Tompkins v. Texas Respondents Petition for Writ of Certiorari
Public Court Documents
February 10, 1988

Cite this item
-
Brief Collection, LDF Court Filings. Tompkins v. Texas Respondents Petition for Writ of Certiorari, 1988. dce39d59-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/49fe9499-79b6-4042-b116-dbefa656fcbf/tompkins-v-texas-respondents-petition-for-writ-of-certiorari. Accessed July 11, 2025.
Copied!
IN THE SUPREME COURT OF THE UNITED STATES October Term, 1987 PHILLIP D. TOMPKINS, Petitioner, v . STATE OF TEXAS, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE TEXAS COURT OF CRIMINAL APPEALS Emmett B. Lewis * Robert K. Huffman Kendall W. Daines MILLER & CHEVALIER, CHARTERED 655 Fifteenth Street, N.W. Suite 900 Washington, D.C. 20005-5701 (202) 626-5800 * Counsel of Record QUESTIONS PRESENTED 1. Whether the Texas Court of Criminal Appeals misapplied this Court's decision in Beck v. Alabama, 447 U.S 625 (1980) by holding that an instruction on lesser included offenses is not required in a capital case unless the evidence that would support such offenses emanates from the defendant's own evidence, even though such offenses would be supported by logical inferences that could be drawn from the prosecution's evidence. 2. Whether the Texas Court of Criminal Appeals applied the proper standards under Batson v. Kentucky, 106 S Ct. 1712 (1986) in determining whether the prosecution had satisfactorily explained its use of peremptory challenges to exclude all blacks from the jury, when the court accepted facially dubious explanations from the prosecutors while refusing to consider objective evidence in the record, which demonstrated that the prosecution's explanations for such challenges were not plausible. 3. Whether, as applied, the first and second statutory sentencing questions in the Texas capital sentencing procedure satisfy the constitutional requirements articulated by this Court in cases decided since Jurekv. Texas, 428 U.S. 262 (1976). l - LIST OF PARTIES The parties to the proceedings below and in this Court are petitioner Phillip D. Tompkins and the State of Texas. - 11 - TABLE OF CONTENTS Page OPINIONS BELOW .......................................... 1 JURISDICTION ............................................ 1 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ......... 2 'STATEMENT OF THE CASE ................................... 2 1. The Case ........................................ 2 2. The Facts ....................................... 3 3. Failure to Instruct on Lesser Included Offenses ............................... 4 4. The Batson Issue ................................ 5 5. Challenge to the Constitutionality of Texas Capital Sentencing Scheme .............. 6 REASONS FOR GRANTING THE WRIT ............................ 7 I. THE TEXAS COURT OF CRIMINAL APPEALS MISAPPLIED THIS COURT'S DECISION IN * BECK v. ALABAMA ................................. 7 1. The court of appeals erred in concluding that there was no evidence that would support the lesser included offenses ........ 8 2. The court of appeals misread Beck ........... 10 II. THE APPROACH ADOPTED BY THE TEXAS COURT OF CRIMINAL APPEALS IN ACCEPTING THE DISTRICT COURT'S BATSON FINDINGS WOULD, IF ACCEPTED, VITIATE THIS COURT'S DECISION IN BATSON v. KENTUCKY ............................... 14 III. AS APPLIED, THE FIRST AND SECOND CAPITAL SENTENCING QUESTIONS IN TEXAS DO NOT SATISFY THE CONSTITUTIONAL REQUIREMENTS FOR CAPITAL SENTENCING PROCEDURES ARTICULATED BY THIS COURT IN CASES DECIDED SINCE JUREK .............. 21 CONCLUSION ............................................... 25 - iii - TABLE OF AUTHORITIES Cases page Anderson v. Bessemer City, 470 U.S. 564 (1955) ........................................... 20 Batson v. Kentucky, 106 S. Ct. 1712 (1986) ........................................ passim Beck v. Alabama, 477 U.S. 625 (19 80) . . . ...................................... passim Brooks v. Tennessee, 406 U.S. 605 (1972 ) ........ 11 California v. Brown, 107 S. Ct. 837 (1987) 22 Carlson v. Green, 446 U.S. 14 (1980) ........................................ 23, 24 Eddings v. Oklahoma, 455 U.S. 104 (1982) ........ 22 Fisher v. United States, 328 U.S. 463 (1946) 23 Franklin v. Lynaugh, petition for cert, granted, 56 U.S.L.W. 3287 (U.S. Oct. 9, 1987) (No. 87-5546) ............................... 21, 23-24 Hopper v. Evans, 456 U.S. 605 (1982) .......................................... 7, 11 Illinois v. Gates, 462 U.S. 213 (1983) ...... 23 Jurek v. Texas, 428 U.S. 262 (1976) ....................................... 6, 21, 23 Lefkowitz v. Cunningham, 431 U.S. 801 ( 1977) . . . 7'. ....................................................................... 11 Lockett v. Ohio, 438 U.S. 586 ( 1978) .......................................... 22 Norris v. Alabama, 294 U.S. 587 (1935) .......................................... 19 People v. Turner, 42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986) .......................................... 20 Simmons v. United States, 390 U.S. 377( 1968) ........... ............................... 11 State v. Butler, 731 S.W.2d 265 (Mo. Ct. App. 1987) ................................ 20 - iv - 24 Texas v. Chambers, 688 S.W.2d 483 (Tex. Crim. App. 1984), cert, denied, 474 U.S. 864 (1985) ................... Texas Dept, of Community Affairs v. Burdino,450 U.S. 248 (19 81)'.............................. 19 Tompkins v. Texas, __ S.W.2d __, No. 68,870, slip op. (Tex. Crim. App. Oct. 7, 1987) .......... 4 United States v. Salvucci, 448 U.S. 83(1980) ........................................... 11 Vickers v. Ricketts, 798 F.2d 369 (9th Cir. 1986) (Kennedy, J. ) 7, 8 Federal Statutes: 28 U.S.C. § 1257(3) (1982) ........................... 2 28 U.S.C. § 2106 (1982) .............................. 24 Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1974) ................................. 2 Tex. Penal Code Ann. (Vernon 1974) § 6.03 .......................................... 2, 9 §19-02 .......................................... 2, 12 §19.03 ........................................ 2, 7, 12 §19.05 .......................................... 2, 9§19.07 ........................................ 2 Text: R. Stern, E. Gressman, S. Shapiro, Supreme Court Practice, (6th ed. 1986) ............ 24 Appendices: Appendix A: Opinion of Texas Court of Criminal Appeals Appendix B: Denial of Petitioner's Motion for Rehearing Appendix C: Findings of the 230th Judicial District Court of Harris County, Texas Appendix D: Tex. Code Crim. Proc. Ann. art. 37.071, Tex. Penal Code Ann. §§ 6.03, 19.02, 19.03, 19.05, 19.07 v IN THE SUPREME COURT OF THE UNITED STATES October Term, 1987 No. PHILLIP D. TOMPKINS, Petitioner, v . STATE OF TEXAS, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE TEXAS COURT OF CRIMINAL APPEALS Phillip D. Tompkins respectfully petitions for a writ of certiorari to review the judgment of the Texas Court of Criminal Appeals in this case. OPINIONS BELOW The opinion of the Texas Court of Criminal Appeals (the "court of appeals"), the denial of Petitioner's motion for rehearing by the court of appeals, and the findings of the 230th Judicial District Court of Harris County, Texas (the "district court") following the Batson hearing, are attached as Appendices A, B and C, respectively. JURISDICTION The judgment of the Texas Court of Criminal Appeals, affirming petitioner's conviction for capital murder and his sentence of death was entered on October 21, 1987. A timely motion for rehearing was denied on November 12, 1987. On January 5, 1988, Justice White extended the time for filing this petition to and including February 10, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257 ( 3 ) . CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED This case involves the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The case also involves the following Texas statutes: Art. 37.071 of the Texas Code of Criminal Procedure; and Sections 6.03, 19.02, 19.03, 19.05, & 19.07 of the Texas Penal Code. The text of these statutes appears in Appendix D. STATEMENT OF THE CASE 1. The Case. On June 11, 1981, petitioner was convicted by a jury of capital murder under Section 19.03(a)(2) of the Texas Penal Code, intentional murder committed in the commission of a robbery or kidnapping. Under Texas law, a person convicted of capital murder may be sentenced to death only if the jury answers two statutory questions in the affirmative at the conclusion of the sentencing phase of trial. The two questions are (1) "whether the conduct of the defendant that caused the death of the deceased was deliberate," Art. 37.071(b)(1) (the "first question"), and (2) "whether there is a probability that the defendant would commit criminal acts of violence [in the future]", Article 37.071(b)(2) (the "second question"). A "no" answer to either question results in a sentence of life imprisonment. If both questions are answered in the affirmative, the death penalty is mandatory. See Tex. Code Crim. Proc. Ann. art. 37.071(e).1 There is a third statutory question that is asked in some cases, but that question was not applicable here. See Tex. Code Crim. Proc. Ann. art. 37.071(b)(3). 2 The jury in this case returned affirmative answers to both questions and the trial judge assessed the petitioner's punishment at death. The Texas Court of Criminal Appeals affirmed the conviction and sentence but stayed the execution of the mandate until January 28, 1988. On February 3, 1988, Justice White further stayed the execution of the mandate pending the filing, consideration, and disposition of this petition. 2. The Facts. Petitioner's conviction was based on circumstantial evidence. He did not testify on his own behalf and presented no direct evidence in his defense. The prosecutor's evidence established that the deceased, Mary D. Berry, was seen leaving work late on the evening of January 25, 1981. R. Vol. XVIII at 30-31.2 Several hours later, her car was found abandoned at a Houston intersection with its lights on and its engine running. Her body was found oh the morning of January 27, 1981, bound and gagged and tied to a tree. R. Vol. XX at 334-378, 422-442. The cause of death was determined to be suffocation from the cloth gag that had been placed in her mouth. R. Vol. XXII at 737. The deceased had not been otherwise physically or sexually abused. R. Vol. XXII at 714-747. Several days later, various items of property belonging to the deceased were found in petitioner's possession, including her automatic bank card. R. Vol. XXII at 732, 783, 784. Petitioner was identified from photographs taken by a camera at a branch of the deceased's bank, as having used the bank card between the time the deceased was seen leaving work and the time her body was discovered. R. Vol. XVIII at 129, Vol. XIX at 231, 235-241. A bed sheet and electrical cord that had been used to bind and gag the Citations are to the record on appeal at the Texas Court of Criminal Appeals. 3 deceased were also linked to petitioner. R. Vol. XXII at 847 . 3. Failure to Instruct on Lesser Included Offenses. Petitioner was charged and convicted of capital murder under Section 19.03(a)(2) of the Texas Penal Code. That section defines the offense as "intentional[ ] . . . murder in the course of committing or attempting to commit the offenses of kidnapping . . . [or] robbery." At the conclusion of the evidence, petitioner requested that the jury be instructed on the lesser included offenses of felony murder, involuntary manslaughter and criminally negligent homicide. These non-capital offenses differ from capital murder in that they do not require a finding of intentional killing. Petitioner argued that instructions on the lesser offenses were warranted because the jury could infer from the evidence that the petitioner had not intended to kill the deceased when he left her bound, gagged, and tied to a tree. Tompkins v. Texas, S.W.2d , No. 68,870, slip op. at 140 (Tex. Crim. App. Oct. 7, 1987) (hereinafter cited as "Tompkins at ___."). The district court refused to instruct the jury on these lesser included offenses. R. App. at 187- 91. On appeal, petitioner argued that the district court's failure to instruct on the lesser included offenses violated his due process rights as explained by this Court in Beck v. Alabama, 477 U.S. 625, 637 (1980).3 Tompkins at 140. However, the Texas court of appeals affirmed the decision of the district court, concluding that there was no evidence from which the jury could have concluded that the killing of the deceased was unintentional. Tompkins at 140. The court Petitioner's appeal focused on the failure to instruct on involuntary manslaughter and criminally negligent homicide. The district court's failure to instruct on felony murder -- also a noncapital offense -- was not raised by petitioner on appeal. 4 of appeals distinguished Beck on the grounds that in Beck the defendant testified and produced evidence that would have justified a conviction for the lesser offenses, whereas here the defendant did not testify or present any evidence. Tompkins at 140. 4. The Batson Issue: Petitioner is black. During the voir dire of prospective jurors the prosecution exercised its challenges and peremptory challenges to exclude all 13 prospective black jurors. (Eight of the 13 prospective black jurors were challenged for cause and the remaining 5 were peremptorily challenged.) Petitioner moved to quash the jury on the ground that the prosecution had used its peremptory challenges in a discriminatory manner to purposely exclude prospective jurors on the basis of race. Tompkins at 112. The district court denied the motion to quash. Id. Petitioner's case was pending on appeal when this Court decided Batson v, Kentucky, 106 S. Ct. 1712 (1986). Petitioner's appeal was abated and the case was returned to the trial court with instructions to conduct a Batson hearing. The Batson hearing was held on June 3 and 4, 1987. At the Batson hearing the district court found that petitioner's prima facie showing of discrimination was rebutted by neutral non-racial explanations offered by the prosecution for its peremptory challenges of the prospective black jurors. See Appendix C. Although the Texas Court of Criminal Appeals found the prosecution's explanations for the peremptory challenges suspect on their face, it refused to "substitute [its] judgments of witness' credibility . . . for those of the factfinder," Tompkins at 118, and affirmed the trial court's Batson findings. In so doing, the court of appeals refused to consider objective evidence in the record which demonstrated that the purportedly disqualifying 5 characteristics that formed the basis of the prosecution's neutral explanations for its challenges of black prospective jurors were also present with respect to white jurors who were not challenged. Although the court of appeals acknowledged that this evidence "cast considerable doubt upon the neutral explanations offered by counsel for the state," Tompkins at 119 n.6A, it refused to consider the evidence because petitioner had not drawn these comparisons for the trial judge at the Batson hearing. Id■ The court of appeals' refusal to consider petitioner's juror comparison was inexplicable since the court itself relied on a similar juror comparison to reject the State's explanation for one of the challenges. 5. Challenge to the Constitutionality of the Texas Capital Sentencing Scheme. Prior to trial, petitioner moved to quash the indictment on the ground that the capital sentencing procedures in Texas, Tex. Code of Crim. Proc. Ann. art. 37.071, were unconstitutional in light of the standards applicable to capital sentencing procedures as articulated by this Court in cases decided after Jurek v. Texas, 428 U.S. 262 (1976). See R. Vol. IV at 9-31. The district court denied the motion to quash without opinion. Id. at 31. Petitioner's court appointed counsel did not renew this constitutional challenge on appeal. 6 REASONS FOR GRANTING THE WRIT I. THE TEXAS COURT OF CRIMINAL APPEALS MISAPPLIED THIS COURT'S DECISION IN BECK v. ALABAMA____________________ In 3eck v. Alabama, 447 U.S. 625 (1980), this Court held that, where the evidence in a capital case would support a verdict of guilty of a lesser included noncapital offense, due process requires that the jury be instructed regarding that offense. Id. at 637. See also Hopper v. Evans, 456 U.S. 605, 609 (1982); Vickers v. Ricketts, 798 F.2d 369, 371 (9th Cir. 1986) (Kennedy, J.). "[W]hen the evidence unques tionably establishes that the defendant is guilty of a serious, violent offense -- but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the 'third option' of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." Beck v. Alabama, 447 U.S. at 637. Petitioner was charged with capital murder under Section 19.03(a)(2) of the Texas Penal Code -- intentional murder committed in the course of kidnapping or robbery. Although petitioner did not testify or present any direct evidence, he argued that he was entitled to instructions on the lesser included noncapital offenses of involuntary manslaughter and criminally negligent homicide, both of which are forms of unintentional killing. Petitioner's thesis was that the evidence that he bound and gagged the deceased and left her tied to a tree did not inescapably lead to the conclusion that he intended the deceased to die. Petitioner argued that because the jury might infer from the prosecution's evidence that he did not intend to kill the deceased, he was entitled to instructions on the lesser included offenses as a matter of due process. 7 The court of appeals concluded that instructions on the lesser included offenses were not warranted because there was no evidence from which the jury could conclude that petitioner did not intend to kill the deceased. In so doing, the court distinguished Beck on the grounds that "[i]n Beck, supra, the defendant testified at trial and denied that he killed his victim or intended his victim's death, whereas here [petitioner] did not testify or present any evidence from any source that he possessed only the intent to either rob or kidnap [the deceased]." Tompkins at 140. The court of appeals erred in two respects: First, its conclusion that there was no evidence in the record that would support the lesser included offenses is not supported by the record, and the court's analysis of this point is internally inconsistent. Second, the basis on which the court of appeals distinguished Beck ignores the logic of Beck and raises serious constitutional issues not addressed in Beck. 1. The court of appeals erred in concluding that there was no evidence that would support the lesser included offenses: The evidence at trial "unquestionably [established] that [petitioner] was guilty of a serious, violent offense, but [left] some doubt as to an element that would justify conviction of a capital offense" --petitioner's intent to kill decedent. Vickers v. Ricketts, 798 F.2d at 371. This doubt was created by a number of factors: First, the evidence was entirely circumstantial. Second, there was evidence showing that petitioner bound and gagged the deceased but did not otherwise physically abuse her, which inherently raised a question regarding his intent to kill her. Third, there was evidence that petitioner left some slack in binding decedent's hands and feet "that would have allowed some movement of the victim's knees and shoulders." 8 ✓ Tompkins at 136. And finally, "[t]here was . . . evidence [scuff marks up and down on the tree] . . . from which . . . one might infer that the victim had attempted to escape," i. e. , was alive for some period of time, after having been tied to the tree. Id. at 136-137. This evidence "would permit a jury rationally to find [petitioner] guilty of the lesser included offense" of involuntary manslaughter, or criminal negligence, and "acquit him of [capital] murder." Beck v. Alabama, 447 U.S. at 635. Involuntary manslaughter is committed by a defendant "recklessly" causing the death of another. Tompkins at 140, citing Tex. Penal Code Ann. § 19.05(a)(1), App. D. "Recklessly" is defined as being aware of the risk and acting in conscious disregard of that risk. Tex. Penal Code Ann. § 6.03(c). The jury could reasonably have inferred from the evidence that the petitioner recklessly caused the deceased's death, i. e., that he was aware of the risk that leaving the deceased bound and gagged could lead to her death and that he consciously disregarded that risk. If so, the jury could have convicted the petitioner of involuntary manslaughter. Criminally negligent homicide is committed when one causes the death of another as a result of "criminal negligence." Tex. Penal Code Ann. § 19.07. "Criminal negligence" occurs when a person "ought to be aware of a substantial . . . risk . . . ." and negligently "fail[s] to perceive it." Tompkins at 138, citing Tex. Penal Code Ann. § 6.03(d) (emphasis added). The jury could reasonably have concluded that the petitioner "ought [to have been] aware" of the risk that leaving the deceased bound and gagged could lead to her death and that he negligently failed to perceive it. If so, the jury could have convicted the petitioner of criminally negligent homicide. 9 The court of appeals erred in concluding that there was no evidence that would have supported either of these offenses. The court examined each offense and concluded that criminally negligent homicide required that petitioner be unaware of the risk and that involuntary manslaughter required that petitioner be aware of the risk. The court then concluded that there was no evidence from which the jury could conclude that the accused was unaware of the risk created by his conduct, thereby negating criminally negligent homicide. Tompkins at 138. The court then concluded that there was no evidence that the defendant's conduct was "reckless," or that he was aware of the risk, thereby negating involuntary manslaughter. Tompkins at 139-40. The court's reasoning is internally inconsistent. As Judge Clinton noted in his dissent: First the majority says appellant's conduct precludes an inference "that he was then unaware of the risk his conduct created . . . .So much for criminally negligent homicide. Next, it says "without evidence that appellant acted recklessly in causing the death of his victim [involuntary manslaughter was not raised]” . . . .But the majority had just found appellant was aware of the risk [i.e., the definition of reckless conduct]. Tompkins at 161 n.l. Stated differently, if the logic inescapably takes the case out of negligent homicide, that same logic inescapably brings the case within involuntary manslaughter, and vice versa, i.e■, if the accused was aware of the risk then he acted "recklessly." If he "ought to have been aware" of the risk, but was not, he acted "negligently." 2. The court of appeals misread Beck: After erroneously finding that there was no evidence that would have warranted instructions on the lesser included offenses, the court of appeals sought to distinguish this case from Beck stating: "[W]e find that Beck, supra is factually 10 distinguishable from the instant case. In Beck . . . the defendant testified at trial and denied that he killed his victim or intended his victim's death, whereas here appellant did not testify or present any evidence from any source that he possessed only the intent to either rob or kidnap Berry." Tomokins at 140.4 The court seriously misread Beck. The logic of Beck has nothing to do with whether the defendant testified or presented evidence. Beck holds that, in a capital case, due process requires that the jury must be given a "third option" to convict for a noncapital offense whenever there is evidence that would support a finding of guilty on a lesser offense. The source of that evidence is irrelevant to the rationale of Beck. Even more troubling is the court's apparent reading of Beck to require that the defendant testify or present evidence in order to receive the protections of Beck. Applying Beck in this manner would create the "intolerable" result that "one constitutional right should have to be surrendered in order to assert another." Simmons v. United States, 390 U.S. 377, 394 (1968). Accord, United States v. Salvucci, 448 U.S. 83, 89-90 (1980); Lefkowitt v. Cunningham, 431 U.S. 801, 806-07 (1977); Brooks v. Tennessee, 406 U.S. 605, 612-13 (1972). Although Beck does not require that lesser included offense instructions be given in every capital case, see Hopper v. Evans, 456 U.S. at 610, it does require "that the jury be permitted to consider a verdict of guilt of a noncapital offense 'in every case' in which 'the evidence would have supported such a verdict.'" Id. As discussed above, there was evidence in this case that would have 4 4 "It appears that had appellant's written qonfession been admitted into evidence, the issue that appellant presents might call for a conclusion different from the one we reach." Tompkins at 137 n.7. 11 supported a verdict of guilt on the lesser offenses of involuntary manslaughter or criminally negligent homicide. Under Beck petitioner was, therefore, entitled to instructions on these lesser offenses as a matter of due process. In the absence of such instructions, the jury was not given the option of deciding "whether to infer reckless ness or negligence or intent to kill . . . .[T ]he jury was permitted only to convict of capital murder or to acquit." (Emphasis added.) Tompkins at 169, Clinton, J., dissenting. This is precisely the situation that Beck found constitutionally intolerable. It should be noted that the trial court did instruct the jury on the lesser offense of intentional murder, Tex. Penal Code Ann. § 19.02(a)(1), which is a noncapital offense.5 See R. App. at 187-91. Intentional murder differs from capital murder in that capital murder requires proof that the intentional murder was committed in the course of a robbery or kidnapping. See Sections 19.03(a)(2) and 19.02(a)(1), Texas Penal Code. The court's instruction on intentional murder did not, however, give the jury a viable "third option" to convicting the petitioner of capital murder or acquitting him. The jury could reasonably have convicted petitioner of intentional murder only if it found that he had intentionally killed decedent but had not robbed or kidnapped the deceased. Such a finding would have been unsupportable by the evidence; if the jury found that petitioner had intentionally killed the deceased by gagging her and tying her to a tree, they could not fail to find that he had robbed or kidnapped her. 5 The court refused petitioner's request for an instruction on felony murder which is a noncapital offense. Tex. Penal Code Ann. § 19.02(a)(3). See R. App. at 172-75. Felony murder is killing another by conduct "clearly dangerous to human life" in the commission of a felony. Tex. Penal Code Ann. § 19.02(a)(3). 12 The only real issue presented by the evidence was whether defendant intended to kill decedent; on this point, the jury was given only two options: find the petitioner guilty of having intentionally killed the deceased (a capital offense when coupled with robbery or kidnapping) or acquit the petitioner of killing the deceased (an unlikely result given the evidence linking the petitioner to the materials used to bind and gag the deceased). The jury was given no "third option . " Finally, even if the noncapital murder charge could reasonably be seen as a viable third option in this case, due process would require that a jury in a capital case be instructed as to each lesser included offense that the evidence would support. The concerns regarding the reliability of a capital verdict that underlay Beck are equally present where the jury is instructed as to some but not all of the potentially applicable lesser included offenses . Because the court of appeals erred in concluding that petitioner was not entitled to instructions on the lesser included offenses and seemingly misinterpreted this Court's holding in Beck v. Alabama, this case raises important issues that this Court should address. The writ should be granted on issue number 1. 13 II. THE APPROACH ADOPTED BY THE TEXAS COURT OF CRIMINAL APPEALS IN ACCEPTING THE DISTRICT COURT'S BATSON FINDINGS WOULD, IF ACCEPTED, VITIATE THIS COURT'S DECISION IN BATSON v. KENTUCKY This case presents an important issue relating to the proper administration of the protections sought to be achieved by this Court in Batson v. Kennedy, 106 S. Ct. 1712 (1986). The Court should review this issue here because the approach adopted by the Texas Court of Criminal Appeals to evaluate the prosecution's purportedly neutral explanations for its peremptory challenges of prospective black jurors would, if accepted, vitiate the protections of Batson. Here the court of appeals deferred to the district court's acceptance of the prosecutor's explanations as a matter involving witness credibility, even though the court of appeals found the explanations to be implausible on their face. In so doing, the court expressly refused even to consider other objective evidence in the record that "cast considerable doubt” on the prosecutor's explanations and which, if considered, could have "materially affected" the court's decision. Tompkins at 119, n.6A. Unless appellate courts are prepared to look to all the circumstances evident in the record to see if — despite the State's proffered explanations -- discrimination has taken place, the promise of Batson will be illusory. In Batson, this Court confirmed that " [p ] urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." 106 S. Ct. at 1717. Batson recognised that the defendant's right to equal protection also forbids the prosecution to exercise peremptory challenges to exclude potential jurors solely on account of their race. Id. 14 Under Batson, once a defendant has established a prima facie case of purposeful discrimination, by showing that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race, the prosecution must provide neutral non-racial explanations for its challenges. Petitioner established a prima facie case here -- he is black and the prosecution exercised its challenges for cause and its peremptory challenges to exclude all 13 prospective black jurors. (Eight of the jurors were challenged for cause and five were peremptorily challenged.) The prosecution then proffered explanations for its challenges. The district court accepted these explanations. Although the court of appeals found the prosecutor's explanations implausible on their face, it nonetheless affirmed the district court's findings. The prosecution offered the following explanations for its peremptory challenges of venirepersons Thomas, Samuel and Green, all of whom are black. The prosecutor struck prospective juror Thomas because he found that she had problems with the "law of circumstantial evidence" and "[t]hat was my whole case. We had no direct evidence." Tompkins at 122. The court of appeals found this explanation " . . . shocking and totally not understandable," since, at the time the challenge was exercised, the prosecution had petitioner’s confession which had not been suppressed, id., and conceded that "[wjithout more . . . we would have to hold that only an irrational trier of fact could have accepted this reason as a 'neutral explanation' why he used a peremptory strike on the juror." Id. Although the court found nothing that altered the fact that the prosecutor's explanation was implausible — his case was not wholly 15 circumstantial at the time he exercised the challenge, it nonetheless affirmed the district court's finding. Juror Green was struck because (1) he had worked in the U.S. Postal Service for thirteen and a half years; (2) he did not articulate answers; and (3) he responded by nodding his head (although he was never asked for a verbal response). Tompkins at 124. The court of appeals conceded that it had "some difficulty understanding the relevancy of a venireperson's employment as a postman . . . ," Tompkins at 125, and found Mr. Green's purported inarticulateness to be an insufficient reason for the challenge, noting that Mr. Green did not indicate an inability to be articulate "that was any greater or less than the unchallenged venirepersons." Id. at 124. Despite concluding that the State's explanations for challenging Mr. Green "give us great concern," id., the court of appeals affirmed the trial judge's acceptance of the State's explanations for challenging Mr. Green. Tompkins at 125. Finally, the State challenged juror Samuel because his data sheet appeared to have been filled out by someone else, suggesting that he was illiterate, although there was no proof of this, and because he nodded his head in response to questions. Supp. R., Vol. I (Batson hearing) at 134-43, 146. The court of appeals accepted this challenge on the basis of the prosecutor's assertion that he was concerned that Mr. Samuel might be illiterate and that this was a "complex case" and would involve written jury instructions. Tompkins at 124. The court of appeals also had before it, but refused to consider, a juror comparison that demonstrated that the prosecution's already suspect explanations were implausible. This comparison, presented to the court in petitioner's supplemental brief, showed that white jurors who 16 were not challenged possessed the same purportedly undesirable characteristics that formed the basis of the prosecution's purportedly neutral explanations of its challenges to prospective black jurors. Tompkins at 119, n . 6A. While conceding that this comparison "cast considerable doubt" on the prosecutor's explanations and "might have materially affected" the court's decision, the court refused to consider the comparison on the ground that petitioner had not asked the district court to make such a comparison at the Batson hearing. Id. The court's refusal to accept the comparison was incorrect and inconsistent with other parts of its opinion. Petitioner's comparison was not new evidence; it was simply an argument based on evidence in the record. Moreover, the court of appeals relied on precisely such a comparison itself to reject one of the prosecution's explanations for its challenge of Mr. Green.6 In affirming the district court's Batson findings, the court of appeals approached the issue as essentially one of witness credibility and deferred to the district court's findings. Observing that "the trial judge believed the race-neutral explanations given by [the prosecutors]," Tompkins at 126, and that such determinations are entitled to 9reat deference, Tompkins at 117, the court affirmed the trial court without consideration of petitioner's arguments based on juror comparisons. Tompkins at 126. In so doing, the court of appeals relied heavily on this Court's observation in Batson that, since Batson findings typically turn on the credibility of the witness testimony, "a As noted above, one of the prosecutor's explanations for its challenge of Mr. Green was that he was inarticulate. The court found this explanation implausible on the basis of its own juror comparison, noting that Mr. Green did not indicate an inability to be articulate "that was any greater or less than the unchallenged venirepersons.” Tompkins at 124. 17 reviewing court ordinarily should give [the trial court's Batson ] findings great deference." Batson at 1724 , n.21. The problem with the court of appeals' approach was that this case did not involve just witness credibility. There was also objective evidence, which the court did not consider in its review, that "cast considerable doubt" on the prosecution’s explanations. Tompkins at 119 n.6A. This Court's observations on the deference to be accorded findings on witness credibility certainly were not intended to be a signal to appellate courts that they were free to ignore circumstances evident in the record that cast doubt on the prosecutor's explanations. Unless appellate courts are willing to examine the plausibility of the State's Batson explanations in light of the entire record, the promise of Batson — to serve as a check on the discriminatory use of peremptory challenges by prosecutors -- will be illusory. Clearly, the Court anticipated the need for appellate courts to weigh the plausibility of the prosecutor's explanation in light of all the circumstances in the record. As Justice Marshall observed in Batson, "[a]ny prosecutor can easily assert facially neutral reasons for striking a juror." Batson at 1728. It is particularly important, therefore, that the plausibility of such explanations be examined on the basis of all of the circumstances in the record. This is particularly necessary in the Batson context, where the review of the prosecutor's explanations is intended to act as the safeguard of defendant's fundamental right to equal protection. It becomes even more essential where, as here, the Batson hearing took place almost 6 years after the petitioner's conviction, and several of the prosecutor's explanations are facially suspect. In such circumstances, the prosecutor's explanation of his reasons for a challenge should be accepted 18 less readily, particularly where it is internally inconsistent and is contradicted by objective evidence in the record. This Court has already sown the seeds for requiring meaningful review in Batson cases. In Batson, the Court stated that, while the prosecution's explanations need not rise to the level of a challenge for cause, "the prosecutor may not rebut the defendant's prima facie case . . . merely by denying that he had a discriminatory motive." Batson at 1723. As the Court in Batson noted, "If these general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause 'would be but a vain and illusory requirement.'" Id. quoting Norris v. Alabama, 294 U.S. 587, 598 (1935). Therefore, "the prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Batson, 106 S. Ct. at 1724 n.20, quoting Texas Dept, of Community Affairs v. Burdino, 450 U.S. 248, 258 (1981). The court of appeals here did not subject the district court's Batson findings to the level of review that is required by Batson. On their face, the prosecution's explanations were not "'clear and reasonably specific' explanations of . . . 'legitimate reasons' for exercising the challenges." Id. At the time Ms. Thomas was challenged for having problems with circumstantial evidence, circumstantial evidence was not crucial to the State's case, and the explanation for challenging Mr. Green, i.e., because he was a postal worker, is no explanation at all. It is comparable to an explanation rejected by another court where the prosecutor explained the exclusion of a nurse on the ground that nurses are compassionate for defendants. State v. Butler, 731 S.W.2d 265 (Mo. App. 1987). See also People v. Turner, 19 42 Cal. 3d 711, 726 P.2d 102, 230 Cal. Rptr. 656 (1986) (lack of intelligence ascribed to truck drivers not shown to apply to black truck driver who was removed). If a person may be struck because of his occupation without any explanation why the occupation is significant, a prosecutor can justify any exclusion merely by giving the person's occupation as the reason. At a minimum, Batson findings, like any other findings of fact, are subject to a "clearly erroneous" review. The credibility of witnesses is only one factor to be considered in such a review. Under a "clearly erroneous" standard, the reviewing court should hold the finding erroneous "when, although there is evidence to support it, the reviewing court on the entire evidence is left with the firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564 (1985). The court of appeals here did not conduct its review based on the entire record and, as a consequence, failed properly to administer the protections that Batson sought to guarantee. 20 III. AS APPLIED, THE FIRST AND SECOND CAPITAL SENTENCING QUESTIONS IN TEXAS DO NOT SATISFY THE CONSTITUTIONAL REQUIREMENTS FOR CAPITAL SENTENCING PROCEDURES ARTICULATED BY THIS COURT IN CASES DECIDED SINCE JUREK This case also presents an issue identical to the issue currently before this Court in Franklin v. Lynaugh, petition for cert, granted, No. 87-5546 (certiorari granted October 9, 1987) -- whether the first and second Texas sentencing questions provide constitutionally adequate sentencing guidance in light of the requirements for capital sentencing procedures articulated by this Court in cases decided after Jurek v. Texas, 428 U.S. 262 (1976). After the jury found petitioner guilty of capital murder, it heard evidence in mitigation and aggravation prior to sentencing. At the conclusion of the sentencing evidence, the jury received no sentencing instructions other than receiving, in written form, the first and second Texas sentencing questions: Issue No. 1 Do you find from the evidence beyond a reasonable doubt whether the conduct of the defendant, Phillip Daniel Tompkins, that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result? Answer: Issue No. 2 Do you find from the evidence beyond a reasonable doubt whether there is a probability that the defendant, Phillip Daniel Tompkins, would commit criminal acts of violence that would constitute a continuing threat to society? Answer: R. App. at 202. As in Franklin, these instructions did not permit the jury to consider relevant mitigating evidence presented 21 by petitioner that could have justified a sentence less than death. Petitioner presented evidence that he came from a broken home, that his mother was not supportive, that he had raised his eight brothers and sisters without a father in his house, and that he had helped to support and protect his family at a young age. R. Vol. XXV at 1203-1211. There was also evidence that Petitioner is of low intelligence (I.Q. of 80) and has emotional problems stemming from his mother's lack, of support. R. Vol. XXVI at 1243-1248. Such mitigating evidence is highly relevant in capital sentencing. Califor- nia v. Brown, 107 S. Ct. 837, 841 (1987) (O'Connor, J. concurring). This Court has held "that a sentencing body must be able to consider any relevant mitigating evidence regarding the defendant's character or background." Id., citing Eddings v. Oklahoma, 455 U.S. 104 (1982) and Lockett v. Ohio, 438 U.S. 586 (1978). Nothing in the first two Texas questions informed the jury that it could consider such evidence or the effect, if any, that such evidence could be given. A juror could reasonably have concluded that the fact that petitioner helped raise his eight siblings in a broken home was not relevant to either of the two narrow questions asked. If so, the juror would be permitted to ignore this evidence altogether. Indeed, since the inquiry was focused solely on the two specific questions asked, a juror could reasonably have concluded that he or she was precluded from considering evidence not directly relevant to either question. Finally, even if the juror wanted to consider such evidence and felt on balance that it justified a sentence less than death, the two questions do not permit the juror to give the evidence any effect. Under the Texas 22 scheme, a juror has no means of expressing the view based on mitigating evidence, not directly relevant to either question, that a sentence of less than death is appropriate. Thus, this case presents precisely the same issue that is before the court in Franklin v, Lynaugh. The petitioner in Franklin frames this issue in its brief as follows: "Did jury instructions given pursuant to article 37.071(b) of the Texas Code of Criminal Procedure deprive the jury of any procedure for considering and expressing the conclusion that the mitigating evidence called for a sentence less than death?" In the district court, petitioner moved to quash the indictment on the ground that Article 37.071 of the Texas Code of Criminal Procedure — the Texas capital sentencing procedure -- is unconstitutional because, as applied, it fails to meet the constitutional requirements for capital sentencing procedures articulated by this Court in cases decided since Jurek v. Texas, 428 U.S. 262 (1976). See R. Vol. IV at 9-31. The trial court denied petitioner's motion without opinion. Id. at 31. Petitioner's court appointed counsel did not, however, renew this constitutional challenge on appeal. This Court has recognized that it has the power, in appropriate cases, to decide important questions not raised by the parties below once its jurisdiction is otherwise established, Illinois v. Gates, 462 U.S. 213, 219-20 (1983); see also Carlson v. Green, 446 U.S. 14, 17 n.2 (1980), particularly where, as here, material errors were not raised below in a capital case, Fisher v. United States, 328 U.S. 463 (1946), and the issue is presented in a case that is 23 already pending. Carlson v. Green, 446 U.S. 14, 17 n.2 ( 1980 ) . ' Because the same issue is already before the Court in Franklin, however, the Court may prefer to defer consideration of the petition with respect to this issue pending its decision in Franklin. Should this Court reverse Franklin, the Texas Court of Criminal Appeals will apply the benefits of Franklin to this case, even though this issue was not raised in the court of appeals by petitioner here. See Texas v. Chambers, 688 S.W.2d 483 (Tex. Crim. App. 1984), cert, denied, 474 U.S. 864 (1985). As a consequence, it may be appropriate for this Court to hold the petition on this third issue until Franklin is decided and to return this case to the Texas courts for further consideration in light of its decision in Franklin. Such a disposition of this case would be in the interests of justice and of efficient judicial administration and would obviate the need for petitioner to pursue further post conviction proceedings in the Texas state courts, pending the disposition by this Court of Franklin. This Court has the authority to hold this case pending the disposition of Franklin under its general grant of authority to dispose of cases as the interests of justice require and in the manner most consistent with efficient judicial administration. See 28 U.S.C. § 2106 (1982); see also R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice at 366 (6th ed. 1986). The Court plainly has jurisdiction over the first two issues presented in this petition. Both raise important constitutional issues and were properly raised below. 24 CONCLUSION The Petition for Writ of Certiorari should be granted. In the alternative, the Court may wish to defer the disposition of the petition pending its decision in Franklin v, Lynaugh, No. 87-5546 (certiorari granted, October 9, 1987). Respectfully submitted, tmmett B. Lewis Robert K. Huffman Kendall W. Daines MILLER & CHEVALIER, CHARTERED 655 Fifteenth Street, N.W.Suite 900 Washington, D.C. 20005-5701 (202) 626-5800 Dated: 25