Section 2907.09, Ohio Revised Code), and robbery and unlawful 
entry of a financial institution, which is punishable by life imprison­
ment unless the jury recommends mercy, in which case the punish­
ment is not less than 20 years imprisonment (Section 2907.141, Ohio 
Revised Code).



U *2 *

was forced to make “an unfree choice” (North Carolina v. 
Pearce, 395 U.S. 711, 724 (1969)). His election to exercise 
his right against self-incrimination deprived the jury of his 
testimony in mitigation, and the jury’s decision as to his 
punishment was made “upon less than all of the relevant 
evidence” (Jackson v. Dcnno, 378 U.S. 368, 389, n. 16 
(1964)). The exercise of the Fifth Amendment privilege, 
therefore, is needlessly penalized (United States r. Jackson, 
390 U.S. 570 (1968); Simmons v. United States, 390 U.S. 
377 (1968)), and the penalty is increased when the proce­
dure compels the submission to the jury ot the issue of a 
defendant’s insanity simultaneously with the issues of Ins 
guilt and punishment. The resulting confusion of issues 
prevents the “reliable and clear-cut determination” required 
by the Due Process Clause (Jackson v. Denno, supra.).

Ohio’s practice of commiting the question ot a capital 
defendant’s punishment to the exclusive and uncontrolled 
discretion of the jury results in arbitrary and discriminatory 
imposition of the death penalty. The jury is not required 
to find any requisite facts on which to base its choice, nor 
is it informed of any general rule of policy underlying the 
state’s retention of alternate punishments for the crime of 
first degree murder, which crime includes a broad range of 
homicide offenses. The jury’s determination is absolute, 
final and free from any judicial control or review.

A defendant cannot present evidence to support a plea 
for mercy and is barred from addressing that point until his 
final argument to the jury. This unilateral procedure pre­
vents the jury from considering all the evidence relevant to 
the question of pun shment.

The practice of permitting the jury unrestricted discretion 
prevents a capital defendant from knowing how to conduct 
his defense on an issue which may cost him his life. He is 
forced to guess at what the jury will consider significant in 
deciding whether he lives or dies.



9

This court has condemned as a violation of the Due 
Process Clause vague and standardless statutes (Giaccio v. 
Pennsylvania, 382 U.S. 399 (1966)) imposing, at the jury’s 
discretion, a small amount of costs on a defendant. Certainly 
that clause applies With equal vigor when the unbridled dis­
cretion of the jury may forfeit a human life.

The capital jury in Ohio has the “naked and arbitrary' 
power” (Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886)) to 
make “an invidious discrimination” (Skinner v. Oklahoma, 
316 U.S. 535, 541 (1942)') in violation of the constitutional 
guaranty of Equal Protection of Law.

ARGUMENT

I
THF, PROCEDURE IN CAPITAL CASES WHEREBY THE 
TRIER OF FACT DETERMINES BOTH GUILT AND 
PUNISHMENT IN A SINGLE VERDICT VIOLATES THE 
FIFTH AMENDMENT TO THE CONSTITUTION BE­
CAUSE AN ACCUSED PERSON IS COMPELLED TO 
RELINQUISH HIS RIGHT AGAINST SELF-INCRIMINA­
TION WHEN HE TESTIFIES ON THE QUESTION OF 
PUNISHMENT.

Under Ohio procedure the jury in this case was required 
to hear and decide simultaneously three issues:

1. Whether Crampton was guilty or not guilty of 
murder in the first degree;

2. Whether Crampton was sane or insane at the 
time of the alleged crime;

3. Whether Crampton should die by electrocution 
or be imprisoned for life.

On the first issue the state was required to produce evi­
dence to establish guilt. On the second issue the burden 
of proof was on petitioner to produce evidence of his mental 
state at the time of the alleged crime.10 But on the third

l0State v. Austin, 71 Ohio St. 317; 73 N.E. 218 (1905); (A. 69).



10

issue, the dominant question of whether he should live or 
die, petitioner was barred from offering any evidence. Under 
Ohio practice, a defendant in a capital case pleading for 
mercy is prohibited from introducing any evidence to sup­
port that plea, as the matter ol punishment is not recognized 
as an issue upon which evidence may be presented.11

The jury under this procedure hears evidence on the issues 
of guilt and insanity, and decides these two issues, together 
with the issue of punishment, on which no evidence is per­
mitted, at a single sitting. Not until the argument phase of 
the trial is reached is a defendant permitted to mention the 
matter of punishment to the jury, and then his counsel is 
granted merely the “privilege . . .  to argue” that question on 
the basis of evidence which has been directed only to the 
question of the defendant’s guilt.12 Petitioner, therefore, 
was compelled throughout the trial to assume simultaneously 
the paradoxical positions of contending that he was not 
guilty, but that it he were guilty, he was not responsible for 
his action because he was insane at the time; but that if he 
were both guilty and responsible for his action, he should 
be granted mercy. Such defense can only be self-destructive. 
The plea for mercy will be interpreted by the jury as a con­
fession of guilt. The plea of insanity will be viewed as an 
attempt to escape any punishment. The defendant’s alterna­
tive is to stand solely on a plea of not guilty, which means, 
in 'effect, risking all on a plea of innocence. If the jury 
returns a verdict of guilty, it may then elect to impose the 
death penalty because, as laymen, they think the defendant 
sought to trick them into believing he is innocent.

Such procedure cannot be other than mortally prejudicial 
to a defendant on trial for murder in the first degree. He 
can present no evidence on the question of punishment.

11Ashbrook v. State, 40 Ohio App. 298; 197 N.E. 214 (1935).

12Shelton v. State, 102 Ohio St. 376; 131 N.E. 704 (1921).



d  1 ~ w t l -1 „ . «»■ -

Under the defense of insanity, he may introduce evidence 
to prove that he was not responsible for his actions, hut 
while such evidence might be deemed mitigating with refer­
ence to the issue of punishment, the jury is instructed that j 
it must be considered only with reference to the issue of 
guilt.13 (A. 70) If a defendant wishes to testify in support 
of the defense of insanity, or to explain to the jury the cir­
cumstances at the time of the crime, he can do so only if 
he surrenders his right to be free from self-incrimination. 
Once he decides to take the witness stand, he subjects him­
self not only to cross-examination about the crime for which 
he is on trial, but also to impeachment—a process which, in 
Ohio, permits the state to introduce a broad spectrum of 
potentially prejudicial evidence.14 Having once testified, he 
may find himself recalled for further cross-examination in 
the state’s case in rebuttal.15 If, on the other hand, a 
defendant elects not to testify, he risks the sentence of 
death from a jury ignorant of his character and background, 
and totally unaware of any mitigating facts surrounding the: 
commission of the alleged crime. j

1 1

1 iAshbrook )>. State, 49 Ohio App. 298; 197 N.E. 214 (1935).

14Hanoff v. State, 37 Ohio St. 178 (1881); Sabo v. State, 119 
Ohio St. 231; 163 N.E. 28 (1928). Ohio lav' permits a witness to be 
cross-examined about prior convictions for felonies and statutory mis­
demeanors, State v. Murdock, 172 Ohio Sr. 221; 174 N.E.2d 543 
(1961); his connection with other similar acts, State v. Holios, lb  
Ohio App. 521; 65 N.E.2d 144 (1944); prior convictions in military 
service, Iris dishonorable discharges and numerous changes in employ­
ment, State v. Williams, 85 Ohio App. 236, 88 N.E.2d 420 (1947); 
and about pending indictments, State v. Hector, 19 Ohio St. 2d 167; 
249 N.E.2d 912 ( i 969). The limits of cross-examination of a witness 
to test his recollection or credibility must red largely within the dis­
cretion of the court and prejudicial erroi results only where the 
record clearly shows abuse of that discietien. Keveny v. State, 109 
Ohio St. 64; 141 N.E. 845 (1923).

1 sJohns i’. State, 42 Ohio App. 412; 182 N.E. 356 (1931); appeal 
dis nissed by Ohio Supreme Court, 124 Ohio St. 671 (1932).



12

Although Ohio by statute extends the right to allocution 
to criminal defendants,16 the effective exercise of that right 
is nullified in cases where the accused is convicted of mur­
der in the first degree because the jury then selects the 
punishment and pronounces sentence on the defendant. 
The subsequent sentencing by the court merely echoes the 
jury s decision and, although the court must ask the defend­
an t17 “whether he has anything to say as to why judgment 
should not be pronounced against him,” nothing he can say 
will prevent the court from imposing the punishment previ­
ously determined by the jury.18 Allocution in capital cases, 
therefore, is meaningless, and the sentencing of the defend­
ant by the court is reduced to an incantation ritual.

Once the jury has decided that a defendant must die, that 
decision stands immune trom judicial review by both the 
trial and appellate courts in Ohio. Only if the trial or

Section 2947.05, Ohio Revised Code: “Before sentencing is pro­
nounced, the defendant must be informed by the court of the verdict 
of the jury, or the finding of the court, and asked whether lie has 
anything to spy as to why judgment should not be pronounced 
against him.”

17Allocution is mandatory. Failure by the court to grant a defend­
ant the right is reversible error. Silsby, et al. v. State, 119 Ohio St 
314; 164 N.E. 232 (1928).

18Section 2947.06, Ohio Revised Code, effective September 24, 
1963 (original enactment: 46 Lews of Ohio 52 (1848)), provides 
that: “The trial court may hear testimony of mitigation of a sentence 
at term of conviction or plea, or at the next term. The prosecuting 
attorney may offer testimony on behalf of tire state, to give the 
court a true understanding of the case. The court shall determine 
whether sentence ought immediately to be imposed or the defendant 
placed on probation. * * While permitting the court to hear tes­
timony in mitigation of a sentence, this section does not authorize 
the court to set aside, modify or reverse a sentence, but only to 
delay imposition ol the sentence or to place defendant on probation. 
Although no court test o: the applicability of this section to capital 
cases appears in the records, it is doubtful that it has any reference 
to cases other than those where the judge determines and imposes 
sentence.



13

reviewing court uncovers a prejudicial error of law requiring 
that the conviction be reversed, or finds that the evidence 
was insufficient to convict, can the jury’s judgment on the 
issue of punishment be set aside.19

The Ohio procedure of a single-verdict trial, therefore, 
forced petitioner at the commencement of his trial to make 
an agonizing appraisal of the alternatives available to him. 
Under the Constitution, he was guaranteed certain procedural 
rights in the sentencing process: “an opportunity to be 
heard . . . and to offer evidence of his own.” Specht v. 
Patterson, 386 U.S. 605, 610 (1967); Mcrnpa v. Rhay, 389 
U.S. 128 (1967). By statute, he was given the right of allo­
cution. It these rights were to be exercised effectively, 
petitioner had to exercise them before sentencing, but to do 
so within the single-verdict procedure of Ohio would have 
required him to surrender his constitutional right against 
self-incrimination, Malloy v. Hogan, 378 U.S. 2 (1964); 
Griffin t\ California, 380 U.S. 609 (1965) and face cross- 
examination that could incriminate him.

;
Confronted with choosing between these alternatives at 

the risk ol his lile, petitioner declined to surrender his right 
against self-incrimination. His voice was never heard by 
those who condemned him to die, and only after his fate 
had been decided was he asked, in an empty gesture, 
whether he had anything to say as to why judgment of 
death by electrocution should not be pronounced against 
him. (R. 438-440; App. la-3a, infra)

The Ohio practice produces a bruising antagonism between 
constitutional rights at a time when a defendant is impelled 
to choose one of the two rights he wishes to assert at his 
trial— the right to speak to his sentencer or the right to

v>Stale v. Frohner, 150 Ohio Si. 53; 80 N.E.2d 868 (1048); State 
r. Snow, 12 Ohio Op. 200, 32 N.E.2d 36 (1938); appeal dismissed 
by Ohio Supreme Court, 134 Ohio St. 239 (1938); Hoppe v. State, 
29 Ohio App. 467; 163 NT. 715 (1928); appeal dismissed by Ohio 
Supreme Court, 119 Ohio St. 651 (1928).



remain silent. In effect, a defendant is coerced into choos­
ing one of the rights because he fears the consequences that 
may result from selecting the other. His choice, therefore, 
is not a completely free one'.

The dilemma confronting a defendant is far more than an 
uncertainty as to trail tactics. Under the single-verdict pro­
cedure, he is placed “in the dilemma of making an unfree 
choice.” North Carolina v. Pearce, 395 U.S. 711, 724 
(1969). He knows that on the question of his guilt, the jury 
will be instructed what to consider and what not to consider. 
He knows that on the issue of his punishment, the jury is 
free to condemn him for any reason, for no reason, or for 
twelve different reasons. The single-verdict procedure so 
intertwines the issues of guilt and punishment that a defend­
ant in deciding how to proceed in the trial of these issues is 
faced with choices which entail the exercise or relinquish­
ment of certain guaranteed rights while forewarned that the 
jury is free to make death the price of his selection.

This antagonism between fundamental rights generated by 
the Ohio procedure comes within the prohibition of Sim­
mons v. United States, 390 U.S. 377 (1968). There the 
defendant faced the dilemma of either giving up what he 
believed to be a valid Fourth Amendment claim, or “ in legal 
effect, to waive his Fifth Amendment privilege against seif- 
incrimination.” This Court held it “intolerable that one 
constitutional right should have to be surrendered in order 
to assert another.” Ibid., 394.

This Court has also held that the exercise of the Fifth 
Amendment right against self-incrimination in criminal trials 
must not be penalized or needlessly burdened. United States 
v. Jackson, 390 U.S. 570 (1968). The simultaneous submis­
sion to the jury of both the guilt and the punishment issues 
results in just such a penalty and needless burden: the
defendant must risk his life if he chooses to remain silent at 
his trial.

That the single-verdict procedure is an unnecessary burden 
on the exercise of the Fifth Amendment right is clear when

14



V.

15

the alternative procedures available to the state are con­
sidered: (1) A bifurcated jury trial, where the jury' first 
decides the guilt or innocence of the accused, and then, 1 
the verdict is guilty, hears evidence in mitigation and aggra­
vation and fixes or recommends the punishment; (-) sen­
tencing by a judge, either with or without the recommenda­
tion of the jury; and (3) the elimination ot the death penalty.

In United States v. Jackson, 390 U.S. 570 (1968), this 
Court examined the provision of the federal kidnapping 
statute granting the jury the exclusive prerogative to mfbct 
the death sentence, and considered whether such provision 
“needlessly encourages” waivers of jury trial and pleas ot 
guilty- and thereby “needlessly chill(s) the exercise ot basic 
constitutional rights,” 390 U.S., at 582, 583. The question 
in the case at bar is identical: Does the simultaneous trial 
of guilt and punishment needlessly encourage waiver of the 
right to remain silent or needlessly chill the right to allocu­
tion and to present evidence on the issue of pumshmen 
relevant to rational sentencing? “The question is not 
whether the chilling effect is ‘incidental’ rather than inten­
tional' the question is whether that effect is unnecessary and 
therefore excessive.” 390 U.S., at 582. Since the alterna­
tive modes of procedure available to the state dc> not involve 
the same destructive collision of the defendant’s rights, t\ e 
“chilling effect” of the single-verdict procedure clearly is 
unnecessary and therefore excessive.

In the case at bar the burden imposed by the single-verdict 
procedure was enhanced when petitioner sought to plead 
the affirmative defense of insanity. The jury then was 
required to consider whether petitioner was responsible tor 
his acts in addition to determining his guilt and punishment.

To sustain the defense of insanity, medical evidence of 
petitioner’s mental condition, not only at the tune of the 
crime but also prior to the crime, had to be offered by peti­
tioner to the jury.20 The medical evidence available to him

w State v. Austin, 71 Ohi St. 317; 73 N.E. 218 (1705).



] 6

consisted of the records of his confinement at Toledo State 
Hospital and Lima State Hospital, both of which records 
contained reports of his statements to psychiatrists, psycho­
logists and case workers about his convictions and imprison­
ment for prior crimes. The history of petitioner’s use ol 
drugs was, of necessity, also included in these records.

In deciding how to conduct his defense in a trial where 
the issues of guilt, insanity and punishment were decided 
simultaneously at one sitting of the jury, petitioner was con­
fronted with a second and equally wrenching dilemma aftec- 
ting his rights: either support the plea oi insanity, and
thereby permit evidence of bad character and unrelated 
crimes to reach the jury, or abandon his plea of insanity and 
risk everything on the lone plea of innocence. If he were to 
support his plea of insanity, the evidence introduced and 
directed to the question of his responsibility tor the com­
mission of the act would be certain to prejudice the jury s 
consideration of the other issues ol' guilt and punishment.
If, on the other hand, petitioner were to abandon his plea 
of insanity, he would be deprived of a possibly valid defense, 
and the jury would decide his fate unaware that he may not 
have been responsible for the commission of the crime. 
Whichever course he chose, his choice had to be made under 
the compulsion of a procedure which commanded him to 
offer countervailing evidence on the question of guilt an 
thereby prejudice himself on the question of punishment, or 
withhold such evidence and risk his life before a jury which 
would not be fully informed on all ol the facts of his case.

Here, again, the unitary trial procedure forces a choice 
and creates the “undeniable tension” between cons^ ulJonal 
rights condemned in Simmons r. United States, 39U U 
377 394 (1968). Petitioner for a second time laced the 
dilemma of surrendering one constitutional right in order to 
exercise another. The Due Process Clause guaranteed him a 
fair trial on the issues of guilt and punishment Irvin v. 
Dowd, 366 U.S. 717 (1961); Townsend v. Burke, 334 U.S. 
736 (1948), “and an adequate opportunity to be heard in



17

defense of (the charge).” Powell v. Alabama. 287 U.S. 45.
68 (1932); Snyder v. Massachusetts. 291 U.S. 97. 105 (1934). 
But the confusion of issues produced by the unitary trial 
procedure required petitioner to present his detense ot 
insanity in such manner that it could only intect the jury s 
consideration of guilt and punishment. Had he opted to 
forego presenting evidence of insanity, he would be denied 
the opportunity to assert a defense he considered valid. No 
matter which choices petitioner made in the two dilemmas 
thrust upon him by the existing procedure, on each occasion 
he had to surrender on constitutional right in order to gain 
the benefit of another. Here, he had to give up Iris right to 
a fair hearing on the issue of punishment in order to assert 
the defense of insanity.

In Jackson v. Denno, 378 U.S. 368 (1964), this Court 
recognized that the questions of the voluntary nature of a 
confession and the guilt of the accused where two issues 
which could not be considered simultaneously by a jury 
because of the substantial threat that the evidence bearing 
on one issue would contaminate the jury s consideration of 
the other, thereby preventing either issue from being fairly 
and reliably determined.” 378 U.S., at 389. The Ohio 
practice compounds this hazard ot contamination by com­
pelling the submission ot a third issue potentially prejudicial 
to the jury’s consideration ot the other two. Such pioce- 
dixre is not “fully adequate . . .  to insure a reliable and 
clear-cut determination” of the issues required by the Due 
Process Clause, 378 U.S., at 391.

Although in Spencer v. Texas, 385 U.S. 554 (1967), this 
Court declined to bring that state’s procedure of informing 
the jury' of previous convictions within the proscription 
announced in Jackson v. Denno, its refusal to do so was 
grounded on the fact that the Texas procedure involved no 
“specific constitutional right.” 385 U.S., at 565. 1 he case 
at bar focuses on petitioner’s constitutional right not to 
incriminate himself. He was denied that right when he was 
compelled to submit the issues of guilt, insanity and punish-



18

inent simultaneously to the jury. Were it not for a procedure 
which forced the trial of all three issues at once, petitioner 
would not have been compelled to submit to the jury his 
medical records, w'ith their prejudicial case histories, until 
after his guilt had been decided, and he would not have 
been forced to remain silent if he could have exercised his 
right of allocution at a time when it could have been 
effective.

The Ohio procedure coerces a defendant into choosing 
between alternatives, forewarning him that whatever choice 
he makes he is wagering his life:

On the issues of guilt and punishment:
(1) If he exercises his right against self-incrimination, he 

risks his life to a jury which will have less than all relevant 
evidence on the question of his punishment, or

(2) If he waives his Fifth Amendment right, he subjects 
himself to cross-examination and impeachment.

On the issue of insanity:
(1) If he asserts his right to plead not guilty by reason of 

insanity, he takes the risk that the medical evidence of his 
mental condition will disclose data prejudicial on the issues 
of guilt and punishment, or

(2) If he declines to plead not guilty by reason of insanity, 
he surrenders his right to a fair trial before a jury not fully 
informed of all relevant facts.

“(l)t flouts human nature to suppose that a jury would 
not consider a defendant’s previous trouble with the law in 
deciding whether he has committed the crime currently 
charged against him.” Spencer v. Texas, 385 U.S. 554 
575 (Warren, C. J., dissenting). This is no less true when the 
jury decides the question of punishment.

The unitary trial procedure followed in Ohio aided the 
state in convicting petitioner. He was forced to present evi­
dence containing prejudicial data about himself which would 
not have been obtainable by the State “ but for the defend-



19

ant’s coerced cooperation.” Williams v. Florida, 399 U.S 
78, 110 (1970) (Black, J., dissenting in part). The effect of 
this evidence upon a jury considering the issues of guilt and 
punishment was certain to be prejudicial to petitioner. Had 
he been afforded the opportunity to present evidence on the 
issue of insanity, apart from the issue of punishment, his 
right to a fair trial would have been protected; and had he 
been permitted to address the jury on the issue of his pun­
ishment, he would not have been compelled to invoke his 
Fifth Amendment right at the risk of his life. The single- 
verdict procedure in Ohio, as it presently functions in capi­
tal cases is nothing less than a practice requiring “ the 
defendant to assist the state in convicting him, or be punished 
for failing to do so.” Ibid., 399 U.S. at 115.

II
THE PRACTICE OF GRANTING THE TRIER OF FACT 
ABSOLUTE AND UNCONTROLLED DISCRETION IN 
CAPITAL CASES TO CHOOSE BETWEEN THE PENAL­
TIES OF LIFE AND DEATH VIOLATES THE DUE 
PROCESS AND EQUAL PROTECTION CLAUSES BE­
CAUSE THE TRIER OF FACT MAKES ITS DETER­
MINATION UNGUIDED BY ANY STANDARDS FIXED 
BY LAW.

Section 2901.01, Ohio Revised Code, establishes the pun­
ishment for the offense of murder in the first degree:

“Whoever violates this section is guilty of murder in 
the first degree and shall be punished by death un­
less the jury trying the accused recommends mercy, 
in which case the punishment shall be imprisonment 
for life.” 21

2‘Applicable also to a bench trial. Section 2945.06 of the Ohio 
Revised Code provides that: “In any case in which a defendant 
waives his right to lr;al by jury and elects to be tried by the 
court . . .  If the accused is charged with an offense punishable with 
death, he shall be tried by a court to be composed of three 
judges . . . Sucii judges or a majority of them may decide all ques­
tions of fact and law arising upon the trial, and render judgment

•,r-c*yr v w ^ r ^ r y v : ^ - . -



•C aZ jiaukU A Z

Whether or not such recommendation should be made “is a 
matter vested fully and exclusively in the discretion of the 
jury.” 22 The only requirement for the valid exercise of this 
discretion is that it must be based upon the evidence pre­
sented at the trial, in Howell v. State, 102 Ohio St. 41 1; 
331 N.E. 706 (1921). the Ohio Supreme Court held that it 
was not error to charge the jury in a capital case “ to con­
sider and determine whether or not, in view of all the cir­
cumstances and facts leading up to, and attending the alleged 
homicide as disclosed by the evidence, you should or should 
not make such recommendation.”

Although the Howell instruction may be viewed as estab­
lishing a Mandard to guide the jury in determining*punish- 
ment, it is a totally inadequate standard and, in subsequent 
decisions by the Ohio Supreme Court, has been diluted to a 
point where a jury in a capital case is merely told, as it was 
in the case at bar (A. 70, 71), that it has to make a choice 
of punishments on the basis of the evidence.23

Simply directing the jury to consider the bulk of the evi­
dence without advising them what to look for in the evidence 
or hov/ to analyze it with reference to the punishment ques­
tion can hardly be deemed an instruction providing the jury 
with criteria or guidelines for the exercise of its discretion.

20

accordingly. If the accused pleads guilty of murder in the first 
degree, a court composed of three judges shall examine the witnesses, 
determine the degree of the crime, and pronounce sentence accord­
ingly. In rendering judgment of conviction of an offense punishable 
by death, upon a plea of guilty, or after trial by the court without 
the intervention of a jury, the court may extend mercy and reduce 
the punishment for such offense to life imprisonment in like manner 
as upon recommendation of mercy by a jurv.” State v. Frohner, 150 
Ohio St. 53; 80 N.E.2d 868 (1948).

22Stale v. Ellin, 98 Ohio St. 21; 120 N.E. 218 (1918); State 
v. Tudor, 154 Ohio St. 249; 95 N.E.2d 385 (1950).

23Rehfeld v. State 102 Ohio St. 431; 131 N.E. 712 (1921); State 
v. Karuyians, 108 Ohio St. 505; 141 N.E. 334 (1923).



Juries attempting to function under such instruction have 
sought to draw specific standards from the court before 
determining punishment, but have been frustrated y ® 
Ohio rule which permits the jury to learn only that it has 
a discretionary choice based on the evidence of the case.

™State v. Caldwell, 135 Ohio St. 424; 21 N.E.2d 343 (1939). 
The opinion discloses the following colloquy between the foreman of 
the jury and the court, 135 Ohio St. at 425; 21 N.E.2d at 344.

“ ‘The Foreman: What are the grounds for granting mercy?
“ ‘The Court: That rests solely and wholly in your sound dis­

cretion. You should determine whether or not in your dis­
cretion mercy should be granted from a consideration of the 
evidence, the character of the crime and the attending cir­
cumstances. Are there any other questions which you have?

“ ‘The Foreman: No, I don’t think so. 1 beg your pardon.
1 have another question or two. What are extenuating cir 
cumstances? Are they something which we can determine 
in our judgment alone?

“ ‘The Court: No, if there are any, you must determine them
from the evidence.

‘“ The Foreman: Well, then, may we consider sociological
matters and environment in determining this question of 
granting mercy?

“ The Court: No—they have nothing whatever to do with
this case.

. “Thereuuon the defendant, through his counsel objected to 
the form and substance of the court’s charge and requested 
that the following instructions be given to the jury:

“ ** * * Your honor, I request that you instruct the jury in 
substance as follows: Ir. determining whether or not in your 
discretion you shall grant mercy to the defendant, you may 
consider environmental factors and sociological conditions, 
and in determining whether or not these factors exist you 
shall consider all the evidence permitted to go to you in this 
case, and all reasonable inferences to be derived therefrom. 
You may also consider, in making up your rnind on the 
question of mercy, the appearance, demeanor and actions 
of the defendant as you have seen him here in open court.

“ ‘The Court: No. 1 can not so instruct the jury.’”
The Ohio Supreme Court held that the refusal to give ihe requested 
instruction die not constitute prejudicial error. Ibid., at 428. See 
also State v. 1'iercc, 44 Ohio L. Abs. 193; (>2 N.E.2d 270 (1945), 
where another jury sought instruction on the question of punishment



22

The decision on punishment, once made by the jury, is 
absolute and final, not subject to review or modification by 
the trial court or the appellate courts unless the verdict of 
conviction is found to be legally erroneous or based on insuf­
ficient evidence.25 Thus in a capital case Ohio invests twelve 
laymen with the power of life and death to be exercised, 
after hearing evidence, at their uninhibited discretion, unre­
stricted by any reviewing authority.

What is the nature of this discretion that can deprive a 
man of his life?

First, its exercise is not required to rest upon any prere­
quisite findings of fact. Jri virtually every other judgment 
made by a jury, in either civil or criminal cases, there is a 
requirement that specific factual findings be made before a 
determination of the issue at bar can be reached, but a jury 
in a capital case is absolved from making any finding on 
which to base its selection of the punishment to be imposed.

Second, the jury is given no guide in determining which 
circumstances preclude the imposition of the death penalty.

Third, in deciding the question of punishment, the jury is 
not told which facts it must specifically consider. The court 
merely says “consider all the evidence . . .”

Fourth, there is no enumeration by the court of any facts 
or concerns which the jurors may consider.

Fifth, nor is there an enumeration of facts or concerns 
which the jury should not consider, other than the general 
injunction that the decision be made “without bias, sym­
pathy or prejudice . . .”

Sixth, the jury is given no legal norm or standard to guide 
its judgment. The equivalents of the standard of “reason­
able care” or the “reasonably -udent man” are missing in 
the charge given the jury in a capital case.

2SSee footnote 19, p. 10, supra.



Seventh, the jury is unfamiliar with even the general ob­
jectives of the state in authorizing capital juries to decree 
that some murderers may live and others die.

Eighth, assuming that judicial review were authorized, the 
exercise of such broad descretion prevents effective review.

A jury permitted to exercise discretion of this nature in 
a capital case is armed with nothing less than the raw and 
arbitrary power to kill or let live, unguided by principle, 
undirected by concern for specified relevant facts, uncon­
trolled by general rules of law, free to exercise its power for 
any reason or for no reason, and unreviewable by any other 
legal authority.

When such lethal agency is set in motion by the state, it 
i$ obligatory that the life-or-death decision it makes in the 
exercise of its discretion rest upon data as complete and 
exhaustive as can be presented by the parties who will be 
affected by the decision. But under Ohio practice, the jury 
in making its selection of men to die, is deprived by the 
single-verdict procedure ol information necessary to make a 
National selective judgment on that issue, as was argued in 
Part 1 hereof, pp. 8-16, supra. A defendant cannot put 
before the jury data which he believes it should have trom 
him in order to make a rational decision on his punishment 
unless he waives his Fifth Amendment Privilege. Even if he 
attempts to introduce evidence of prior mental iliness or 
insanity at the time of the crime, as petitioner did, he does 
so at the risk of the jury’s being prejudiced by it on the 
issue of his guilt.

In capital cases Ohio juries are instructed that the ques­
tion of punishment “should be determined from the know­
ledge the juror acquires as a juror and from the facts and 
circumstances developed or undeveloped by the evidence.”26

26Howell v. State, 102 Ohio St. 411; 131 N.E. 706 (1921)



24

ihe jury however, is prevented from acquiring any know­
ledge ot facts or circumstances which the person accused 
deems helpful to him on the issue of punishment, as the 
defendant is foreclosed by law from offering evidence “dir­
ected toward a claim for mercy.”27 Although a defendant 
is permitted “ to argue to the jury the desirability, advisa­
bility or wisdom of recommending mercy,”28effective argu­
ment on that point is virtually impossible when the defen­
dant is barred from introducing evidence which would 
provide the necessary grist for the argument. The concession 
m the law that the defendant may argue for mercy but only 
on the. basis of evidence of the commission of the crime is 
as much an empty' gesture as granting him the right of allo­
cution after his sentence has already been determined.

Indeed, a defendant is a capital case under the Ohio pro­
cedure is prohibited from even mentioning the subject of 
mercy to the jury until the argument of the case, lie cannot 
inquire of the veniremen on voir dire as to their opinions of 
the wisdom or unwisdom of a recommendation of mercy in 
the event of a conviction of murder in the first degree.29Dis­
cussion by a defendant of the question of whether he should 
be permitted to continue to live is forbidden to him at all 
times throughout the trial of the case.30 Me is denied the 
right to address the jury' on the subject of mercy' until the 
trial is all but completed, and then at the eleventh hour he 
finds himself in the position of imploring the jury for 
mercy after having denied his guilt throughout the trial. The 
effect on a jury of laymen can only be that the defendant 
attempted to deceive them as to his guilt from the outset of 
the trial, but now admits his crime and seeks their mercy.

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

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

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

°Ashbrook i>. Slate, 49 Ohio App. 298; 197 N.E. 214 (1935V 
State v. Ellis, 98 Ohio St. 21; J 20 N.E. 218 (1918).



As they enter upon their deliberations on the question of 
punishment, the jurors are totally ignorant, despite what 
they have heard at the trial, as to the reasons underlying the 
procedure which obliges .them to determine whether a man 
should live or die for having committed the crime of mur­
der in the first degree. They know only that they have the 
power of life and death over an individual, but what con­
siderations they should bear in mind in exercising that power 
have not been explained to them, except to say that they 
should “consider all evidence” and act “ impartially without 
bias, sympathy or prejudice.” They are entirely unaware of 
any general objectives the state may have had in mind .n 
imposing on them the task of deciding whether a man lives 
or dies.

If there is any objective in the procedure which authorizes 
a jury to make a choice between life and death as punish­
ment, it can only be that the state intends that the jury dif­
ferentiate among individuals who have committed the crime 
of murder in the first degree. But why differentiate? -u n ­
less there are certain purposes to be served by selecting some 
murderers to live and condemning others to die. The State 
of Ohio has not identified the objectives which it thinks 
worthy of consideration in support of its decision to retain 
death by electrocution as punishment for murder in the 
first degree; nor has it defined the objectives which impelled 
it to permit some first-degree murderers to live. When a 
sentence is imposed in the case of a non-capital crime, it is 
generally on the basis that the security of the community 
requires that the offender be incarcerated. But when a cap­
ital offender is sentenced, that premise is disregarded in the 
cases of some men, but not others, and there is no rational 
explanation of why, considering this same security of the 
community, some men are permitted to live and others are 
sentenced to die.

The range of capital murder cases and the convicted 
defendants whose punishments differ is extraordinarily



26

broad.31 The Ohio statute on murder in the first degree : 
includes murder by means of poison, or in perpetrating or 
attempting to perpetrate a rape, arson, robbery, burglary and 
those homicides committed with deliberate and premedita­
ted malice. The element of deliberate and premeditated 
malice requires no appreciable duration of time. The test in 
Ohio, as in other states, is the “existence of the reflection ” 
not the quantum of time.33 It is inconceivable that the 
legislature which authorized the death penalty in all of those 
cases intended that it should be used in very many of them
and indeed, in practice it is used in only a relatively small ’ 
number.34

31 For other capital crimes in Ohio, see footnote 2, p. 2, supra.
32Section 2901.01, Ohio Revised Code.

33Srate v. Stewart, 176 Ohio St. 156; 198 N.E.2d 439 (1964) 
A. 64-65.

34 From 1949 to 1958, there were 217 (estimated) convictions for I 
murder in the first degree in Ohio, but only 49 of the defendants 
were sentenced to death. From 1959 to 1968, the figures are as
follows:

Year

Number of First- 
Degree Murder 

Convictions

Number of Death 
Sentences Upon 

Convictions

1959 . . ......................... 24
less than 7; exact 
figure unreported

i 960 . . ......................... 24 2
1961 . . .........................  27 5
1962 . . ......................... 33 3
1963 . . • ■ . .................. 23 2
1964 . . ......................... 34 6
1965 . . ......................... 42 8
1966 . . .........................  38 5
1967 . . .........................  45 9
1968 . . ......................... 58 10

Total 348 54
The source of the 10 conviction figures is Ohio Judicial Criminal 

Statistics, an annual publication of ti e Department of Mental Hygiene 
and Correction of the State of Ohio. The source of the death-



27

The agency utilized by the State of Ohio in imposing the 
death penalty, where the accused demands a jury trial, is a 
panel of twelve laymen selected to try a particular case.35 
They assemble, hear evidence only on the question ol guilt, 
impose the punishment which they think proper in the exer­
cise of their absolute and unlimited discretion, and then dis­
perse. Before they came together as jurors, it is highly un­
likely that any of them had given any thought as to what 
considerations should influence a decision to permit a man 
to live or to condemn him to death. While they sit as jur­
ors, they are given no instructions, guidelines, standards or 
criteria to assist them in deliberating on possibly the most 
momentous decision they will make in their lifetimes, l or 
a brief span of time, the capital jury becomes an ad hoc 
legislature, forming its own but unascertainable standards 
for determining whether a man should live or die.

Petitioner submits that the Ohio practice, as above des­
cribed, violates the Due Process and Equal Protection Clauses 
of the Fourteenth Amendment for the reasons so compel- 
lingly argued in the dissenting opinion of Justice Tobriner in
In re Anderson, 69 Cal. 2d 613,__; 447 P. 2d 117, 131
(1968), in which opinion he was joined by Chief Justice 
Traynor and Justice Peters. The dissenters contended that 
a statute which confers absolute discretion on the trier ol 
fact “subjects the convicted capital defendant to a power of 
arbitrary decision” and violates the “constitutional impera-

sentence figures is the National Prisoner Statistics Bulletin entitled 
“Executions” or “Capital Punishment,” an annual publication of the 
Bureau of Prisons of the United States Department of Justice.

The 1959 1968 figures include both jury and bench trials. The 
figures for the prior period are not clear as to whether they are for 
jury trials only or for all trials.

3SA unanimous verdict is required. Article 1, Section 5, Ohio Con­
stitution: ‘The right of trial by jury shall be inviolate, except that in 
civil cases, laws may be passed to authorize the rendering of a verdict 
by the concurrence of not less than three-fourths of the jury.”



m -

28

tive that laws infringing upon life and liberty be framed in 
terms of reasonably ascertainable standards.”36

In order to satisfy the requirements of the Due Process 
Clause, a statute defining a criminal act must set forth 
standards sufficiently ascertainable to give adequate warn­
ing of which acts will be punished. Winters v. New York, 
333 U.S. 507 (1948). If it does not, it deprives a defend­
ant of his right to a reasonable opportunity to prepare and 
present his defense, and it effectively prevents judicial con­
trol and review of the relevancy and sufficiency of the evi­
dence. Garner v. Louisiana, 368 U.S. 157, 163-164 (1961); 
Thompson v. Louisville, 362 U.S. 199, 206 (1960).

Section 2901.01, Ohio Revised Code, exemplifies both 
vices of vague laws which the Due Process Clause prohibits. 
First, although the offenses for which a person may be put 
to death are clearly prescribed in the statute, the circum­
stances under which he may receive the death penalty 
rather than the penalty of life imprisonment are not ex­
pressed. A capital defendant, therefore, is prevented from 
knowing how to show that he qualifies for that class of 
capital offenders for whom the law contemplates the lesser 
penalty of life imprisonment. Secondly, the total absence 
of standards in the administration of the death penalty 
deprives a defendant in a capital case of any way to protect 
himself against an arbitrary imposition of that penalty.

The Ohio statute forces a capital defendant to become 
an unwilling participant in a deadly guessing game. He can­
not know what facts or positions will save him or cost him 
his life. The legislature has not disclosed to anyone when 
the death penalty is to be imposed or when it is not to be 
imposed. The jurors are free to take their own views ol 
the matter. With the views on capital punishment being 
what they are in contemporary society, and with justifica­
tions for the death penalty being obscure matters of per­
sonal taste, the attitudes of the jurors will range wildly.

Ibid., 447 P.2d at 138 (J9(>8).



29

Their decision to kill the defendant may derive from any 
reason, no reason, or twelve different reasons, and the de­
fendant is powerless to show that the jury may have abused 
its discretion. By this procedure, a capital trial is reduced 
to a gambling escapade in which tlie hazard ot an incorrect 
guess is death.

In Giaccio i\ Pennsylvania, 382 U.S. 399 (1966). this 
Court held that a standardless statute which authorized the 
jury to assess costs against acquitted defendants, and which 
imposed the threat of imprisonment for nonpayment ot the 
costs, violated the Due Process Clause. The following rea­
soning in Giaccio applies with equal force to Section 
2901.01, Ohio Revised Code:

“It is established that a law fails to meet the require­
ments of the Due Process Clause if it is so vague 
and standardless that it leaves the public uncertain 
as to the conduct it prohibits or leaves judges and 
jurors to decide without any legally fixed standards, 
what is prohibited and what is not in each particu­
lar case . . . Certainly one of the basic purposes of 
the Due Process Clause has always been to protect 
a person against having the Government impose bur­
dens upon him except in accordance with the laws 
of the land. Implicit in this constitutional safeguard 
is the premise that the law must be one that carries 
an understandable meaning with legal standards that 
courts must enforce.” (Italics added)

The Giaccio decision turned squarely on the proposition 
that the Due Process Clause forbade Pennsylvania to lca'.'e 
“judges and jurors free to decide, without any legally fixed 
standards,” 382 U.S. at 402-403,whether to impose upon 
a defendant a small amount of costs. Ohio permits its 
jurors the same standardless freedom in the infinitely more 
significant matter of condemning men to death. The Giaccio 
decision supports, if it does not compel, the conclusion 
that the grant of discretion to capital juries in Ohio is an 
unconstitutional practice because it provides no standards 
by which an abuse of discretion can be curbed or even sub-



jected to review. The power to decree death granted under 1 
Section .901.01, Ohio Revised Code, is broad, arbitrary j 
absolute and untouchable.

The arbitrary procedure prevailing in Ohio offends not 
only against the Due Process Clause but also against the 
Bquai Protection Clause. The “constitutional guaranties of 
due process and equal protection both call for procedures ; 
in criminal trials which allow no invidious discrimination 
between persons and different groups of persons. Both 
equal protection and due process emphasize the central aim 
of our entire judicial system—all people charged with crime 
must, so far as the law is concerned, ‘stand on an equality 
before the bar of justice in every American court.’ . . . ” 
Griffin v. Illinois, 351 U.S. 12, 17 (1956) quoting Cham­
bers v. Florida, 339 U.S. 227, 241 (1940).

The Equal I rotection Clause prohibits the arbitrary selec­
tion ot a class of individuals for the imposition of a 5pecial i 
burden. It requires as a minimum that classes created by 1 
the legislature be rationally related to a legitimate govern­
mental purpose. Loving v. Virginia, 388 U.S. 1,8-9 (1967), 
particularly where “legislation . . . involves one of the basic 
civil rights of man . . . , strict scrutiny of the classification 
winch a state makes . . .  is essential, lest unwittingly or 
otherwise, invidious discriminations are made against groups 
or types of individuals in violation of the constitutional 
guaranty of just and equal laws.” Skinner v. Oklahoma 
316 U.S. 535, 541 (1942).

In the Skinner case this Court struck down as a violation 
of the Equal Protection Clause a statute which provided for 
the sterilization ol those guilty of embezzlement, holding 
arbitrarily excluded those guilty of embezzlement, holding 
that such legislation creates an “invidious discrimination.” 
If Skinner means that a state cannot constitutionally dis­
tinguish between nembers of a certain class in the matter 
of punishment to be imposed, then Ohio cannot give its 
juries power to draw a distinction between those capital 
defendants who receive the death penalty and those who 
are sentenced to life imprisonment.



The “invidious discrimination” permitted by the Ohio 
death penalty statute is clear. The distinction in Skinner 
rested upon an arbitrary classilication which, on its tace, 
permitted such discrimination, but the Ohio statute pro­
vides absolutely no basis for differentiation between con­
victed capita! defendants.

It is this irrational differentiation permitted by standard­
less death-sentencing statutes which violates the Equal Pro­
tection provisions of the Fourteenth Amendment. As state 
in Justice Tobrincr’s dissent in In re Anderson, 69 Cal.-d
a t ___, 447 P.2d at 145-146 (1948):

“The procedure under (death sentencing statutes) 
providing no classificatory criteria whatsoever per­
mits the trier of fact arbitrarily to determine whether 
particular convicted capital defendants should suffer 
death rather than life imprisonment. Such absence 
of classification renders the current procedure insuf­
ficient to satisfy even the minimum requirement of 
the equal protection clause that different treatment 
of persons prima facie similarly situated must bear 
some rational relation to a discernible legislative 
purpose. In failing to provide any rational basis 
upon which to justify an imposition of the death 
penalty on those particular convicted capital defend­
ants sentenced to death rather than life imprison­
ment, (standardless death-sentencing statutes) make

upon whom the trier of fact imposes the death 
penalty 'as if (they) had selected a particular race 
or nationality for (that) oppressive treatment.’ (Skin­
ner v. State of Oklahoma, 316 U.S. 535, 541) It 
is clearly unconstitutional to enable a public otticial 
(let alone an ad hoc group of 1? individuals)37 to 
* * * engage in invidious discrimination among per­
sons or groups * *■ * by use of a statute providing 
persons a system of broad discretionary * + power.
(Cox v. State of Louisiana, 379 U.S. 536, 557 (1956)
. . . ; Yick Wo v. Hopkins, 1 18 U.S. 356, 366-368

* *
( M i t m u u u . v , o  .... ............................. -

► * invidious a discrimination against those

37Tliis insertion appears in the Anderson dissent, 
throughout appear in tire original.

The italics



32

(1886) . . . ) Thus, the trier of fact’s absolute power 
to impose the death penalty on a convicted capital 
defendant violates the basic interdictment of the 
equal protection clause that no person shall hold ‘a 
naked and arbitrary power to make invidious dis­
criminations against another. (Yick Wo v. Hopkins 
118 U.S. at pp. 366-368 . . .)”

CONCLUSION

The unitary trial forced petitioner to elect between con­
stitutional guaranties: his right against self-incrimination 
vis-a-vis his right to be heard on the issue of punishment. 
Petitioner’s exercise of the Fifth Amendment Privilege was 
unnecessarily penalized by the single-verdict procedure. His 
punishment was determined, therefore, by a jury having 
less than all of the relevant evidence on that issue, and 
totally without instruction as to what standards should 
guide its decision on whether he should live or die.

The unconstitutionality of the Ohio procedure is three­
fold: it violates the Self-Incrimination guaranty, the Due 
Process Clause and the Equal Protection of the Law Clause.

1 he judgment below' should be reversed and the cause re­
manded with diiections to reconsider the issue of punish­
ment in light of this Court’s opinion.

Respectfully submitted,
JOHN J. CALLAHAN 
801 Security Building 
Toledo, Ohio 43604

Of Counsel:
Dan H. McCullough 
William T. Burgess 
William D. Driscoll 
Gerald S. Lubitsky 
Caiy Rodman Cooper

September 4, 1970



33

APPENDIX

SENTENCING PROCEEDINGS 

[ R.438-440]
j

Thereupon, on November 15, 1967, the following pro­
ceedings were had:

The Court: This is Cause 44585, State of Ohio v. Janies 
Edward Crampton, indicted on the charge of murder in the 
first degree. On October 27th, through the 30th, this case 
was tried to a jury and was submitted to the jury on Octo­
ber 30lh and the jury in open court on October 30th at 
6:15 P.M. in the presence of the defendant and his coun­
sel, returned a verdict finding defendant guilty of murder 
in the first degree as charged in the indictment, with no
recommendation of mercy. j

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

is here for hearing.
(Thereupon the motion for new trial was argued to the 

court, which was overruled by the court.)
The Court: We will now proceed to the matter of sen­

tencing. Mr. Crampton, you may stand up.
It is my duty to inform you in open court that on Octo­

ber 30, 1967, in your presence, the jury that was duly em­
paneled to try this case returned a verdict finding you 
guilty of the offense of murder in the first degree with no 
recommendation of mercy. Does Mr. Crampton or his 
counsel have anything to say as to why judgment should 
not now be pronounced?

Mr. Callahan: Defendant would like to make a state­
ment, Your Honor.

The Court: Very well.



34

Mr. Crampton: Please the Court, I don’t believe I re­
ceived a fair and impartial trial because the jury was preju­
diced by my past record and the fact that I had been a 
drug addict, and 1 just believe 1 didn’t receive a fair and 
impartial trial. That’s all 1 have to say.

The Court: The defendant having failed to show suffi­
cient cause as to why judgment should not now be pro­
nounced, we now come to the question of sentence.

Stand up, Mr. Crampton. It is most unpleasant for me 
and 1 know equally unpleasant for you, but it is a duty 1 
have to perform under the statute. It is the sentence of 
the Court that in accordance with Sec. 2901.01 Revised 
Code, that I am now sentencing you to the death penalty. 
It is the sentence of the court that within 30 days of today, 
November 15, 1967, the Sheriff of Lucas County, Ohio 
shall convey you in a private and secure manner to the 
Ohio Penitentiary where you shall be received by the War­
den and safely kept there until the 13th day of March, 
1936, when the death penally will be executed in accord­
ance with Section 2949.22, Ohio Revised Code.

It is further the sentence of the Court that you pay the 
costs of prosecution, including cost of assigned counsel and 
providing of transcripts and execution is awarded therefor.

It is further ordered that the writ for the execution of 
the death penalty as heretofore pronounced by the court 
against you, shall be issued to the Sheriff of Lucas County 
carrying that order into execution and the warden of said 
Ohio Penitentiary shall make return of these proceedings 
under and by virtue of said writ to the Clerk of this court, 
who shall record said writ and the return thereof in the 
records of this cause.

Anything further from counsel?
Mr. Callahan: Nothing further.
Mr. Resnick: Nothing further.



35

The Court: There is another thing I should do and that 
is to tell you in open court that you have a right to appeal 
this jury verdict. Mr. Crainpton, and you have 30 days 
from today to file a notice of appeal, and if the attorneys 
assigned to you are satisfactory to you, I will reappoint 
them for appeal.

Mr. Crampton: Your Honor, I would rather have Mr. 
Callahan and Mr. Lubitsky because they know about the 
case.

The Court: You are satisfied with their competency
to handle the appeal?

Mr. Crampton: Yes.
The Court: Very well, that will be done.

^  • ■f'*' .',7^7" ~: P* .