Spinkellink v Wainwright Petition for Writ of Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1978 

No. 73 -

JOHN A. SPINKELLINK,

P e t it io n e r ,

v .

LOUIE L . WAINWRIGHT, S ec re ta ry ,  
F lo r id a  Department o f  O ffender  
R e h a b ilita t io n ,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT

JACK GREENBERG 
JAMES M. NABRIT, I I I  
JOEL BERGER 
JOHN CHARLES BOGER 
DEBORAH FINS 

S u ite  2030 
10 Columous C ir c le  
New York, New York 10019

ANDREW A . GRAHAM 
S u ite  S
1970 M ichigan Avenue 
Cocoa, F lo r id a  32922

DAVID E . KENDALL
1000 H i l l  B u ild in g  
W ashington, D .C . 20006

ANTHONY G. AMSTERDAM
S tan fo rd  U n iv e rs ity  Law 
S tan fo rd , C a l i fo r n ia  94

ATTORNEYS FOR PETITIONER

V o
 

r.n ro



*

INDEX

PAGE

CITATIONS. TO OPINIONS' BELOW..........................................................  I

JURISDICTION ..........................................................................................  I

QUESTIONS PRESENTED ........................................................................  2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 4

STATEMENT OF THE CASE ....................................................................  4

REASONS FOR GRANTING THE WRIT ................    23

I .  THE COURT SHOULD GRANT CERTIORARI 
TO CONSIDER WHETHER FLORIDA'S DEATH 
PENALTY STATUTE, AS INTERPRETED BY 
THE SUPREME COURT OF FLORIDA AND 
APPLIED BY THE TRIAL COURT IN THIS 
CASE, UNCONSTITUTIONALLY RESTRICTS 
CONSIDERATION OF MITIGATING
CIRCUMSTANCES ................................................................  26

I I .  THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER PETITIONER WAS DE­
PRIVED OF AN ADEQUATE HEARING ON HIS 
CLAIMS THAT FLORIDA'S CAPITAL PUNISH­
MENT STATUTE WAS BEING APPLIED IN AN 
ARBITRARY AND DISCRIMINATORY PATTERN 
IN VIOLATION OF THE EIGHTH AND FOUR­
TEENTH AMENDMENTS ...................................................... 34

I I I .  THE COURT SHOULD GRANT CERTIORARI 
TO DETERMINE WHETHER THE COURTS 
BELOW ERRED IN REJECTING WITHOUT 
A HEARING THE SELFSAME CLAIM ON 
WHICH WITHERSPOON V. ILLINOIS 
SAID THAT A CAPITALLY CONVICTED
DEFENDANT IS ENTITLED TO A HEARING ................... 45

IV . THE COURT SHOULD GRANT CERTIORARI 
TO DETERMINE WHETHER THE EXECUTIVE 
CLEMENCY PROCEDURES EMPLOYED IN 
PETITIONER'S CASE DEPRIVED HIM OF
DUE PROCESS OF LAW .................................................... 52

V. THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER PETITIONER WAS DE­
PRIVED OF AN ADEQUATE HEARING ON HIS 
CLAIM THAT ELECTROCUTION IS AN UN­
NECESSARILY TORTUROUS AND WANTONLY 
CRUEL MEANS OF EXECUTION, AND THEREFORE 
VIOLATES THE EIGHTH AND FOURTEENTH
AMENDMENTS .................................................................... ’ 53

CONCLUSION 57



TABLE OF AUTHORITIES

CASES PAGE

Aikens v . C a l i fo rn ia ,  406 U .S . 813 (1972) ............................  54

A lexander v .  L ou is ian a , 405 U .S . 625 (1972) ........................ 41

A l le e  v . Medrano, 416 U .S . 802 (1974) ....................................  36

Andres v . United S ta te s , 333 U .S . 740 (1948) ...................... 32

Avery v . G eorg ia , 345 U .S . 559 (1953) ....................................  40

B allew  v . G eorg ia , 435 U .S . 223 (1978) .............................. •. . 47

B e l l  v . Ohio, ____  U .S . ____ , 47 L .E d .2d  1010 (1978) ......... 23

Boykin v . Alabama, 395 U .S . 238 (1969) ..................................  55

Brown v . A l le n , 344 U .S . 443 (1953) ......................................... 25

Buckrem v . S ta te , 355 S o .2d 111 (F la .  1978) ........................ 31

Burch v . S ta te , 343 S o .2d 831 (F la .  1977) ...........................  31

Coleman v . Alabama, 389 U .S . 22 (1967) ..................................  40

Cooper v . S ta te , 336 S o .2d 1133 (F la .  1976) ........................ 22,27,28
29,30,31

Furman v . G eorg ia , 408 U .S . 238 (1972) ..................................  24,30,35
37,33,39
42,57

Gardner v . F lo r id a , 430 U .S . 349 (1977) ................................  37,42,43

Gregg v .  G eorg ia , 428 U .S . 153 (1976) ....................................  25,37,33
39,54,56

Grisham v . Hagan, 361 U .S . 278 (1960) ....................................  25

Guinn v .  United S ta te s , 233 U .S . 347 (1915) ........................ 36

In  re  Kemmler, 136 U .S . 436 (1890) ...........................................  22,53,55
56

Lane v . W ilson , 307 U .S . 263 (1939) ......................................... 36

Lockett v . Ohio, ____ U .S . _____ , 57 L .E d .2d  973 (1978) . . .  ' 21,22,23
26,29,30  
31,32,33  
42

-  i i  -

I



PAGE

Lou isiana ex r e l .  Francis v. Resweber, 329 U .S .
459 (1947) ..................................................................

Meachum v. Fano, 427 U .S . 215 (1976) .......................

Ex parte M illig a n , 4 W a ll. 2 (1866) .........................

Moore v. Dempsey, 261 U .S . 861 (1923) .....................

N .A .A .C .P . v . Alabama ex r e l .  Patterson , 357 U .S . 
449 (1958) ..................................................................

N o rris  v . Alabama, 294 U .S . 587 (1935) ...................

Peyton v . Rowe, 391 U .S . 54 (1968) ........ -.................

P re sn e ll v . Georgia, ____U .S . _____ , 58 L.Ed.2d
207 (1978) ..................................................................

P r o f f i t t  v . F lo r id a , 423 U .S . 242 (1976) ...............

Radio S tation  WOW, In c ., v . Johnson, 326 U .S . 120 
(1945) ..........................................................................

Harry Roberts v . Lou isiana, 431 U .S . 633 (1977) .

Robinson v . C a li fo rn ia , 370 U .S . 660 (1962) .........

Rogers v . Richmond, 365 U .S . 534 (1961) .................

Schick v . Reed, 419 U .S. 256 (1974) . . . . . . . . . . . . .

Secretary  For Home A f fa i r s  v . O 'B rien , [1923]
A .C . 603, (H .L . 1923) ...........................................

Shuttlesworth v. Birmingham, 332 U .S . 87 (1965) .

Shuttlesworth v . Birmingham, 394 U .S . 147 (1969)

Smith v . Bennett, 365 U .S . 703 (1965) .....................

Songer v . S tate , F la . S .C . No. 52,642 (1978) . . . .

Spenkelink v . F lo r id a , 428 U .S . 911 (1976)' ..........

Spenkel'ink ,v . . F lo rid a , 434 U.’S . 960 (1977) ..........

Spenkelink v . S tate , 350 S o .2d 85 (F la . 1977) . . .

Spinks11ink v . S tate , 313 S o .2d 666 (F la . 1975)

Stromberg v. C a li fo rn ia , 283 U .S . 359 (1931) . . . .

S u lliv an  v . Askew, 348 S c .2d 312 (F la . 1977) . . . .

55,57

22,52

25

25

29

36

24

31

7,19,20, 
23,24,25, 
25,27, 
31,34, 
36,37,39

29

33

56

32

22,52

24

32

29,36

24

29

4

4

13

5,9

31

52

ro m



PAGE

S u lliv a n  v . Askew, 434 U .S . 878 (1977) ..................................

T e rm in ie llo  v . Chicago, 337 U .S . 1 (1969) ............................

Trop v . D u lle s , 356 U .S . 36 (1958) ...........................................

Turner v . Fouche, 396 U .S . 346 (1970) ....................................

V i l la g e  o f A r lin g to n  H eights v . M etropo litan  Housing
Development C o rp ., 429 U .S . 252 (1977) ........................

Ward v . Love County, 253 U .S . 17 (1920) ................................

Washington v . D av is , 426 U .S . 229 (1976) ..............................

W itherspoon v . I l l i n o i s ,  3’91 U .S . 510 (1963) ......................

Woodson v . North  C a ro lin a , 428 U .S . 280 (1972) ...................

W right v . G eorg ia , 373 U .S . 284 (1 9 6 3 ).......................................

Y ick  Wo v . Hopkins, 113 U .S . 356 (1886) ..................................

STATUTES

American Law In s t i t u t e ,  Model Penal Code § 2 1 0 .6 (4 ) (d )
(P .O .D . 1962) ......... ............... ................... . . . ..............................

C a l. Penal Code Ann. § 19 0 .3 (a ) (Supp. 1978) ..........................

F la .  S t a t .  Ann. § 921.141 ................. '. ...........................................

Idaho Code § 19-2716 (Supp. 1978) ...............................................

Xy. Rev. S t a t .  § 532.025 (2 ) (b ) (4 ) (Supp. 1978) ...................

C k la . S t a t .  Ann. t i t .  22 §1014 (Supp. 1978-1979) ...............

S .C . Code § 16 -3 -20 (C ) (b ) (8 ) (Supp. 1977) ................................

Tenn. Code Ann. § 39-2404 ( j ) ( 4 ) (Supp. 1973) ........................

V ernon 's  Tex . Code Crim . P ro . Ann. A r t .  43.14 (Cum. Su d o . 
1966-1977) ...............................................................................

Vernon 's Tex. Code Crim . P ro . Ann. A r t .  37.071 ( b ) (3)
(Supp. 1973) ........................ .. .....................................................

53 

31

54

3 6 , 4 1

4 0 . 4 1 ,  ;42 

29

4 0 . 4 1 ,  (42 

1 8 , 2 4 , , 4 5 ,
4 7 , 4 8 ,
5 0 , 5 1

3 7 , 3 9 ,

36

3 6 , 3 7

4 9 ,

42

33

33

pas s im 

56 

33 

56

32

33

56

32

-  iv  -



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1978 

No. 78-

JOHN A. SPINKELLINK,

P e t it io n e r ,

v.

LOUIE L. WAINWRIGHT, Secretary , 
F lo rid a  Department o f O ffender 
R e h a b ilita t io n ,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

FIFTH CIRCUIT

P e t it io n e r  prays that a w r it  o f c e r t io r a r i  issue  

to review  the judgment o f the United States Court o f Appeals 

fo r  the F ifth  C irc u it , rendered August 21, 1973.

CITATIONS TO OPINIONS BELOW 

The opinion o f the court o f appeals is  reported  

at 578 F.2d 582 and is  attached as Appendix A. The opinion  

of the d is t r ic t  court is  unreported and is  attached as 

Appendix 3.

JURISDICTION

J u risd ic t io n  of th is Court is  invoked under 23 U .S.C . 

Section 1254( I ) . Mr. Justice  Powell granted an extension o f 

time u n til January 13, 1979, fo r  the f i l i n g  o f the p e t it io n .



QUESTIONS PRESENTED

Whether F lo r id a 's  death penalty s ta tu te , as in te r ­

preted  by the Supreme Court o f F lo r id a  and app lied  

by the t r i a l  court in th is  case, un con stitu tion a lly  

r e s t r ic t s  consideration  o f m itigatin g  circumstances 

in  a manner forbidden by Lockett v. Ohio?

Whether p e t it io n e r  was deprived o f an adequate 

hearing on h is claims that F lo r id a 's  c a p ita l  

punishment statu te  is  being app lied  in an a rb it ra ry  

and d iscrim inatory  pattern  in v io la t io n  o f the 

Eighth and Fourteenth Amendments?

Whether the court below in co rre c t ly  decided as a 

matter o f law an issue exp ressly  reserved by th is  

Court in Witherspoon v. I l l i n o i s , and whether i t  

wrongly held  that a v io la t io n  o f the Sixth and 

Fourteenth Amendments could not be e stab lish ed  by 

fa c tu a l proof that the d e a th -q u a lif ic a t io n  o f 

p e t it io n e r 's  t r i a l  ju ry  rendered i t  p rosecution - 

prone and not im partia l on the issue o f g u i l t ,  as 

w e ll as unrepresentative o f a c ro ss -sec tion  o f the 

community?

Whether the executive clemency procedures employed 

in p e t it io n e r 's  case deprived him o f due process 

of law guaranteed by the Fourteenth Amendment?

Whether p e t it io n e r  was deprived o f an adequate hearing  

on h is claim  that e lectrocu tion  is  an unnecessarily



torturous and wantonly c ru e l means o f execution, 

and th ere fo re  v io la te s  the Eighth and Fourteenth  

Amendments?

-3 -



II

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED_______

1. This case involves the S ixth , Eighth, and

It Fourteenth Amendments to the Constitu tion  o f the United
i

i j
i S ta tes .

2. This case a lso  involves the p rov is ion s o f 

F lo r id a  law set fo rth  in  Appendix E.

STATEMENT OF THE CASE

P e tit io n e r  John A . Spenkelink—̂  has been sentenced
I
i to  d ie  fo r  f i r s t  degree murder. Follow ing a d ire c t  appeal,
j

d en ia l o f  executive clemency, a s ta te  post-con v ic tion  

| proceeding, and a fe d e ra l habeas corpus ap p lica t ion , th is
I

p e t it io n  fo r  c e r t io r a r i  presents h is la s t  opportunity to
I
|j be heard on severa l su b stan tia l c o n stitu tio n a l contentions 

j before he is e le c tro cu ted .— His e lec trocu tion  would mark
i
j j  the f i r s t  resumption o f involuntary executions in the United  

! States since A o r i l  o f 1967.

— The correct sp e llin g  o f  p e t it io n e r 's  surname is
"Spenkelink'' but from the inception  o f  the sta te  court 
proceedings in 1973 i t  has been sp e lle d  "S p in k e llin k ."

L
i| “ P e t it io n e r  has been be fo re  th is  Court tw ice be fo re , but 

c e r t io r a r i  was denied both tim es. Soenkalink v. F lo r id a , 
423 U .S . 911 (1976) (d ire c t  a p p e a l); Spenkelink v . F lo r id a , 
434 U .S . 960 (1977) (s ta te  post-con v ic tion  p roceed ing ).

-4 -



A. Proceedings in the State Courts

1. The T r ia l

The evidence introduced by the State and 

by p e t it io n e r  a t  h is 1973 murder t r i a l —̂  in the C irc u it  

Court o f the Second J u d ic ia l C irc u it  in  and fo r  Leon 

County, F lo r id a , was, fo r  the most p a rt , not in c o n f l ic t .  

The s in g le  sharply d isputed issue  was whether p e t it io n e r  

acted in  se lf -d e fe n se  o r with a prem editated design when 

he shot and k i l le d  Joseph J. Szymankiewicz.

The two men, both Caucasian, had been tra v e lin g

companions at the time o f the k i l l in g  and were unemployed

4/d r i f t e r s  with crim inal re co rd s .— The F lo r id a  Supreme

Court described th e ir  re la t io n sh ip  as fo llo w s :

"During th e ir  trav e ls  A ppe llan t learned  
f i r s t  hand o f Szymankiewicz’ s v ic ious  
propen sities  when the la t t e r  forced him 
to have homosexual re la t io n s  with him, 
when the la t t e r  played "Russian Roulette" 
with him and boasted o f k i l l in g  a fe llo w  
inmate while in  p rison . A fte r  checking 
into a motel in T a llah assee , Appellant  
discovered that h is t ra v e lin g  companion 
had re lie v e d  him o f h is cash re se rv e s ."

— The state  t r i a l  t ra n sc r ip t , which was made pa rt  o f  the 
record o f the fe d e ra l habeas corpus proceeding below, is  
divided  into three separate ly  paginated section s. Here­
a ft e r ,  re ferences to the one-volume v o ir  d ire  tran sc r ip t  
w i l l  be p refaced  by "V .D .T ." ; re ferences to the two- 
volume t r i a l  t ra n sc r ip t  w i l l  be prefaced*by  "T .T ." ;  and 
references to the one-volume m itigation -h earin g  tran s­
c r ip t  w i l l  be p refaced  by "M it. T ." .  References to the 
tran sc rip t  o f the September 21, 1977 hearing in  the 
United States D is t r ic t  Court w i l l  be prefaced by "T .", 
and references to the record on appeal to the Court 
o f Appeals w i l l  be prefaced by "R ."

—' P e tit io n e r  had walked away from a C a li fo rn ia  minimum 
security  prison camp, M it.T . 20, 43, and Szymankiewicz 
had spent most o f the past twenty years in p rison ,
T.T. 206.

—a -



P e tit io n e r  then reso lved  to part company with Szymankiewicz.

Sp inkellink  v. S ta te , 313 So .2d 666, 668 (F la . 1975);

Appendix C, p. 3c i n f r a . " A d m i t t e d l y ,  the evidence 

c le a r ly  shows that . . . [Szymankiewicz] was an in d iv id u a l 

o f v ic ious temperament, and that A ppe llan t was ju s t i f ie d  

in concluding that he would do w e ll to sever th e ir  

re la t io n sh ip ."  Id . at 670; p. 5c in f r a .

On February 4, 1973, p e t it io n e r  sought to remove 

his personal belongings from the motel room and to recover 

the money taken from him. i d . a t  668; p. 3c in f r a .

During the episode that fo llow ed , Szymankiewicz was k i l le d  

by a gunshot wound "fragm enting the spine and rupturing  

the a o r ta ."  313 S o .2d a t  66 8; p - 3C in f r a . In add ition , 

there was another shot which resu lted  in  a grazing scalp  

wound, T.T. 83-84, and two laceration s on the head apparently  

caused by blows. There was inconclusive t r i a l  testimony 

| as to whether powder bum s on the p illo w  were the re su lt  

o f a shot f i r e d  during a s tru gg le . T.T. 35, 108-117,

142-147. P e tit io n e r  t e s t i f ie d  that he was attacked by 

Szymankiewicz and forced to k i l l  in s e l f  defense, T.T.

215-17, 226-27, M it.T . 41-42, 44-46, but the ju ry  convicted  

him o f f i r s t  degree murder.—̂  The t r i a l  court th e rea fte r

—̂ The opinion o f the F lo r id a  Supreme Court a ffirm in g
p e t it io n e r 's  conviction and death sentence is  attached  
as Appendix C, pp. lc - lO c  in f r a .

i  , ,
| — Shortly  before  the k i l l in g ,  p e t it io n e r  had picked up a 

hitchh iker named Frank Bruum. Bruum was t r ie d  fo r  
f i r s t  degree murder jo in t ly  with p e t it io n e r . He was 

| acquitted .

-6 -



concluded that "the victim  was e ith e r  ly in g  on [the ]

p i l lo w  at the time o f [the ] shots o r the p i llo w  was
2/

used to  m uffle  sa id  sh o ts ." R. 39.

During the se le c t io n  o f p e t i t io n e r 's  t r i a l  ju ry , two
I

veniremen were excluded fo r  cause over contemooraneous
I

ob jec tion  by defense counsel, V .D .T . 56-58, 73-75, on 

account o f  th e ir  conscientious scrup les aga in st the death 

pen a lty . Both veniremen had stated  that the death penalty  

would not a f fe c t  th e ir  a b i l i t y  to fin d  p e t it io n e r  g u i lt y  

at the f i r s t  stage o f  the b ifu rc a ted  t r i a l  i f  the evidence 

warranted conviction . Ib id .

At p e t it io n e r 's  sentencing hearing, the State in t ro ­

duced two p r io r  f i r s t -d e g r e e  robbery convictions, a C a li fo rn ia
i

p a ro le  ru les  v io la t io n  (escape from .a co rre c t io n a l camp on 

October 18, 1972), and three photograohs o f Szymankiewicz1s
i
i body. P e t it io n e r  introduced the "FBI record sheet o f  the
I
j  deceased," M it. T. 24, which showed numerous a rre s ts  and

7/The court: d id  not fin d  that Szymankiewicz had been 
s leep in g  when he was k i l l e d .  We mention th is  because 
the Court o f  Appeals below  tw ice quoted and once paraphrased  
the p a ren th etica l ch arac te riza tion  o f p e t i t io n e r 's  case that 
appears in  footnote 12 o f th is  C ou rt 's  opinion in  P r o f f i t t  
v . F lo r id a , 428 U .S . 242, 255 n . 12 (1976) (opin ion o f Mr. 
Justice  Stewart, Mr_ Justice  P’o w e ll and Mr. Justice  Stevens) : 
" ( 'c a r e e r  c rim in a l' shot s leep ing  t ra v e lin g  companion)." 

j  See 578 F.2d at 586 & n. 3, 602; pp. 5 a & n. 3, 21a. 
j However, that ch arac te riza tion , w ith a l l  respect, has no ba s is  

in  the record . Although p e t it io n e r 's  f i r s t  c e r t io r a r i  
p e t it io n  was pending at the time P r o f f i t t  was decided, 

j  the record in the case was ne ither transm itted to th is  Court 
nor requested by i t .



convictions o f Szymankiewicz in f i f t e e n  States over a 

twenty-year p e riod . M it. T .26. P e t it io n e r  again took 

the stand and t e s t i f i e d  that the only reason he returned  

to the motel room on February 4 was " [ t ] o  get my money, 

get my luggage and leave without him [Szymankiewicz] going  

with me.'' M it . T .40. P e t it io n e r  continued to maintain  

that he had shot Szymankiewicz in  s e l f  defense. M it.

T . 41-42, 44-46.

The court in structed  the ju ry  that the m itigatin g

circumstances i t  could consider were the seven fa c to rs  set
8/

fo rth  in  the F lo r id a  death penalty  s ta tu te . M it. T. 79.

The ju ry , by m ajority  vote , recommended a death sentence. M it. 

T. 84. The t r i a l  judge subsequently entered a w ritten  order  

fin d in g  four statu to ry  aggravating circum stances: (1) that

the murder was committed fo r  pecuniary ga in  ("e ith e r  fo r  

another person 's  money or to re-coup h is  own"); (2) that i t  

was e sp e c ia lly  heinous, atrocious and c ru e l; (3) that i t  was 

committed by someone p rev iou s ly  convicted o f a fe lony  invo lv ing  

the use or th reat o f  v io lence  (armed ro b b e ry ); and (4) that i t  

was committed by a person under sentence o f imprisonment.

The judge could fin d  on ly one m itigatin g  circumstance on 

the sta tu to ry  ro s te r : "The on ly m itigatin g  circumstance

3/The court stated : "the m itigatin g  circumstances which you 
may consider, i f  e stab lish ed  by the evidence, are th e s e :" ,  
and then read to the ju ry  the seven fac to rs  l is t e d  in  the 
sta tu te . M it. T. 79.

-8 -



jl

would be that p o ss ib ly  the defendat [s ic ] was under the 

in fluence o f extreme mental o r emotional d isturbance.

However, based on the record, as a whole th is  Court d is ­

counts th is as a su b stan tia l f a c t o r . " R. 4IT Concluding
I
■ that "there are in s u f f ic ie n t  m itigatin g  circumstances to 

‘outweigh the aggravating circum stances," i b id . , the 

judge imposed the death sentence.

2. The Appeal

The F lo r id a  Supreme Court a ffirm ed  p e t it io n e r 's .

conviction and death sentence on February 19, 1975.

9 /Sp inkellink  v. S ta te , supra.— On July 6, 1976, th is

— in  a d issen ting  op in ion , Mr. Justice  Ervin maintained 
that the record presented in s u f f ic ie n t  ce rta in ty  o f  
prem editation and heinousness to ju s t i fy  im position  
o f the death penalty :

"In  th is case i t  appears that Appellant  
at the time o f the homicide was a 24-y e a r -o ld  
d r i f t e r  who picked up Szymankiewicz, a h itch ­
h iker. Both had crim inal records and both 
were heavy drinkers . Szymankiewicz, the 
victim  in th is  c a se , was a man o f v ic ious  
propensities  who boasted o f k i l l in g s  and 
forced Appellant to have homosexual r e la ­
tions with him. Appellant d iscovered that 
Szymankiewicz had 'r e l ie v e d  him o f his cash 
re se rv e s . '

I t  was under these conditions that 
Appellant returned to the motel room 
where the homicide occurred. . . .

The S ta te 's  claim  o f prem editation is  
tenuous and based upon dubiously drawn 
s im p lis t ic  reasoning which to be ap p licab le  
in th is  case requ ires  the s tra in in g  o f c i r ­
cum stantial in ferences.

[Footnote 9/ continues on next page.

-9 -



»

Court denied c e r t io r a r i .  428 U.S. 911.—

3. Executive Clemency Proceedings

P e t it io n e r  was then considered fo r  

commutation under procedures e s tab lish ed  by the Rules o f 

Executive Clemency adopted by the F lo r id a  Governor and • 

Cabinet on December 8, 1976. The F lo r id a  Paro le  and 

Probation Commission made an advisory recommendation to 

the_Govem or and Cabinet that p e t it io n e r 's  death sentence 

not be commuted, and the Commission's Chairman forwarded  

the Commission's hearing tran sc r ip t  and e x h ib its . His 

le t t e r  stated  that " [t ]h e  Commission is  a lso  includ ing

Footnote 9/ continued

From the standpoint o f ce rta in ty  and 
innate heinousness, th is case hard ly  appears 
to ju s t i fy  the death penalty. . . .

Truly characterized , the sentencing to 
death here is  an example o f the exerc ise  o f 
lo c a l a rb it ra ry  d isc re t io n . The two actors  
in  the homicide were underp riv ileged  d r i f t e r s .
Their surnames, Sp inkelln ik  [s ic ]  and 
Szymankiewicz, were fo re ign  and strange to 
the Tallahassee area . They had no fam ily  
roots or business connections here. A l l  o f 
the ingred ien ts were present fo r  the exerc ise  
o f inv id ious paroch ia l d iscrim ination  in the 
sentencing process which the p lu ra l  opinions 
o f the m ajority  in  Furman [v . G eorg ia , 408 U.S.
238 (1972 ),] condemned. The re su lt  hers is  an 
o ld  sto ry , o ften  repeated in th is ju r is d ic t io n  
where the subconscious p re jud ices and lo c a l  
mores outweigh humane, c iv i l iz e d  understanding  
when certa in  segments o f the population  are 
up fo r  sentencing fo r  murder."

313 S o .2d at 673-674; Appendix C, .d p . 8 c - 9c in fra  (d issen tin g  
opinion o f Mr. Justice E r v in ) .

10A  subsequent motion by p e t it io n e r  fo r  reduction o f sentence 
was denied by the state  t r i a l  court on December 8, 1976.

-1 0 -



the major contents o f i t s  case f i l e ,  however, the Commission 

fe e ls  that th is  m ateria l should be deemed c o n f id e n t ia l."  

Counsel fo r  p e t it io n e r  inqu ired  unsuccessfu lly  o f the

1 Governor and Cabinet by what standards, i f  any, th e ir

I f in a l  decision  to commute or re fu se  commutation would be
1

made. Counsel appeared before  the Governor and Cabinet —

I

i
I

which included the Attorney General, who is  charged with  

prosecuting crim ina l cases on appeal— 1̂—  to present o ra l  

argument in favo r o f  commutation. Opposing argument was

— • The Attorney General, in  h is capacity  as a member o f
the Cabinet, a c t iv e ly  argued the case aga in st p e t it io n e r 's  
counsel a t  the hearing.

"You would c le a r ly  acknowledge that he would 
come in  the category o f being a career crim ina l.
And the question I have, is  on what ju s t i f i c a ­
tion  is  there fo r  a mercy p lea  fo r  a career  
crim inal?"

Minutes o f Hearing o f March 29, 1977, p. 13. In 
add ition , the Attorney General in te r je c ted  severa l 
comments purporting to be based on inform ation ob­
tained outside the record:

"MR. SHEVIN [Attorney G e n e ra l]: Yeah. And
when you say they were tra v e lin g  across the 
country together. They were tra v e lin g  across  
the country committing armed robberies together, 
w eren 't they?
MR. DAVIS [Counsel fo r  a p p e lla n t ]:  I d on 't
that. [s ic ]  I ,  that . . . .
MR. SHEVIN: W ell d id  they have any other kind
o f employment a t  the time?"

Minutes o f Hearing o f March 29, 1977, p. 12.

"MR. SHEVIN: I 'v e  been to ld  by the in v e st ig a t in g
o f f i c e r  now that he a lso  made some th reats at the 
end o f that t r i a l .  Are you fa m ilia r  w ith that?
MR. 3AJ0CZKY [A ss istan t State Attorney].: I ’m
fa m ilia r , S ir ,  that there were rumors that he 
had threatened severa l people who were involved  
in  retu rn ing him to F lo r id a  and the o f f ic e r s  who 
were involved  in his prosecution in Ta llahassee .
Those are . . .

[Footnote 11 / continues on next page .]



I

*

J presented by the prosecuting attorney on beh a lf o f the

State. On September 12, 1977, the Governor signed a

death warrant authoriz ing the e lec trocu tion  o f p e t it io n e r

during the week o f September 19, 1977, and re c it in g  that

" i t  has been determined that Executive Clemency, as authorized

iby A r t ic le  IV, Section 8 (a ) ,  F lo r id a  C onstitu tion , is  not
.

a p p ro p r ia te ."

i

4. State Post-Conviction  Proceedings

On September 13, 1977, p e t it io n e r  f i l e d  in the 

t r i a l  court a Motion to Vacate, Set Aside o r Correct Sentence, 

pursuant to F la .R .C rim .P . 3.850. The Motion ra ised  essen­

t i a l l y  the same claims which were subsequently presented in  

the fe d e ra l habeas corpus p e t it io n  that is  now before  th is  

Court, and requested "an ev iden tia ry  hearing on i t s  . . .

a l le g a t io n s ."  On the day the motion was f i l e d ,  the t r i a l  

court heard o ra l argument but refused  to receive any evidence 

in support o f p e t it io n e r 's  a lle g a t io n s . I t  summarily d is ­

missed the motion that same day.

Footnote i i / continued

MR. SHEVIN: He d id n 't  make those th reats
d irected  to you then?
MR. BAJOCZKY: No, S ir .  I  d id  not hear any
th reats .
MR. SHEVIN: Okay. So, i t ' s  ju s t  hearsay.
MR. BAJOCZKY: T h at 's  co rrec t.
MR. SHEVIN: Yeah."

!
Id . a t  15.

II
Ii  j

I



An immediate appeal was taken to the F lo r id a  

Supreme Court. Three days la t e r ,  on September 16, 1977, 

that court unanimously affirm ed the t r i a l  c o u rt 's  d en ia l 

o f r e l i e f  and i t s  r e fu s a l to a llow  p e t it io n e r  to present 

evidence in support o f h is  c o n stitu tio n a l contentions.

; Spenkelink v . S ta te , 350 So. 2d 85 (F la . 1 9 7 7 ) . On 

November 14, 1977, th is  Couft denied c e r t io r a r i .  434 U .S . 

960.

12/nhe opinions o f the F lo r id a  supreme Court in th is  proceed­
ing are attached as Appendix D, pp. ld -4d  in f r a . In add i­
tion  to the per curiam m ajority  opinion, three concurring  
opinions were w ritten  expressing various degrees o f concern 
about p e t it io n e r 's  contentions or impending execution. 350 
So. 2d at 86-88; pp. 2d-4d in f r a . Mr. Justice Hatchett w rote:

■ "Now that the question o f the s ta tu te 's  ap­
p lic a t io n  is  c le a r ly  presented, I  would a lso  find  
Section 921.141 . . . to be un constitu tiona l as 
app lied . A review  o f the cases that have come 
befo re  th is  Court ind icate  that the death sentence 
is  imposed ir r e g u la r ly ,  u n p red ic tab ly , and fo llow s  
no d iscernab le  [s ic ] p attern . Swan v . S ta te , 322 
S o .2d 485 (F la . 1975 )(v ictim  b ru ta l ly  beaten and 
tied  in such a manner that s tru gg lin g  to free  h e r­
s e l f  would choke h e r ) ; H a ll iw e ll  v . S ta te , 323 S o .2d 
557 (F la . 1975 )(v ictim  beaten to death w ith an iron  bar  
and corpse cut into p ie c e s );  Tedder v . S ta te , 3 22 So.2d 
908 (F la . 1975) [ ( ] v ictim  shot, perpetra to r refused to 
allow  anyone the r ig h t  to aid  her as she b led  to d e a th ).
In a l l  o f  these cases th is  Court reduced the death sen­
tence to l i f e  imprisonment. [Footnote: . . . Obviously
th is Court has had g rea t  d i f f i c u l t y  in applying the p res­
ent s ta tu te . The aggravating and m itigatin g  circumstances 
enumerated in  Section 921.141(5 ), (6) are so i l l  defined
and vague as to escape reasonable and consisten t ap p lic a ­
t io n . ] I t  i s  apparent to me that the death penalty under 
the F lo r id a  sta tu to ry  scheme is  being adm inistered in an 
a rb it ra ry  and cap ric ious manner inconsisten t with the prem­
ise s  underlying Furman v . G eoru ia , 408 U .S . 233 . . .
(1972) , State v . D ixon, supra, and P r o f f i t t  v . F lo r id a , 
supra. But th is  issue was apparently fo rec losed  by the 
United States Supreme Court in i t s  dec ision  in P r o f f i t t .

. . . [T ]he F lo r id a  Supreme Court only revieX'/s 
cases in which the death penalty  is  imposed. This 
Court is  w ithout authority  to review  those cases 
where the t r i a l  judge imposes a sentence o f l i f e

[Footnote 12/ continues on next page.]



B. Proceedings in the Federal D is t r ic t  Court

1. The P e t it io n

P e t it io n e r 's  fe d e ra l habeas corpus proceeding was 

commenced on September 14, 1977. The a lle g a t io n s  which are 

the sub ject o f the present ap p lica tion  fo r  c e r t io r a r i  appear 

in paragraph 12 o f h is habeas corpus p e t it io n . Summarily, 

they a r e :

(1) P e t it io n e r 's  death sentence is  a d isp roportionate  
and u n con stitu tion a lly  excessive  punishment in  
view o f a l l  o f the re levan t m itigating  circum­
stances. (312 (F ), R. 30-31.)

(2) F lo r id a 's  death penalty  sta tu te  is  being adm inis­
tered  in an a rb it ra ry  and cap ric ious fash ion  and 
hence is  unconstitu tiona l as app lied  in th is  case. 
(312 (C ), R .24 -26 .) Further, the death penalty  in  
F lo rid a  is  app lied  a r b i t r a r i ly  and d isc r im in a to r ily  
again st defendants convicted o f k i l l in g  white  
persons. (312(J ) , R. 33-34.)

(3) The exclusion  fo r  cause o f two prospective ju ro rs  
on grounds o f conscientious scrup les aga inst the 
death penalty  re su lted  in a conviction -prone  
ju ry . (3 1 2 (A ) ( i i )  and ( i i i ) ,  as amended, R. 144.)

(4) The procedures used in considering p e t it io n e r 's  
case fo r  executive clemency, which resu lted  in the 
sign ing o f a warrant fo r  h is  execution, were funda­
m entally u n fa ir  and deprived him o f due process o f 
law . (312 (G) , R. 31-32. )

(5) Death by e lectrocu tion  in f l i c t s  unnecessary, wanton 
to rtu re . (312 (C ), R. 26.)

Footnote 12/ continued

imprisonment, rega rd le ss  o f the ju r y 's  recommendation 
o f l i f e  or death. This s itu a tio n  deprives th is  Court 
o f the opportunity to determine whether death is  being  
imposed evenhandedly. Herein l i e s  the breeding grounds 
fo r  a l l  o f the horrors condemned by Furman."

350 So .2d at  87-83? pp . 3d- 4d i n f r a .



2. Proceedings from P e tit io n  to Judcrment 

Because o f  the broad substantive  grounds upon which 

the F ifth  C ir c u it 's  dec ision  was subsequently put, the nature

j  o f the proceedings and the evidence in the D is t r ic t  Court can
|
! a lso  be summarized b r i e f ly .  The proceedings were p rec ip itous  

in the extreme.
I

As noted above, p e t it io n e r  was denied commutation 

and h is  death warrant was signed on September 12, 1977; state  

postconviction  proceedings were f i l e d  on September 13, and 

fe d e ra l habeas corpus proceedings on September 14. On the 

la t t e r  date, the United States D is t r ic t  Court fo r  the Middle
I
D is t r ic t  o f  F lo r id a  (the d i s t r i c t  o f  confinement) tran sfe rred  

the proceedings to the Northern D is t r ic t  (the d i s t r ic t  o f con- 

jv ic t io n ) , re c it in g  that "th is  case could develop into  a case o f 

considerab le  magnitude and len g th ,"  requ ir in g  "c lo se  and extended 

ju d ic ia l  a tten tion " (o rder o f Hon. Howell W. M e lto n ). On Sep­

tem ber ;16 —  the same day that the F lo r id a  Supreme Court a f -  
.1

firmed the d en ia l o f sta te  postconviction  r e l i e f  —  the Hon. 

W illiam  S ta ffo rd  in the Northern D is t r ic t  heard o ra l argument 

on p e t it io n e r 's  app lica tion  fo r  a stay o f h is  September 19 

execution, granted the stay, and se t a hearing on two o f p e t i ­

t io n e r 's  claims fo r  September 21. Evidence and fu rth e r  arguments 

:were heard on September 21, and on September 23 Judge S ta ffo rd
I
^dismissed the p e t it io n  and ordered that that stay o f execution1
i
iexp ire  on September 30. (A supervening stay was th e rea fte r  

granted by the Court o f Appea ls .)

a. The Hearing

Judge S t a f fo rd 's  September 16 order exp ressly

jllimiued the September 21 hearing to two o f p e t it io n e r 's

l

i I

-1 5 -



il
ll
il

I

I
i

i

claim s: a rb it ra ry  and cap ric iou s  ap p lica tion  o f the F lo r id a

death penalty statu te  [P e t it io n  ^ 1 2 (0 ] ,  and d isp roportionate  

use o f  the death penalty in cases o f white victim s [P e t it io n  

1112 (J) ] . R. 129. P e t it io n e r  presented f iv e  w itnesses in  

support o f  these contentions, and the State presented two in  

re b u tta l. Their testimony is  cap itu la ted  in Appendix F,

i pp. l f - 1 5 f  in f r a .
j

E s se n t ia lly , two o f  p e t it io n e r 's  w itnesses te s ­

t if ie d ,.  on the bas is  o f  expe'rience or study, that p e t it io n e r 's -  

death sentence could not ra t io n a lly  be squared with any non- 

a rb it ra ry  pattern  o f ap p lica tion  o f the death penalty in  

F lo rid a  murder cases since enactment o f  the S ta te 's  present 

c a p ita l sentencing statu te  in  1972. A th ird  witness adduced 

ra c e -o f-v ic t im  s t a t is t ic s ;  and p e t it io n e r 's  two remaining

expert w itnesses t e s t i f i e d ,  on the b a s is  o f  those s t a t is t ic s
13/and o f  s t ip u la ted  f ig u r e s ,—  that the numbers o f defendants 

sentenced to d ie  in F lo r id a  fo r  the murder o f white victim s 

was d isp roportion ate ly  h igh , and that ne ither chance nor any 

i known n o n -rac ia l exp lanation  appeared to account fo r  the 

d isp roportion . P e t it io n e r 's  experts had not had ample time 

to gather and analyze a l l  extant data during the few days
I

p r io r  to the hearing, T. 18, 140-142, 162, 181-184, 190-191, 

203; and p e t it io n e r 's  counsel had f i le d  a re levan t d iscovery  

request which had not yet been acted on by the D is t r ic t  Court.

The p a rt ie s  s t ip u la ted  that, o f 113 victim s o f the murder 
defendants sentenced to d ie  under F lo r id a 's  1972 c a p ita l  
punishment statu te , 104 (92%) were whits and 9 (3%) were 
black . T. 131-132.

— ^This request, f i le d  pursuant to Rule 6 o f the Rules Govern­
ing Section 2254 Cases in the United States D is t r ic t  Court, 
sought production, in te r  a l i a , o f the name and race o f each 
person convicted o f second-degree murder, th ird -d eg ree  murder 
and manslaughter since 1973; the county o f each such conviction ; 
and the race o f the v ictim  in each case. R. 139. The D is t r ic t  
Court entered it s  f in a l  order d ism issing the habeas corpus 
p e tit io n  on the m erits without aver having ru led  on p e t it io n e r 's  
pending discovery requests.

I
I



%

In th is  posture o f the case, counsel fo r  p e t it io n e r  

stated  h is subm issions: (1) that the purpose o f  the September 21

hearing had been to permit p e t it io n e r  to substan tiate  h is  

fa c tu a l a lle g a t io n s  with whatever evidence could be analyzed
i
: in  the time a v a ila b le ,  going to the two issues that the D is -  

| tr ic t  Court had agreed to hear; (2) that p e t it io n e r 's  evidence 

io f a rb it ra r in e s s  and d iscrim ination  were s u f f ic ie n t  to demon­

s tra te  the su b s ta n t ia lity  o f these is s u e s , and to warrant 

fu rth e r ev iden tia ry  hearing w h ile  p e t it io n e r 's  execution  

remained stayed by the D is t r ic t  C o u r t (3) that p e t it io n e r  

sought a continuance to prepare and present ad d it io n a l evidence

— '  " .  . • As I  understand the purpose o f
th is  proceeding today is  fo r  us to t e l l  the 
Court that which we do know at th is  tim e, that 
which is  a v a ila b le  that can be set fo rth  in  
beh a lf o f  p e t it io n e r . To the extent that 
there is  data out there that we s t i l l  do 
not have, but can obta in , our p o s it ion  
i s  that we should be- a llow ed  time to

obtain  i t ,  because i t  is  e a s i ly  obta inab le  
m ateria l. But [what] we are try in g  to show 
the Court . . .  is  what we do know at th is  
time to attempt to prove, a t le a s t ,  a prima 
fa c ie  case that we are on to something [ , ]  
that we are r a is in g  leg itim ate  questions  
which requ ire  fu rth er e x p lo ra t io n ."

T. 143. See a lso  T. 216.

" . . .  [Th is] doesn 't  mean we have won.
I t  means we have a r ig h t  to go ahead.

. . .  In f iv e  d ays ' time we have not 
been ab le  to prepare everyth ing that could  
be sa id  on th is  is su e , but we have c le a r ly  
mapped out the d ire c t io n  in  which the inqu iry  
must go ."

T. 277-273. See gen era lly  T. 276-278. In i t s  order o f  
September 23, the D is t r ic t  Court acknowledged that " [b ]ased  
upon the evidence adduced p e t it io n e r  has requested ad d it ion a l 
time to completely present h is  case to the co u rt ."  R. 161.

-17 -



on these issu e s , fo llo w in g  the completion o f appropriate  

d iscove ry ;— ^ and (4) that p e t it io n e r  a lso  repeated h is  

request fo r  an ev iden tiary  hearing on the other issues ra ised

! by his habeas corpus p e t it io n , which had been excluded from

j the scope o f the September 21 h earing .— ^ The D is t r ic t
!
Court denied the continuance and adhered s t r ic t ly  to i t s  

pre -h earin g  order lim it in g  the issues upon which evidence 

could be presented- T. 213-218, 221-222.

b. The D is t r ic t  C ou rt 's  Decision

Two days la t e r ,  on September 23, the
!'
|D istr ic t  Court dism issed the habeas corpus p e t it io n . The 

|court's  f in a l  order states that "only three o f the grounds 

ra ised  m erit d iscussion . The remaining have been au th o rita ­

t iv e ly  disposed o f by the United States Supreme C ourt."

R. 161.

F ir s t ,  the D is t r ic t  Court held that p e t it io n e r
I
j had waived any claim  that h is ju ry  se le c t io n  process 

; v io la ted  the ru le  o f Witherspoon v. I l l i n o i s , 391 U.S. 510 

| (1963), because he fa i le d  to ra is e  the issue on his d ire c t
|t
11appeal to the F lo r id a  Supreme Court; and, xn any event, there

i!were no Withersooon v io la t io n s . R. 161-63. (The court did
!
|not d iscuss p e t it io n e r 's  separate claim  that the exclusion  o f

I

See T. 277-278, where counsel notes the s ign ific an ce  o f the 
pending discovery request. C ounsel's  formal motion fo r  a 
continuance appears a t  T. 213-213; i t  is  denied at T. 222.

| -^ -/ p e t it io n e r ' s fed e ra l habeas corpus p e t it io n  had e x p l ic i t ly  
asked fo r  a hearing on i t s  seve ra l fa c tu a l a lle g a t io n s .
R. 35. Although the court and both p a rt ie s  recognized  
that the September 21 hearing i t s e l f  was lim ited  to two 
issues by Judge S ta f fo rd 's  September 16 order, T. 17, 32, 
35-36, 214, 221-222, p e t it io n e r 's  counsel included in  his 
motion fo r  a continuance a request fo r  the opportunity  
to present evidence on the issues "other than the two 
which have been heard today . . . [upon] which the 
p e t it io n e r  would contend [that he] does have a r ig h t  to 
an ev iden tiary  h ea rin g ."  T. 214.

I

I
i!
ii{I

I i

-13 -



death -scrup led  ju ro rs  had resu lted  in a conviction -prone  

ju ry . )

Second, the court ru led  that fa c tu a l inqu iry  into  

the question o f a rb it ra ry  ap p lica tion  o f the death penalty  

in  F lo r id a  was fo rec lo sed  by P r o f f i t t  v. F lo r id a , 428 U.S.

242 (1976). R. 163. Further, cases in which death sentences 

were reversed by the F lo r id a  Supreme Court appeared to pre­

sent "s ig n if ic a n t  m itiga tin g  circumstances that serve to 

f a i r ly  d is t in gu ish  those cases from p e t i t io n e r 's . "  R. 164.

F in a l ly , w ith  regard to p e t it io n e r1s argument 

that r a c ia l  d iscrim ination  could be in fe rred  from the d is ­

proportionate im position o f the death penalty fo r  the k i l l in g  

o f w h ites, the court ru led  that:

"Although there is  no mention o f the 
race o f the victim s o f murderers in the 
P r o f f i t t  op in ion , i t  is  c le a r  that 
the United States Supreme Court was 
confident that the safeguards which 
are provided are s u f f ic ie n t  to insure  
evenhanded ap p lic a t io n . I t  is  fo r  
th is  reason that th is  court must con­
clude that the focus o f any inqu iry  
into the ap p lica tion  o f the death 
penalty must n ece ssa rily  be lim ited  to 
the persons who rece ive  i t  ra ther than 
th e ir  v ic t im s ."

R. 165.

C. The Decision o f the Court o f Appeals

P e t it io n e r  contended in the F ifth  C irc u it  

that the D is t r ic t  Court had e rred  in  re je c t in g  a l l  but two 

o f h is  claims without a hearing, and in  re fu s in g  to permit 

him to complete a proper ev id en tia ry  presentation  on those 

two. On August 21, 1978, the Court o f Appeals a ffirm ed in a 

sweeping opinion holding that Judge S ta ffo rd  need not have 

conducted any ev iden tiary  hearing on any o f p e t it io n e r 's  

claims because, in  i t s  view , a l l  such claims were le g a l ly  

fo rec losed  rega rd less  o f the f a c t s :

-19 -



" . . .  This Court views those o f  
Spenkelink 's contentions on which the t r i a l  
court did not conduct a hearing and those 
on which the court conducted an a lle g e d ly  
inadequate hearing as contain ing le g a l  ques­
tions on ly . We assume fo r  the sake o f argu­
ment that the fa c tu a l a lle g a t io n s  underlying  
these contentions are true , because, even i f  
they are, the p e t it io n e r  cannot p re v a il on them 
as a matter o f  law . . . . "

578 F.2d at 590; p. 9a in f r a .

S p e c i f ic ia l ly ,  the court held  that p e t it io n e r  had not 

been e n t it le d  to a hearing on _his claim s that h is  death sentence 

resu lted  from a rb it ra ry , cap ric iou s , and r a c ia l ly  d iscrim inatory  

app lica tion  o f F lo r id a 's  c a p ita l punishment s ta tu te . Henceforth, 

a fe d e ra l d i s t r ic t  court in the F ifth  C irc u it  may not conduct a 

hearing on contentions o f  th is  nature unless a habeas p e t it io n e r  

can show that h is  death sentence is  "paten tly  unjust and would 

shock the conscience," 578 F.2d at 606 n.28; p. 25a n.28 in f r a , 

or is  the product o f "some s p e c if ic  act or acts evidencing in ­

ten tion a l or purposefu l r a c ia l  d iscrim ination  aga in st him, " i d . 

at 614 n.40; p . 33a n.40 in f r a . The Court o f Appeals "an tic ipates  

that such in tervention  w i l l  be in frequent and only fo r  the most 

com pelling reasons." I b id . In sum, the court below concluded 

that since F lo r id a 's  death penalty  statu te  had been upheld on 

i t s  face in P r o f f i t t  v . F lo r id a . 428 U .S . 242 (1976), the statute  

is  now in su lated  from fe d e ra l habeas corpus claims that i t s  a p p li ­

cation  is  a rb it ra ry , cap ric ious or d iscrim inatory . 578 F.2d at 

605-606, 613-614; pp. 24a-25a, 32a-33a in f r a .

As fo r  p e t it io n e r 's  fa c tu a l a lle g a t io n  that a ju ry  

stripped  o f a l l  veniremen who consc ien tiously  oppose the 

death penalty is  d isp rop o rtion ate ly  l ik e ly  to convict, the 

court "assume[d] i t s  v a l id it y "  because, " [e ]ven  i f  i t  is  true,

-20 -



the p e t it io n e r 's  contention s t i l l  must f a i l . ” 578 F.2d at 594; 

p. 13a in f r a . The court held  that so long as veniremen 

favoring  the death penalty do not d isp lay  overt b ias  in favor  

o f conviction  when they are questioned on v o ir  d i r e , " [s ]u c h  

persons cannot accurate ly  be branded p rosecu tion -p ron e .”

I b id . The court recognized that the death -scrup led  ven ire ­

men excluded in p e t it io n e r 's  case had s im ila r ly  sworn to be 

im partia l on the question  o f g u i l t  o r  innocence. Nonetheless, 

the court b e lieved , F lo r id a  could  p roperly  conclude that 

” . . . i t  is  e n t ire ly  p o ss ib le  —  perhaps even probable  —  

that such a venireman could not f a i r ly  judge a defendant's  

g u i l t  or innocence when a c a p ita l fe lony is  ch arged ." Id . at  

595; p . 14a in f r a .

Follow ing th is  Court’ s dec ision  in  Lockett v. Ohio,

____U .S. ____, 57 L .E d .2d 973 (1978) , p e t it io n e r  f i l e d  a sup­

plemental b r ie f  in  the Court o f Appeals contending that the 

ju ry  and the t r i a l  court had u n con stitu tion a lly  been forbidden  

by F lo rid a  law to consider a l l  re levan t m itigatin g  circum- 

stancas in h is case. P e t it io n e r  pointed out that the 

c o u rt 's  charge to the ju ry  had lim ited  consideration  o f 

m itigatin g  circumstances to the seven fac to rs  sp e c if ie d  in  

F la . S tat. Ann. §921.141(6 ), and that the t r i a l  c o u rt 's  

own sentencing find ings s im ila r ly  re f le c te d  i t s  view that 

circumstances in m itigation  were lim ited  to the confines o f 

the sta tu te . P e t it io n e r  contended that h is sentencing process 

had therefore  excluded independent consideration  o f such 

m itigating  fac to rs  as provocation and perceived ju s t i f ic a t io n .  

He noted that the F lo r id a  Supreme Court had a lso  construed the



istatu to ry  l i s t  o f m itigatin g  circumstances as ex c lu s ive .

Cooper v . S tate . 336 S o .2d 1133, 1139 (F la . 1976). The Court 

o f Appeals, however, determined that since the ju ro rs  had heard 

evidence o f Szymankiewicz' s mistreatment o f p e t it io n e r , they had 

been fre e  to consider provocation  as a m itigating  fa c to r  even 

though the F lo r id a  sta tu te  on which they were e x p l ic i t ly  charged 

did not. include such a fa c to r . 578 F.2d at 621; p.  40a in f r a .

The court read Lockett as rea ffirm in g  the c o n s t itu t io n a lity  o f 

the F lo r id a  death penalty  statu te  notwithstanding the tension

;between th is  C ou rt 's  holding in Lockett and the F lo r id a  Supreme|

jCourt's holding in Cooper . I b id .

P e t it io n e r 's  contention that the clemency proceedings 

which re su lted  in the sign ing  o f h is death warrant deprived him 

o f l i f e  w ithout due process was re jec ted  on au thority  o f Schick
II
jjv. Reed, 419 U .S . 256 (].974) , and Meachum v . Fane. 427 U .S . 215
i! ■'
ij (1976) . 578 F.2d at 617-619; pp . 36a- 38a in f r a . His claim  that

jhe was e n t it le d  to a hearing to  e s ta b lish  that e lec trocu tion  is  

|unnecessarily torturous and wantonly c ru e l in the lig h t  o f cu r­

rent medical knowledge and a v a ila b le  a lte rn a t iv e  means o f exe­

cution was re jec ted  on au th ority  o f  In  re  Kemmler. 136 U .S . 436
I
j(1890) . 578 F.2d at 616; p . 35a in f r a .



REASONS FOR GRANTING THE WRIT

This p e t it io n  presents a number o f somber and im­

portant questions which a f fe c t  not only p e t it io n e r  but an 

overwhelming number o f the 478 persons now imprisoned under 

sentence o f death.

F lo r id a 's  Death Row, housing 120 men and women, is  

by fa r  the most populous in the country. Yet i t  now c le a r ly  

appears that the c a p ita l punishment system which th is  Court 

considered in P r o f f i t t  v . F lo r id a , 42S U .S . 242 (1976), is  

not what the Court contemplated at that time. This d is c re ­

pancy underlies seve ra l issues on which p e t it io n e r  seeks c e r ­

t i o r a r i .  I t  assumes added s ig n ific an ce  because o f the mani­

fe s t  inconsistency between the F lo r id a  Supreme C ou rt 's  con­

stru c tion  o f the F lo r id a  sta tu te  and the co n stitu tio n a l r e ­

quirements subsequently recognized in Lockett v . Ohio.

____U .S . _____ , 57 L.Ed.2d 973 (1978), and B e ll  v . Ohio.

____U .S . _____ , 57 L .E d .2d 1010 (1973).

However, the dec is ion  o f the Court o f  Appeals below  

presents even graver issu es . By it s  r a d ic a l con stric tion  

o f the ro le  o f  fe d e ra l habeas corpus in death cases, that 

dec is ion  erects an almost impregnable b a r r ie r  to the en­

forcement o f fundamental c o n stitu tio n a l safeguards in the 

jdeath sentencing processes that a f fe c t  more than th ree -

;quarters o f the persons now on Death Row in the United

13/.S ta te s .—  The w r it  o f habeas corpus is  "both the symbol and

1:18/
!— '5tatxsta.cs maintained by the N .A .A .C .P . Legal Defense and 

Educational Fund, In c ., revea l that 360, or 75%, o f the 
478 persons now on Death Row in the United S tates are 
incarcerated  in States w ith in  the F ifth  C irc u it .

-23 -



guardian o f in d iv id u a l l i b e r t y . "  Peyton v. Rowe, 391 U.S.
iq  /

54, 58 (1968 ).—  But the courts below have ru led  that a 

fed e ra l habeas corpus p e t it io n e r  is  not e n t it le d  even to an 

ev iden tia ry  hearing u p on 'p la in ly  su b stan tia l fa c tu a l a l ­

legation s that the procedures under which he was condemned 

jv io la te  e s se n t ia l co n stitu tio n a l r ig h ts , and that h is  death sen­

tence is  the product o f the id e n t ic a l a rb it ra ry , cap ric iou s , 

and d iscrim inatory  c a p ita l sentencing pattern  which th is  

Court held  unconstitu tiona l in  Furman v. G eorg ia , 408 U.S.

238 (1972).

I f  the dec ision  o f the Court o f Appeals be taken l i t e r ­

a l ly  when i t  says that i t  "assum e[s] fo r  the sake o f argument 

that the fa c tu a l a lle g a t io n s  underlying . . . [p e t i t io n e r 's ]  

contentions are true" and nevertheless ru le s  that "p e t it io n e r  

Icannot p re v a il on them as a matter o f law ," 578 F.2d at 590;
l
jP* 9a in f r a , then i t  both fo rec lo ses  fo r  severa l hundred
I
|condemned inmates the m erits o f important con stitu tion a l 

questions which th is Court took pains to reserve in P r o f f i t t

and Witherspoon v. I l l i n o i s , 391 U.S. 510 (1968); and i t  a lso  

a ttr ibu te s  to P r o f f i t t  the unprecedented holding that a 

statute v a lid  on i t s  face cannot be challenged in  i t s  ap­

p lic a t io n . I f  the Court o f  Appeals does not mean l i t e r a l l y  

what i t  says, then the e f fe c t  o f i t s  dec ision  is  to preclude  

jthese inmates from obtain ing an ad jud ication  o f unresolved  

!con stitu tion a l issues perta in in g  to th e ir  death sentences
II
b e fo re  they are executed. E ither way, review  by th is  Court 

is  c a lle d  fo r .

i l iy See, e . g . , Smith v. Bennett, 365 U.S. 708, 712-713 (1961); 
Secretary fo r  Home A f fa i r s  v. O 'B rien , [1923] A.C. 603, 609 
(H.L. 1923).

-24 -



The Court has, o f course, approved c a p ita l punish­

ment upon the assumption that i t s  app lica tion  would be 

surrounded with proper and e f fe c t iv e  guarantees aga in st  

i r r e g u la r it y .  Gregg v. G eorg ia , 428 U.S. 153 (1976);

P r o f f i t t  v. F lo r id a , supra. But th is  is  a fa r  cry from —  

indeed, i t  is  the express an t ith e s is  o f —  what the Court 

o f Appeals below has done by slamming the fe d e ra l courthouse 

door aga in st the claims o f death-sentenced p risoners  who 

seek the w r it  o f  habeas corpus as th e ir  la s t  assurance that 

the actua l adm in istration  o f the death penalty and i t s

in f l ic t io n  upon them conform to co n stitu tio n a l premises and

2 0 /Fourteenth Amendment requirem ents.—  The guarantee or

the w r it  has been sa id  by esteemed authority  to be "the most
21/

important human r igh ts  p rov is ion  in  the C o n st itu t io n ."—

It s  severe curtailm ent in cases where the "awesomeness o f
2 2/

the death pen a lty "— ■ p a r t ic u la r ly  demands the w r i t 's  se rv ice

as an ultim ate safeguard  should not be l e f t  unreviewed

23/"by the h ighest tr ibu n a l known to the Constitu tion . —

—  The existence o f state  ap p e lla te  and postconviction  process, 
here invoked in  vain , has not hereto fore  been thought 
" s u f f ic ie n t  to a llow  a Judge o f the United States to 
escape the duty o f examining the fac ts  fo r  h im self when 
i f  true as a lle g e d  they make the t r i a l  ab so lu te ly  v o id ."  
Moore v. Dempsey, 261 U.S. 86, 92 (1923). See a lso  Brown 
v. A l le n , 344 U.S. 443, 554 (1953 )(d issen tin g  opinion o f 
Justice B la c k );

" . . .  [ I ] t  is  never too la te  fo r  [fe d e ra l ] courts  
in habeas corpus proceedings to look s t ra ig h t  through 
procedural screens in order to prevent fo r fe itu re  o f  
l i f e  or l ib e r t y  in fla g ra n t  defiance o f the Constitu ­
tion  - . . .  Perhaps there is  no more exa lted
ju d ic ia l  f•unction."

^ -^Chafee, The Most Important Human Right in the C on stitu tion , 
32 B.U. L. REV. 143, at 143 (1952).

2 2 /
—  Grisham v. la g an , 361 U.S. 278, 230 (1960).

— •' Ex parte M il l ig a n , 4 W all. 2, 111 (1566).
-2 5 -



I .

THE COURT SHOULD GRANT CERTIORARI 
TO CONSIDER WHETHER FLORIDA'S DEATH 
PENALTY STATUTE, AS INTERPRETED BY 
THE SUPREME COURT OF FLORIDA AND 
APPLIED BY THE TRIAL COURT IN THIS 
CASE, UNCONSTITUTIONALLY RESTRICTS 
CONSIDERATION OF MITIGATING 
CIRCUMSTANCES.

In Lockett v. Ohio, ____U .S .____, 57 L.Ed.2d 973

(1978), th is  Court in va lid a ted  O h io 's  death penalty statute  

because i t  precluded the- sentencing authority- from g iv in g  

"independent m itigating  weight" to a l l  re levan t m itigatin g  

circum stances. Id . at 990 (p lu r a l i t y  op in ion ). The Court 

held that

" - .. . the Eighth and Fourteenth  
Amendments requ ire  that the sentencer, 
in  a l l  but the ra re s t  kind o f c a p ita l  
case, not be precluded from considering  
as a m itigating  fa c t o r , any aspect o f a 
defendant's  character or record and any 
of. the circumstances o f the o ffen se  that 
the defendant p ro ffe rs  as a bas is  fo r  a 
sentence le ss  than death ."

I b id . (Emphasis in o r ig in a l . )  The Court remarked that two 

years e a r l i e r ,  in P r o f f i t t  v. F lo r id a , 428 U.S. 242 (1976), 

" s ix  members o f th is  Court assumed in approving the [F lo r id a ] 

s ta tu te ,th a t  the range o f m itigating  fac to rs  l is t e d  in 

. . . [F la . S tat. Ann. § 921.141(6 )] was not e x c lu s iv e ,"  

Lockett v. Ohio, supra , 57 L.Ed.2d at 991 (p lu r a li t y

2d /
opinion) (emphasis ad d ed ).—

The Court re ite ra te d  in  Lockett:

"None o f the statu tes we sustained in  
Gregg [v . G eo rg ia , 428 U.S. 153 (1976)] 
and the companion cases c le a r ly  operated  
a t  that time to prevent the sentencer from 
considering any aspect o f the defendant's  
character and record or any circumstances 
o f his o ffense  as an independently m itiga t­
ing fa c to r ."

991 (p lu r a l i t y  opinion) (emphasis added ).
-26 -

Id . at



I t  is  now apparent from the F lo r id a  Supreme

C ou rt 's  post-P r o f i t t  construction  o f the F lo r id a  statu te  

that th is  assumption was in co rrec t . The Court o f  Appeals 

below recognized the tension between the view o f F lo r id a  law 

expressed by th is  Court in P r o f f i t t  and the more r e s t r ic t iv e  

in te rp re ta t ion  la t e r  announced by the F lo r id a  Supreme 

Court in  such cases as Cooper v. S ta te , 336 S o .2d 1133 (F la . 

1976), but f e l t  compelled to conclude that L o ck e tt 's  treatment 

o f P r o f f i t t  had l e f t  P r o f f i t t  "sound law ," 57S F.2d at  

620-621; pp. 39a-40a in f r a , because " [o ]b v io u s ly , we are w ith ­

out power or authority  to o ve rru le  the express fin d in g  

o f the Supreme Court" that the F lo r id a  statu to ry  scheme 

was co n st itu t io n a l. 578 F.2d at 621; p. 40a in f r a .

Just as obv iously , th is  Court does not lack that 

au th ority . I f  the s ta te -la w  p red icate  o f  i t s  P r o f f i t t  

dec is ion  has subsequently been demonstrated to be wrong, 

th is  Court obv iously  possesses ample power, to co rrect it s  

misunderstanding, upon which —  as we s h a ll  sh o rt ly  see —  

p e t it io n e r 's  l i f e  is  about to be fo r fe it e d .

Only one week a ft e r  P r o f f i t t , the Supreme Court 

o f F lo rid a  e x p l ic i t ly  held  in  Cooper v. S ta te , supra , that 

the l i s t  o f  seven m itigatin g  fa c to rs  enumerated in the 

S ta te 's  death penalty  sta tu te  is  exhaustive, and that no 

m itigatin g  circumstances other than those set fo rth  by 

the statu te  may be considered in  c a p ita l sentencing. The 

court stated  that

" . . .  The so le  issue in  a sentencing hearing  
under Section 921.141, F lo r id a  Statutes  
(1975), is  to examine in  each case the 
item ized aggravaring and m itigatin g  c i r -  
cumstances. Evidence concerning other 
matters have fsicl  no p lace in that proceeding

— / —



any more than pure ly  specu la tive  matters 
ca lcu la ted  to in fluence  a sentence through 
emotional appeal. Such evidence threatens  
the proceeding with the un d isc ip lin ed  d is ­
c re tion  condemned in  Furman v. G eorg ia , 408
U.S. 238 (1972). . . .

As to p ro ffe red  testimony concerning 
Cooper's p r io r  employment, i t  is  argued that 
th is  evidence would tend to show that Cooper 
was not beyond r e h a b ilit a t io n . Obviously, 
an a b i l i t y  to perform g a in fu l work is  gene­
r a l l y  a p re req u is ite  to the reform ation o f  
a crim inal l i f e ,  but an equ a lly  v a lid  fa c t  
o f  l i f e  is  that employment is  not a guarantee  
that one w i l l  be law -ab id in g . Cooper has 
shown that by h is  conduct here. In anv event, 
the L eg is la tu re  chose to l i s t  the m itigatin g  
circumstances which i t  judged to be r e l ia b le  
fo r  determining the appropriateness o f a death 
penalty fo r  ' the most aggravated and unm iti­
gated o f serious crim es, '  and we are not fre e  
to expand the l i s t . "

336 S o .2d at 1139 (footnote om itted; emphasis added). The 

court derived  th is  in te rp re ta t io n  from the le g is la t iv e  intend­

ment o f  the 1972 sta tu te :

"Section  921.141(2) requ ires  the ju ry  to render 
i t s  advisory  sentence 'upon the fo llow in g  m atters:
(a) whether s u f f ic ie n t  aggravating circumstances 
e x is t  as enumerated in subsection (6) ; (b) whether
s u f f ic ie n t  m itigatin g  circumstances e x is t  as enu­
merated in subsection (7 ) , which outweigh the ag­
gravating  circumstances found to e x is t  . . . . '  
(emphasis added ). This lim ita t io n  is  repeated in  
Section 921.141(3 ), governing the t r i a l  c o u rt 's  
decision  on the penalty . Both sections 921.141(6) 
and 921.141 (7 )^ -^beg in  w ith words o f mandatory lim i­
ta tion . This may appear to be narrow ly harsh, but 
under Furman un d isc ip lin ed  d isc re t io n  is  abhorrent 
whether operating fo r  or aga in st the death p en a lty ."

££/ The numerical designations o f  sta tu to ry  subsections that
appear in F la . Stat.. Ann. § 921.141 and are c ited  in Cooper 
are erroneous. The subsection enumerating aggravating c i r ­
cumstances is  (5 ),  not " ( 6) , "  and the one enumerating 
m itigating  circumstances is  (6) ,  not " ( 7 ) . "

-2 8 -



Id . at 1139 n-7 (emphasis in  o r ig in a l )

26/ Confronted with the inconsistency between Cooper and
Lockett, the F lo r id a  Supreme Court has ju s t  recen tly  responded 
by "perfo rm [ing ] a remarkable job o f  p la s t ic  surgery" on Cooper. 
Shuttlesworth v. Birmingham, 394 U .S. 147, 153 (1969). In a b r i e f  
opinion denying rehearing in Sonaer v. S ta te , F la . S.C . No. 52,642 
(rehearing denied December 21, 1978), the court: sa id  that " [ i ] n  
Cooper, th is  Court was concerned not w ith whether enumerated 
fa c to rs  were being ra ised  as m itiga tion , but w ith whether the 
evidence o ffe red  was p ro b a t iv e ,"  id_. at pp. 1 - 2 .  I t  co lle c ted  
a number o f  e a r l ie r  cases in  which i t  had purported ly  sub s i le n t io  
"approved a t r i a l  c o u rt 's  consideration  o f  circumstances in  m itiga ­
tion  which are not included on the sta tu to ry  l i s t , "  id . at p. 2; 
and, c it in g  the hold ing o f  the Court o f  Appeals below  in  p e t it io n e r ' 
case, i t  upheld the F lo r id a  sta tu te  as consisten t w ith Lockett be ­
cause " [o ]b v io u s ly , our construction  o f Section 921.141(6) has been 
that a l l  re levan t circumstances may be considered in m itigation , and 
that the fac to rs  l is t e d  in the sta tu te  merely in d ica te  the p r in c ip a l  
fa c to rs  to be considered ," i b id .

s

For se v e ra l reasons, Sonaer does not thwart p e t it io n e r 's  
challenge to § 921.141 under Lockett. F i r s t , Cooper simply does 
not say what Sonaer says i t  says. Cooper states e x p l ic i t ly  that 
the m itigating  circumstances lis ted , in  § 921.141 are exc lu s ive , 
and that "we are not fre e  to expand the l i s t , "  336 S o .2d at 1139.
Nor do the other cases c ited  in  Songer say what they are a lle g ed  
to say. A l l  that were decided p r io r  to Lockett p la in ly  involved  
sta tu to ry  m itigation , and d id  not endorse consideration  o f non— 
sta tu to ry  m itigatin g  circum stances. This Court has never accepted  
s ta te  ju d ic ia l  re in te rp re ta t io n s  o f  s ta te  law that involve "obvious  
subterfuge to evade consideration  o f a fe d e ra l is su e ."  Radio 
Station  WOW, Inc, v. Johnson, 326 U.S. 120, 129 (1945). See, e . a . , 
Ward v. Love County, 253 U.S. 17 (1920). Second, Sonaer' s r e in ­
te rp re ta tion  o f Cooper leaves § 921.141, as construed and recon­
strued , unconstitu tiona l under Lockett. For, according to Sonaer, 
the Cooper dec is ion  app lies  § 921.141 to exclude as not "p ro b a t iv e ,"  
in te r  a l i a , "p ro ffe re d  testimony concerning Cooper's p r io r  em­
ployment [which] i t  is  argued . . . would tend to show that Cooper 
was not beyond re h a b ilita t io n "  (Cooper v. S ta te , sup ra , 336 S o .2d 
a t  1139). Whatever Songer may mean by "p ro b a t iv e ,"  the concept 
so exem plified  involves a lim ita t io n  upon the p resentation  o f m it i­
ga tin g  evidence that is  m an ifestly  fa r  narrower than Lockett w i l l  
countenance. T h ird , s ta te -co u rt  re v is io n  o f s ta te -la w  ru le s  cannot 
re t ro a c t iv e ly  de feat the v in d ica tion  o f fe d e ra l c o n s t itu t io n a l r ig h t s , 
i f  l i t ig a n t s  "cou ld  not f a i r l y  be deemed to have been apprised o f  
i t s  existence" when th e ir  cases were be fo re  the sta te  c o u rts .
N .A .A .C .P . v. Alabama ex r e l .  P a tte rson , 357 U .S . 449, 457 (1958).
Even i f  Sonaer is  deemed to have changed F lo r id a  law fo r  the fu tu re , 
i t  cannot change what i t  was a t  the time o f p e t it io n e r 's  t r i a l .
See, e . q . , Shuttlesworth v. Birmingham, 382 U .S. 87, 90-92 (1965) ; 
Shuttlesworth v. Birmingham, 394 U.S. 147, 153-153 (1969). F in a lly ,  
"we need not deal in assum ptions," id . at 156, concerning the law ofi 
F lo rid a  as i t  was when p e t it io n e r  was t r ie d  fo r  h is  l i f e .  For, 
as we sh a ll see in  the text that fo llo w s , p e t it io n e r 's  t r i a l  judge 
e x p lic i t ly  lim ited  the ju ry 's  and h is  own consideration  o f m it i­
gating circumstances to the confines o f  the s ta tu te , p re c is e ly  as 
Lockett fo rb id s . That alone is  s u f f ic ie n t  to void  p e t it io n e r 's  
death sencer.ce. See pp. 31-2 3 & none 23 in fry .

-2 9 -



As in Ohio, where " [ t ]h e  lim its  on consideration  

o f m itigatin g  fac to rs  . . . appear to have been a d ire c t  

[ l e g i s la t iv e ]  response to Furman, " Lockett v. Ohio, supra ,

57 L .E d .2d at 986 n.7 (p lu r a li t y  op in ion ), the F lo r id a  

L e g is la tu re 's  concern had been to narrow sharp ly  the sentenc­

ing d isc re t io n  p o ss ib le  in  death cases. On March 20, 1972, 

ju s t  p r io r  to Furman, the L e g is la tu re  had passed a new c a p ita l  

i sentencing law perm itting consideration  o f m itiga tin g  circum­

stances "in c lud in g  but not lim ited  to" a l i s t  o f  fa c to rs  enu­

merated in  the s ta tu te . Laws o f F lo r id a , Ch. 72—72 (1972).

The statu te  was to take e f fe c t  on October 1, 1972. But as a

re s u lt  o f Furman, the new statu te  was abandoned in  favor o f
27y

the present F la . Stat., Ann. §921.141.

27/ The le g is la t iv e  h is to ry  o f  § 921.141 makes i t  in d is ­
pu tab ly  p la in , as Cooper la te r  he ld , that the sta tu to ry  l i s t  o f 
m itigatin g  circumstances was intended to be exc lu s ive . The o r i ­
g in a l House b i l l  provided that both aggravating and m itigatin g  
circumstances " s h a l l  be lim ited  to" ro ste rs  o f enumerated fa c to rs .  
Journal o f the F lo r id a  House o f R epresen tatives, Spec ia l Session  
1972 (November 29, 1972) 18 [h e re a fte r  c ited  as House Journal] .
The House's comment dec lares that "m atters to be considered are  
lim ited  only to those aggravating and m itigating  circumstances 
enumerated in subsections (3) and ( 4 ) I d . at 19. Thus b u l l  
passed the House on November 29, 1972. Id . at 23.

The Senate amended the b i l l  by ( i )  d e le t in g  the words 
" lim ited  to" in  the introductions to both ro s te rs , and ( i i )  p ro ­
v id ing  that, as to both aggravating and m itigating  circum stances, 
the court could consider " [a ]n y  other evidence the court deems 
re levan t to sentence." Journal o f the F lo rid a  Senate, Spec ia l 
Session 1972 (November 30, 1972) 25 [h e re a fte r  c ited  as Senate 
J o u rn a l]. The House, upon being advised o f these amendments, 
exp ressly  refused to concur. House Journal (November 30, 1972)
41, 42. The Conference Committee thereupon recommended that the 
Senate recede from these amendments, among others; and i t  returned; 
e s s e n t ia lly  to the House version  in the Conference Committee b i l l  > 
that u ltim ate ly  passed both houses. Senate Journal (December 1, !
1972) 37, 39-40; House Journal (December 1, 1972) 43, 50-52.

i
A techn ical oversigh t in the tran sc rip t io n  o f the 

Senate amendments led to some confusion be fo re  th is  Court at the 
time o f P r o f f i t t . The Senate Journal c le a r ly  r e f le c t s  that the 
Senate voted to d e le te  the words " lim ited  to" with respect to both 
aggravating and m itigating  circum stances, so that the ouI j. would

[Foocnoue 27/ continues on next p a g e .]i

i



I

In p e t it io n e r 's  case, the t r i a l  court scrupulously-

adhered to the L e g is la tu re 's  design - Its  charge to the ju ry

p la in ly  stated  that " [ t ]h e  m itiga tin g  circumstances which

you may consider, i f  e stab lish ed  by the evidence, are th ese ,"

and then proceeded to l i s t  verbatim  the seven m itigatin g  fac to rs

28/
set fo rth  in the s ta tu te - M it. T. 79.— ' And in i t s  "F indings * 1

Footnote 27/ continued

read: "Aggravating circumstances s h a ll  be [ l±m±feed-fee] the
fo l lo w in g : . . "  and "M itiga tin g  circumstances s h a ll  be [lim ited  
fee] the f o l lo w in g : - . . . "  Senate Journal (November 30, 1972) 25. 
However, th is  p a ra lle lism  was not tran scribed  into the b i l l  
transm itted to the House la t e r  that day. That tex t, as reported  
in  the House Journal, erroneously  reads as fo llo w s : "Aggra­
vating circumstances s h a ll  be lim ited  to the f o l l o w in g : . . . , "  
and "M itiga tin g  circumstances s h a l l  be [iimifeee-fee] the fo llo w ­
ing :. . . . "  House_jJjDurnal_, [November 30, 1972) 41. The Conference 
Committee, re s to r in g  the House's version  to a d ra ft  which adopted 
the Senate 's  p rov is ion s on many other issu es , fa i le d  to co rrec t  
the e rro r  that had crept in to  the tran sc rip t io n  o f the Senate 
b i l l .  This Court, w ithout the b e n e fit  o f  the le g is la t iv e  h is to ry ,  
understandably but erroneously  emphasized the n o n -p a ra lle l in ­
troductions in § 921.141 (5) and (6) to the ro ste rs  o f  aggra ­
vating  and m itiga tin g  circum stances. P r o f f i t t  v. F lo r id a , supra , 

i  428 U .S. a t  250 n -8. However, the F lo r id a  Supreme C ou rt 's  reading  
j  o f le g is la t iv e  in tent in Cooper v . S ta te , supra , 336 So. 2d at  
| 1139 n .7 , is  c le a r ly  more accurate.
I
| -8/ Although the t r i a l  ju ry 's  sentencing recommendation is  
merely advisory  under F lo r id a  law, there can be no doubt 
that a recommendation aga in st death returned by a ju ry  pro ­
p e r ly  in structed  pursuant to Lockett would have spared p e t i ­
t io n e r 's  l i f e  by v irtu e  o f the ru le  o f  Tedder v. S ta te ,
322 So .2d 908. (F la . 1975), noted in P r o f f i t t  v. F lo r id a , 
su p ra , 428 U .S . at 248-250. See, e .g .  . Burch v. S tate , 343 
S o .2d 831 (F la . 1977); Buckrem v. S ta te , 355 S o .2d 111 (F la .

1973); and see p . 4 f  in fra . Therefore, the in stru c tion  which 
lim ited  the ju r y 's  consideration  o f m itigatin g  circumstances 
to those enumerated in F la . S ta t . Ann. § 921.141(6) was p la in ly  
p re ju d ic ia l .  Since th is  in stru ction  was not conformable to

1 the co n stitu tio n a l requirements o f  Lockett, the ju ry 's  recom- 
| j  mendation o f  death and p e t it io n e r 's  death sentence stand in  
J j  exactly  the same p os it ion  as any ju ry  ve rd ic t  and ensuing ju d g -  
| ment rendered upon ju ry  in struction s that perm it them to be 

rested  upon a fe d e ra lly  unconstitu tiona l ground. £ .g . , T erm in ie llc  
v. Chicago, 337 U.S. 1, 4-5 (1949); Strombero v. C a l i fo r n ia ,

! 283 U.S. 359, 363-370 (1931). For i t  is  c le a r  that the same 
b a s ic  procedural p rotections necessary to assure aga inst un­
con stitu tio n a l v e rd ic ts  apply to death -penalty  t r i a l s  as to
t r i a l s  o f  g u i l t  o r  innocence. P r a s n a l l  v. G e o r g ia , ____ U .S. ____,

ji 58 L.2d.2d 207 (1978) .

-3 1 -



i

Upon Which Sentence o f Death is  B ased ," the court equally

firm ly  re s t r ic te d  it s  an a ly s is  o f m itigation  to the statutory

m itigating  circumstances sp e lle d  out w ith in  § 921.141(6).

R. 41. See pp. 8-9 supra .

This r e s t r ic t iv e  approach was p a r t ic u la r ly  damaging

to p e t it io n e r  because o f the strength o f seve ra l commonly

recognized m itigating  circumstances that are presented by

the fa c ts  o f  h is  case but f a l l  outside the narrow confines

o f the F lo rid a  sta tu te . Joseph Szymankiewicz' s treatment o f

John Spenkelink, even i f  in s u f f ic ie n t  to d rive  a man to the

point o f "extreme mental o r emotional d istu rban ce ," could

sure ly  be found to constitu te  provocation o f the most severe  

29 /natu re ;—  yet provocation by the v ictim  is  not l i s t e d  as a
30/

m itigatin g  fa c to r  in the F lo r id a  statu te—  and thus could

j nor. be considered at sentencing. S im ila r ly , had the F lo r id a
j
I statute conformed to the d ic ta te s  o f Lockett, the t r i a l  jury

i i  or jjudge might have considered in m itigation  that p e t it io n e r 's

l |  5j! o ffense aga in st Szymankiewicz was "committed under circum- 

,1 stances which the defendant be lieved  to provide a moral

29/— • See pp. 5 - -  6, 9 -1 0 n .8  supra. The Court o f Appeals 
below speculated that the ju ry  "apparently  d isb e lie v ed "  
p e t it io n e r 's  testimony that Szymankiewicz had tormented 
him. 578 F.2d at 586 n .3 ; p. 5 a n. 3 in f r a . But we 
have no sp ec ia l v e rd ic t  to that e f fe c t ,  and the ju ry  
could ju s t  as e a s i ly  have be lieved  p e t it io n e r 's  testimony 
but determined that Szymankiewicz1s conduct d id  not con­
s t itu te  a m itigating  fa c to r  w ithin the c o u rt 's  con fin ing  
in stru ction s. Speculation that mixed find ings o f fa c t  
and law were not a ffe c te d  by the unconstitu tiona l standard  
under which they were made has never been indulged by th is  
Court, see, e . g . , Rogers v. Richmond, 365 U.S. 534 (1961); 
Shuttlssworth v. Birmingham, 382 U.S. 87 (1965), and is  
p ecu lia r ly  inappropriate  " [ i ]n  death cases [where] doubts 
. . . should be reso lved  in favor o f the accused ." Andres 
v. United S tates, 333 U.S. 740, 752 (1943).

: i

i| ^0/Compare Vernon's Tax. Code Crim. Pro. Ann., A rt. 37.071 (b) ( 
(Supp. 1978); S.C. Code § 15 -3 -20 ( C ) ( b ) (8) (Supp. 1977).

-32 -



A 4
ju s t i f ic a t io n  or extenuation fo r  h is  conduct."—  But that

32/
fa c to r  a lso  is  not enumerated in  the F lo r id a  sta tu te  and 

so could not be considered to weigh in  the ba lance fo r  

p e t it io n e r 's  l i f e .

The Court o f Appeals below  reasoned that since  

p e t it io n e r  had not been precluded from t e s t i fy in g  at t r i a l  

as to Szymankiewicz1s tormenting behavior, Lockett had not 

been v io la te d . 578 F.2d at 621; p. 40a in f r a .  But that 

evidence was o f  l i t t l e  a v a i l  to p e t it io n e r  under a ju ry  

in stru ction  which im perm issibly rendered such testimony 

"re lev an t fo r  m itigatin g  purposes on ly i f  i t  . . . [was] 

determined that i t  . . . [shed] some l ig h t  on one o f  the . . . 

sta tu to ry  m itiga tin g  fa c to r s ,"  Lockett v. Ohio, supra .

57 L.Ed.2d at 992 (p lu r a li t y  opin ion ) . ^ /  Sandra Lockett, 

too, was not precluded from o f fe r in g  anything in  m itiga tion . 

But, as in th is  case, the Ohio sta tu to ry  scheme forbade her 

sentencer to consider her most powerfu l and persuasive  m it i­

ga tin g  evidence as "independently m itigatin g  f a c t o r [ s ] , "  i d . 

at 991, and instead  requ ired  that i t  f i t  p re c is e ly  w ith in  one 

o f  a few sp e c ifie d  standards. To d is t in gu ish  p e t it io n e r 's  

case from hers, o r F lo r id a 's  sta tu te  from O h io 's , upon the 

ground assayed below th ere fo re  abridges Lockett in a fash ion  

that p la in ly  warrants review  by c e r t io r a r i .

31/ American Law In s t itu te . Model Penal Code § 2 1 0 .6 (4 )(d)
(P .O .D . 1962). C f. Harry Roberts v. Lous is  ian a . 431 U.S . 
633, 637 (1977 ).

32/ Compare C a l. Penal Code Ann. §190.3 (e) (Supp. 1978); Ky. 
Rev. S ta t. §532.025 (2) (b) (4) (Supp. 1978); Tenn. Code 
Ann. §39-2404 ( j )  (4) (Supp. 1978).

33/ The Court o f  Appeals i t s e l f  characterized  the F lo r id a  
c a p ita l sentencing process as requ ir in g  the ju ry  to 
consider whether " s u f f ic ie n t  s ta tu to r ily -d e fin e d  m itiratincr 
circumstances e x is t  that outweigh the aggravating circum­
stances," 578 F.2d at 588; p. 7a in fra  (emphasis added),

[Footnote 33/ continues on next p age/

-3 3 -



I .

THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER PETITIONER WAS DE­
PRIVED OF AN ADEQUATE HEARING ON HIS 
CLAIMS THAT FLORIDA'S CAPITAL PUNISH­
MENT STATUTE WAS BEING APPLIED IN AN 
ARBITRARY AND DISCRIMINATORY PATTERN 
IN VIOLATION OF THE EIGHTH AND FOUR­
TEENTH AMENDMENTS 

I

P e t it io n e r 's  fe d e ra l habeas corpus p e t it io n  a lle ged  

jthat the 1972 F lo rid a  death penalty statu te  is  being app lied
j
a r b i t r a r i ly  and in a pattern  which in v id io u s ly  d iscrim inated

f —

again st him on the grounds o f race, sex and economic condi­

tion . The d is t r ic t  court denied any hearing on the claims

jof sexual and economic d iscrim ination  and a ffo rded  an
|
abbreviated  hearing, upon f iv e  days' n o tice , on the a r b i -

!
ijtrariness and r a c ia l  d iscrim ination  claim s. But even the 

evidence presented at th is  hearing was u ltim ate ly  d isregarded  

fo r  purposes o f the decisions o f both courts below.
i

The D is t r ic t  Court dism issed the p e tit io n  on 

the m erits and denied p e t it io n e r  ''ad d it ion a l time [which he 

| requested] to completely present h is  case to the c o u r t ,”

• Order o f September 23, 1977, at R. 161, because i t  con­

cluded that the issue o f a rb it ra r in e s s  was fo rec lo sed  by 

P r o f f i t t  v. F lo r id a , sup ra , i d . at R. 163, and that the r a c ia l  

discrim ination  claim  was le g a l ly  m erit less  inasmuch as i t  d id  

not focus e xc lu s iv e ly  on the race o f the condemned, _id. at

I R. 165. The Court o f Appeals a ffirm ed  on the ground that
j
!jno ev iden tiary  hearing $t a l l  was requ ired  to be held , be­

ll cause p e t it io n e r 's  claims were in s u f f ic ie n t  "as a m atter of 

i law ," 573 F .2d at 590; p. 9a in f r a . I t  reasoned that since
j
jj th is Court had decided in  P r o f f i t t  that F lo r id a  had a
II
ji________________________
i1 Footnote 33 / continuedt! "

and requ irin g  the judge to consider whether there are " in ­
s u f f ic ie n t  s ta tu to r ilv -d e fin e d  miticratincr circumstances 
to outweigh the aggravating circumstances found to e x is t , "  
i b id . (emphasis added ).



j
I

I

"p roperly  drawn statu te  . . . [to ] determ in [e ] which convicted  

defendants rece ive  the death penalty and which rece ive  

l i f e  imprisonment, . . . the a rb it ra r in e s s  and capriciousness  

condemned in Furman have been con c lu sive ly  removed. 11 
578 F.2d at 605; p. 24a in fra  (emphasis added)

I t  thus in terp reted  P r o f f i t t  to preclude any challenge  

to the way in which the death penalty  is  a c tu a lly  being
I

imposed under the F lo r id a  sta tu te .

The issue  is  squarely  presented whether th is

is  indeed what P r o f f i t t  means. We re sp e c t fu lly  submit 

i that i t  is  not, and that the Court o f Appeals ' construction
I
| o f P r o f f i t t  should be corrected  by th is  Court. Such a 

construction denies p e t it io n e r  and th ree -quarte rs  o f the

—- In a footnote to i t s  op in ion , the Court o f  Appeals added 
that, even were p e t it io n e r  e n t it le d  to an ev iden tia ry  
hearing on h is cla im s, i t  would be indisposed to fin d  
that the D is t r ic t  Court had abused i t s  d isc re t io n  in  
denying him a continuance to complete h is fa c tu a l  
presentation . 578 F.2d at 590-591 n . l l ;  pp. 9 a - lo a  n . l l  
in f r a . However, the expression  o f an observation  o f th is  
so rt  in footnote can obviously  not be viewed as unaffected  
by the Court o f Appeals ' d ec is ive  holding that p e t it io n e r  
was e n t it le d  to no ev iden tia ry  hearing o f any kind, or 
as intended to be an independent ground o f d isp o s it io n  o f 
the appeal. And, in  any event, the D is t r ic t  C ou rt 's  
exerc ise  o f i t s  d isc re tion  was squarely  based upon i t s  
own view, subsequently approved by the Court o f Appeals, 
that p e t it io n e r  was not e n t it le d  to prove h is case fa c tu a lly  
because i t  was le g a l ly  lack ing in m erit. Order o f 
September 23, 1977, a t  R. 161-165.

i .

jj — ^"The a lle g a t io n  that F lo r id a 's  death penalty is  being
d isc r im in a to rily  app lied  to defendants who murder whites 
is  nothing more than an a lle g a t io n  that the death penalty  
is  being imposed a r b i t r a r i ly  and c a p r ic io u s ly , a contention  
we prev iously  have considered and re je c te d ."  578 F.2d at 
613; p. 32a in f r a . The court d id  not com pletely fo rec lo se  
fe d e ra l habeas corpus in terven tion  on beh a lf o f a condemned 
p e tit io n e r  cha llenging  the procedures under which he was 
sentenced to d ie , but i t  requ ired  such a p e t it io n e r  to 
"show that the fac ts  and circumstances o f h is  case are so 
c le a r ly  undeserving o f c a p ita l punishment that to impose i t  
would be patently  un just and would shock the conscience," 57 
F. 2d a t  606 r..2S; p. 25a n.23 in f r a . In th is  extraord inary  
s itu a tio n , r e l i e f  "might be w arran ted ." I b id . See a lso  573

I: F.2d at 614 n.40; o. 33a n.40 in fra .|! * ---------
H -3 5 -



I

Death Row prisoners in th is  country the r igh ts  preserved  

by severa l ind ispensable  c o n stitu tio n a l p r in c ip le s .

F i r s t . the d e c is io n  ign o res  the d i f f e r e n c e  between  

an attack  on- the f a c i a l  c o n s t i t u t io n a l i t y  o f  a s ta tu te  and a

j challenge to the way in which the statu te  is  adm inistered.
I
I This is  an o ld  and fundamental d is t in c t io n . In Yick Wo 

j  v. Hopkins, 118 U.S. 356 (1886), n early  a century ago, th is  

Court confirmed the- a v a i la b i l i t y  o f habeas corpus r e l i e f  on 

the ground o f d iscrim inatory  enforcement o f a f a c ia l ly  v a lid  

s ta tu te :

" . . .  Though the law i t s e l f  be f a i r  on 
i t s  face and im partia l in appearance, yet, 
i f  i t  is  app lied  and adm inistered by pub lic  
authority  with an e v i l  eye and an unequal 
hand,, so as p ra c t ic a l ly  to make un just and 
i l l e g a l  d iscrim inations between persons in  
s im ila r  circum stances, m ateria l to th e ir  
r ig h ts , the d en ia l o f equal ju s t ic e  is  s t i l l  
within the p roh ib it ion  o f the C on stitu tion ."

118 U.S. a t  373-74. See Guinn v. United S ta te s , 238 U.S.

347 (1915); N o rris  v. Alabama, 294 U.S. 587 (1935); Lane

v. W ilson , 307 U.S. 268 (1939); Wright v. G eo rg ia , 373 U.S.

284 (1963); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969);

Turner v. Fouche, 396 U.S. 346 (1970); A lle e  v. Medrano,

416 U.S. 802 (1974).

The court below acknowledged tiiat the "Court in 

; P r o f f i t t  ind icated  that i t s  concern was wi-th the co n stitu -  

, t io n a lity  o f the [F lo r id a ] statu te  on i t s  fa c e ,"  578 F.2d at  

jj 601; p. 20a in f r a , but then read "on i t s  face" to mean that
I
ij th is  Court had held that the statu te  "conc lu sive ly  removes

i the a rb it ra r in e s s  and capric iousness . . . held  v io la t iv e  o f
ii 
Ij
j the Eighth and Fourteenth Amendmen-s,"  578 F.2d at 604; p. 23a

-3 6 -



in f r a . Such an in te rp re ta tion  se r io u s ly  misconceives 

the C ou rt 's  1976 c a p ita l punishment d e c is io n s .— ^ Those 

cases d id  not fo rec lo se  (as they could not, w ithout over­

ru lin g  Tick Wo and a century o f co n stitu tio n a l j u r i s ­

prudence) a death sentenced p r is o n e r 's  r ig h t  to prove that the 

adm inistration  o f the Georgia, F lo r id a  or Texas statu tes  

in th e ir  actua l operation  and ap p lica t io n  to h is  case f lo u t

|constitu tiona l p ro h ib it io n s  aga in st a rb it ra ry  and d iscrim inatory  

c a p ita l sentencing.— ^ See Gardner v. F lo r id a , 430 U.S. 349,

361 (1977) (p lu r a li t y  o p in io n ). Indeed, i t  would be d i f f i c u l t  

to, reconc ile  G regg, P r o f f i t t  and Jurek with Furman (whose 

v i t a l i t y  they rea ffirm , 428 U.S. a t  195-196 n n .46,47) except 

upon the assumption that th is Court in the la t e r  cases intended  

the various safeguards o f the new p o s t -Furman death penalty
i
|laws to have some p ra c t ic a l e f fe c t ,  and not simply to "paper

! over" what Furman had condemned. Woodson v. North C aro lin a ,
|
!428 U .S. 280, 302 (1976 )(p lu r a l i t y  op in ion ).
III

Second, the dec ision  below drains Furman o f a l l  

meaning. Notwithstanding the p a r t ia l ly  d ivergent views ex­

pressed by the m ajority  Justices in that case, Furman 

contains a v i t a l  least-common denominator, expressed in the 1

1 g/
—  I t  was there fore  deemed dec is iv e  that " [t ]h e  F lo r id a  statute  

held con stitu tion a l in P r o f f i t t  v. F lo r id a , sup ra , was 
Section 921.141, the id e n t ic a l statu te  the p e t it io n e r  
challenges in the case at hand," 578 F.2d a t  601; p. 20a 
in f r a .

^ T h e  court below was not alone in fe e lin g  i t s e l f  constrained  
by P r o f f i t t  to d isregard  evidence o f the a rb it ra r in e s s  
with which the death penalty is  a c tu a lly  app lied  in  
F lo rid a . Concurring in the F lo r id a  Supreme C ourt 's  
den ia l o f post-conv iction  r e l i e f  to p e t it io n e r , Mr. Jus­
t ice  Hatchett remarked:

" I t  is  apparent to me that the death penalty

[Footnote 37/ continues on next page.

-3 7 -



I
: fo llow in g  two form ulations:
| i

" . . .  [T ]he Eighth and Fourteenth  
Amendments cannot to le ra te  the in f l ic t io n  
o f a sentence o f death under le g a l systems 
that permit th is unique penalty  to be . . . 
wantonly and . . . fre ak ish ly  im posed."

Id . a t 310 (concurring opinion o f Mr. Justice  S tew a rt ).

" . . .  [The Eighth and Fourteenth  
Amendments are v io la te d  i f ]  the death 
penalty i s  exacted with g rea t infrequency  
even fo r  the most atrocious crimes and . . .

i there is  no meaningful ba s is  fo r  d is t in gu ish ­
ing the few cases in  which i t  is  imposed from 
the many cases in which i t  is  n o t ."

Id . at 313 (concurring opinion o f Mr. Justice  W h ite ).
I
I Furman there fore  stands fo r  the p roposition  that the a rb it ra ry
li

and capric ious app lica tion  o f the death penalty v io la te s  the

Eighth and Fourteenth Amendments.

The p re v a ilin g  opinions in  Gregg v. G eorg ia ,

428 U.S. 153 (1976), e x p l ic i t ly  re a sse rt  that " [ t ]h e  bas ic
i
jj concern o f Furman centered on those defendants who were being

38/
I condemned to death cap ric io u s ly  and a r b i t r a r i l y , " —  and that
i ■'1
| "Furman1s bas ic  requirement" o f re g u la r ity  in the c a p ita l

Footnote 37/ continued

under the F lo r id a  statu tory  scheme is  being  
administered in an a rb it ra ry  and capric ious  
manner inconsisten t with the premises under­
ly in g  Furman v. G eorg ia , 408 U .S. 233 (1972), 
State v. Dixon, supra, and P r o f f i t t  v. F lo r id a ,  
supra. But th is  issue was apparently fo re ­
closed by the United States Supreme Court in i t s  
decision  in P r o f f i t t . "

350 So. 2d at 88; p. 4d in f r a .
38/
—  Gregg v. G eorgia , supra , 428 U.S. at 

Justice Stewart, Mr. Justice  Pow ell, 
see a lso  id . at 222, 224 (opinion o f 
by the Ch ief Justice and Mr. Jusrice

206 (opinion o f Mr. 
and Mr. Justice Stevens); 
Mr. Justice White, jo ined  
R ehnqu ist).



a su b stan tia lsentencing process—  was designed to avert " 

r i s k " ^ /  that uncontro lled  procedures would re su lt  in ju r ie s  

acting  "wantonly and fre ak ish ly  [to ] impose the death sen­

tence. There is  no con stitu tion a l lo g ic  that could

fo rb id  a procedure because o f  i t s  propensity to produce a 

p a r t ic u la r  r e su lt , unless the re su lt  i t s e l f  is  forbidden  

by the Constitu tion . And i f  the re s u lt  o f a rb it ra ry  and 

discrim inatory  in f l ic t io n  o f the death penalty is  forbidden  

by the Eighth and Fourteenth Amendments —  as Furman, G regg, 

P r o f f i t t  and Jurek a l l  declare  —  then there can be no lo g ic  a t  

a l l  in denying p e t it io n e r  the opportunity to prove that th is  

re su lt  is  occurring in  F lo r id a  and occurred in h is  case.

The existence o f the statu tory  procedures which th is  Court
42/

sustained " [o ]n  th e ir  face" in P r o f f i t t —  cannot support 

such a d en ia l, fo r  as Mr. Justice White succ inctly  observed  

in Furman:

" . . .  [ 1 ] e g is la t iv e  'p o lic y ' is  . . .
n ece ssa rily  defined  not by what is  le g i s la t iv e ly  
authorized but by what ju r ie s  and judges do in 
exerc is in g  the d isc re t io n  . . . con ferred
upon them."

Furman v . G eorg ia , supra , 408 U.S. at 314 (concurring op in ion ).

— ^Woodson v. North C a ro lin a , 428 U.S. 280, 303 (1976 )(opinion  
of Mr. Justice Stewart, Mr. Justice  Pow ell, and Mr. Justice  
S teven s ).

— ^See Gregg v. G eorg ia , supra , 428 U.S. at 138 (opinion o f 
Mr. Justice Stewart, Mr. Justice  Pow ell, and Mr. Justice  
S teven s ).

— '■ Gregg v. G eorg ia , supra, 423 U.S. at 207 (opinion o f Mr. 
Justice Stewart, Mr. Justice  Pow ell, and Mr. Justice  
Stevens). See a lso  id . at 195.

42 /
— P r o f f i t t  v. F lo r id a , supra, 428 U.S. at 251 (opinion o f  

ilr. Justice Stewart, Mr. Justice Pow ell, and Mr.
Juspice Stevens>. See a lso  m * an >̂53.

-3 9 -



Third, the court below held that in order to

prove r a c ia l  d iscrim ination  e n t it l in g  him to r e l i e f ,  p e t i ­

t ioner would have to show a r a c ia l ly  d iscrim inatory  in tent

| or purpose, as requ ired  in other areas by th is C ou rt 's  

decisions in Washington v. D av is , 426 U .S. 229 (1976) , and 

V illa g e  o f  A rlington  Heights v. M etropolitan Housing Develop­

ment C o rp ., 429 U.S. 252 (1977). 578 F.2d at 615; p. 34a in fra .
i1 The court " [a ]ssum [ed] fo r  the sake o f d iscussion  that
!
j  Section 921.141 does have a r a c ia l ly  d isp roportionate  impact
i |
jw ith  respect to the race o f  f i r s t  degree murder v ic t im s ,"  but

I held  that p e t it io n e r  had not shown the requ ired  "in ten tio n a l
j l

o r purposefu l d isc r im in a t io n .” I b id . This apparently means 

that a sub jective  r a c ia l  animus must be shown by proof d irected  

to sentencing ju r ie s ' o r judges ' s ta tes  o f mind, because 

p e t it io n e r  p la in ly  a lle g ed  that r a c ia l  b ias  was exh ib ited  by 

the pattern  o f death sentences a c tu a lly  meted out by the

j  F lo rid a  courts under the S ta te 's  1972 law, P e t it io n , 'I 12 (J) ,

R .33-34, and the Court o f Appeals held  that he was not en-
I
j t i t le d  to a hearing on th is  o r any other claim , 578 F.2d atj

; 590; p. 9a in fra . See pp. 19 -  20 supra .
j

Surely , any such requirement —  that a man condemned 

to d ie  pursuant to a death sentencing pattern  based on race 

must a lso  demonstrate the r a c ia l  m otivation underlying theI
• I
j pattern  in  o rder to p re v a il upon a claim  that h is l i f e  is
! I
i j  being taken uncon stitu tion a lly  —  derogates bas ic  p r in c ip le s
II
| j
|| that have o rev iously  informed th is  C ou rt 's  decisions
!
II invo lv ing r a c ia l  issues in  death cases. See, e . g . ,  Averv
I —  -------

j I
j l  v. Georgia, 345 U.S. 559 (1953) ; Coleman v. Alabama, 389 U.S.



22 (1967) Indeed, n e ith er Washington v. Davis nor

A rlington  Heights requ ires  such a demonstration even in a 

n on -cap ita l case. The ru le  that r a c ia l ly  d i f f e r e n t ia l  

impact alone does not constitu te  d iscrim ination

^ / p e t i t io n e r 's  submission below (a lte rn a t iv e ly  to the argument 
that the D is t r ic t  Court had im properly denied him the con­
tinuance necessary to prepare and present h is  case on d is ­
crim ination com pletely) was that he had e stab lish ed  a prima 
fa c ie  case o f r a c ia l  d iscrim ination  w ith in  the p r in c ip le  that 
" [o lnca a prima fa c ie  case o f in v id ious d iscrim ination  is  
estab lish ed , the burden o f p roof s h ift s  to the State to 
rebut the presumption o f unconstitu tiona l a c t io n ." Alexander 
v. Lou is ian a , 405 U.S. 625, 631-632 (1972). See a lso  Turner 
v. Fouche, 396 U .S. 346;, 361 (1970) . P e t it io n e r  proved that, 
although the numbers o f homicides committed aga in st whites 
and blacks in  the State o f F lo r id a  are v i r t u a l ly  id e n t ic a l,
104 o f the 113 persons on F lo r id a 's  Death Row had been 
sentenced to d ie fo r  k i l l in g  w hites. See pp. 4 f -  5f in f r a . 
Even when consideration  is  lim ited  to felony-m urder cases, 
a four-to -one* d isp a r ity  in death sentencing o f persons who 
had k i l le d  white v ictim s, as compared to persons who had k i l le d  
black  v ictim s, remains. See pp. 8f -  I l f .  In view o f the 
ultim ate ground o f  decision  by the F ifth  C irc u it ,  i t  is  
unnecessary fo r  th is  Court to consider whether these figu re s  
and the other evidence summarized in  Appendix F in fra  do 
e s ta b lish  a prima fa c ie  case. I t  is  s u f f ic ie n t  fo r  re v e rsa l  
i f ,  as the Court o f Appeals denied, p e t it io n e r  could have 
proved h is case by the method which he undertook, without 
seeking in  add ition  to prove r a c ia l  animus d ir e c t ly . How­
ever, we may note that, in  fin d in g  that "F lo r id a  o ffe re d  
c red ib le  evidence, ev iden tly  b e lie v ed  by the d is t r ic t  court" 
to exp la in  the r a c ia l  d isp a r ity  demonstrated by p e t it io n e r ,
573 F .2d a t  615; p. 34a in f r a , the Court o f  the F ifth  
C irc u it  simply m isread the record. The d is t r i c t  court made 
no fin d in g  a t  a l l  on the S ta te 's  evidence; in stead  i t  con­
cluded as a matter o f law that the "focus o f any inqu iry  
into the ap p lica tion  o f the death penalty must n ece ssa rily  
be lim ited  to the persons who rece ive  i t  ra th er than th e ir  
v ic t im s .” R. 165.

-4 1 -



I

" .  . . i s  not to say that the necessary  
! d iscrim inatory  r a c ia l  purpose must be ex­

press o r appear on the face o f the sta tu te , 
or that a la w 's  d isp roportionate  impact is  
ir re le v a n t . . . .  A s ta tu te , otherw ise  
neutra l on i t s  face , must not be app lied  so as 
in v id io u s ly  to d iscrim inate  on the b a s is  o f  
race . Yick Wo v . Hopkins, 118 U .S . 356 (1886 )."

j  Washington v . D av is , supra , 426 U .S . a t 241. See, e .c r.,

Castaneda v . P a rtid a , 430 U .S . 482 (1977).

In any event, p e t it io n e r  has challenged the adm in istra­

t ion  o f F lo r id a 's  p o s t -Furman sta tu to ry  scheme not on ly on Equal 

Protection  grounds, but a lso  on the grounds that i t  is  being

| app lied  a r b i t r a r i ly  in  v io la t io n  o f the Eighth Amendment and
M /

Due Process. His showing o f  gross ra c e -o f-v ic t im  d ip a r it ie s

goes to both claim s. For the la t t e r  purposes, at le a s t ,  th is
j

Court has recognized that the death penalty  is  q u a lit a t iv e ly

I d if fe r e n t  from other crim inal punishments and involves a
j
i "corresponding d iffe ren ce  in the need fo r  r e l i a b i l i t y  in  the
i
I
| determ ination that death is  the appropriate  punishment" in a

! p a r t ic u la r  case . Woodson v . Worth C a ro lin a , 423 U .S ‘,1 280, 305
I
I (1976) (opinion o f Mr. Justice  Stewart, Mr. Justice  Pow ell and
I

Mr. Justice  S tevens). See a lso  Gardner v . F lo r id a , 430 U .S . 349, 

357-358 (1977) (p lu r a li t y  o p in io n ); id . at 363 (opinion o f Mr.

Justice  W h ite ); Lockett v . Ohio, ____ U .S .____ , 57 L .Ed. 2d

973, 989 (1978) (p lu r a l i t y  o p in io n ). But the death penalty  can
I
I hard ly  be "ap p rop ria te ," and the dec isions to i n f l i c t  i t  can

II c e rta in ly  not be accepted as " r e l i a b le , "  i f  i t  is  being used
i  i
I
j j  along s ta rk ly  r a c ia l  l in e s .  In th is  context, the standard
i!
! I I
|| 44/ The Court o f Appeals, a f t e r  fa u lt in g  p e t it io n e r 's  Equal

P rotection  claim  fo r  fa i lu r e  to focus upon "seme sp e c if ic  
act o r  acts evidencing in ten tion a l o r purposefu l r a c ia l  
discrim ination  against him," 578 F.2d at 614 n.40; p.33a  
n. 40 in f r a , based upon it s  reading o f  Washington v . Davis 
and V illacre o f A rlin gton  H eigh ts, th e re a fte r  disposed o f 
p e t it io n e r 's  Eighth Amendment and Due Process claims on 
s im ila r  errounds without any indeoendent a n a iv s is .

!: ' -4 2 -



to provide the scru tin y  demanded o f  procedures fo r  d ispensing  

l i f e  and death. C f . Gardner v . F lo r id a , supra.

F in a l ly , the dec is ion  below  im properly d isa llo w s  con­

s id e ra t io n  o f the race o f  murder victim s as an in d ica to r  o f  

whether the death penalty  fo r  murder is  be ing con stitu tion ­

a l l y  ap p lied . Here again , both p e t it io n e r1s Equal P ro tection  

claim  and h is Eighth Amendment claim s o f a rb it ra r in e s s  and 

excessiveness are im plicated ; fo r ,  whatever the th e o re t ic a l  

ju s t i f ic a t io n s  o f  c a p ita l punishment may be, i t s  ac tua l use 

to punish not the d e lib e ra te  tak ing o f  human l i f e  but the 

tak ing o f  white human l i f e  as contrasted  w ith b lack  human l i f e  

presents a very d i f fe r e n t  Eighth Amendment issu e . P e t it io n e r  

a lle g e d  and sought the opportunity to prove that the F lo r id a  

death sentencing system in i t s  p ra c t ic a l operation  reserves the 

extreme punishment almost e x c lu s iv e ly  fo r  defendants convicted  

o f  k i l l i n g  w hites, and that i t s  p e rs is te n t  va lu a tion  o f white 

l i f e  over b lack  l i f e  resu lted  in  h is  being sentenced to d ie  fo r  

a crime that would not have incurred the death penalty  i f  

Joseph Szymankiewicz had been b la ck .

The courts below  he ld , however, that the system atic  

use o f a death penalty  sta tu te  to v i s i t  c a p ita l punishment 

upon k i l l e r s  o f  whites in  cases where k i l l e r s  o f  b lacks

would never rece ive  i t  cannot be shown to support e ith e r  an
45/

Equal P rotection  or an Eighth Amendment v io la t io n . These

4.5/ The Court o f Appeals concluded that p e t it io n e r 's  Equal
P rotection  claim  based upon a pattern  o f c a p ita l sentences 
dispensed according to the race o f the v ictim  was "m erit -

[Footnote 45/ continues on next page .]

app lied  below  fo r  p roo f o f r a c ia l  d iscrim ination  is  p e c u lia r ly

im provident: i t  is  unsupported by au thority  and inadequate

-42 -



I

j dec isions reso lve  issues that th is  Court has never considered—  

reason enough, we re sp e c t fu lly  suggest, fo r  c e r t io r a r i ,  since  

the issues are momentous both in t r in s ic a l ly  and because o f
M /

the number o f  human liv e s  which turn upon them. But in

add ition , the decisions appear p la in ly  to f l y  in  the teeth  o f
!
j the h is t o r ic a l  purposes o f  the Equal P ro tection  Clause and o f  

the va lues which h is to ry  requ ires  to be considered in applying  

the C ruel and Unusual Punishments Clause to a penalty  so

severe that the en tire  ju d ic ia l  machinery o f  a State w i l l  

! o rd in a r i ly  to le ra te  i t s  in f l ic t io n  on ly in  the case o f  crimes

| aga in st the dominant race . The Framers o f  the Fourteenth
j
I Amendment ind isputab ly  meant to outlaw  adm in istrations o f

j crim inal ju s t ic e  which punished crimes aga in st whites by  

| p en a lt ie s  that were not employed-to punish s im ila r  crimes
I
j  aga in st  b lack s , and they meant to do so whether th is  so rt  o f
j1
ji d en ia l o f  the equal p ro tection  o f the crim inal laws was

ji Footnote 45/ continued
j

le ss " as "a  matter o f law ," 578 F.2d at 616? p. 35a in f r a , 
since only in  a case presenting "some sp e c if ic  act or acts 
evidencing in ten tion a l o r purposefu l r a c ia l  d iscrim ination  
aga in st him . . . , e ith e r  because o f  h is  own race o r the 
race o f  h is  victim " can a habeas p e t it io n e r  invoke the ben­
e f i t  o f  the Equal P ro tection  C lause. 578 F.2d at 614 n.40; 
p. 33a n.40 in f r a . P e t it io n e r 's  Eighth Amendment claim  was 
s im ila r ly  d ispatched. I b id . The re s u lt  was to a ffirm  the 
holding o f  the D is t r ic t  Court that "the focus o f  any inqu iry  
into the app lica tion  o f  the death penalty  must n ece ssa rily  
be lim ited  to the persons who rece ive  i t  rather than th e ir  
v ic tim s," R. 165, because p roo f o f  "a  s p e c if ic  act o r acts" 
o f in ten tion a l d iscrim ination  based upon the race o f  an in d i­
v idu a l v ictim  in is o la t io n  from the c a p ita l sentencing patterns  
in w h ite -v ictim  and b lack -v ic tim  cases g en e ra lly  is  inconceiv - 

ii a b le .
II « /

P e t it io n e r 's  expert w itness Dr. W illiam  J. Bowers t e s t i f i e d  
in the D is t r ic t  Court that ra c e -o f-v ic t im  s t a t is t ic s  fo r  
Georgia and Texas—  both in the F ifth  C irc u it  —  are  
s im ila r  to those fo r  F lo r id a . T. 153.

I

I



d iscrim inatory  p rac tices  in  the ap p lica tion  o f f a c ia l ly  c o lo r -  
47 /b lin d  s ta tu te s .— • The la t t e r  was what p e t it io n e r  asserted

here; h is a sse rtion s cannot f a i r l y  be characterized  as " [m ]ere  

conclusory a l le g a t io n s ,” 578 F.2d at 614 n .40; p. 33a n.40 in ­

f r a ,  in view  o f the stip u la ted  fa c t  that 104 out o f 113 persons on 

F lo r id a 's  Death Row were put there fo r  k i l l in g  white people; 

and the holdings below that he was not e n t it le d  to proceed 

fu rth e r w ith p roo f along these lin e s  su re ly  ought to be reviewed  

by th is  Court be fore  h is  execution is  ca rried  out.

a ffe c ted  by r a c ia l ly  d iscrim inatory  statu tes or by r a c ia l ly

I I I .

THE COURT SHOULD GRANT CERTIORARI 
TO DETERMINE WHETHER THE COURTS 
BELOW ERRED IN REJECTING WITHOUT 
A HEARING THE SELFSAME CLAIM ON 
WHICH WITHERSPOON v. ILLINOIS 
SAID THAT A CAPITALLY CONVICTED 
DEFENDANT IS ENTITLED TO A 

HEARING

In Witherspoon v. I l l i n o i s , 391 U.S. 510 (1968), 

th is  Court re fused  to ru le  w ithout an adequate ev iden tiary  

record that a "d e a th -q u a lif ie d "  ju ry  was "n ece ssa rily  . . . 

biased  in favo r o f  conviction" or would "too re a d ily  ignore  

the presumption o f the defendant's  innocence, accept the 

prosecu tion 's  version  o f the fa c ts , and return a ve rd ic t  o f 

g u i l t , "  at 516-517. The Court found e x p l ic i t ly  that:

" . . .  [ t ]h e  data  adduced-by . . . [W i­
therspoon ] are  too t e n ta t iv e  and fragm entary  
to e s t a b l i s h  that  ju ro r s  not opposed to the 
death p ena lty  tend to fa v o r  the p rosecu tion  
in  the determ ination  o f  g u i l t .  We simply  
cannot conclude, e i t h e r  on the b a s is  o f  the 
record  now be fo re  us o r  as a matter o f  j u d i c i a l  
n o t ic e ,  th a t  the exc lu s ion  o f  ju ro r s  opposed to

— Documentation o f these points would extend th is a lready  
n ecessa rily  lengthy c e r t io r a r i  p e t it io n  unduly. We 
there fore  provide a summary o f the re levan t h is t o r ic a l  
m ateria ls in Appendix G, pp . ig  -  7 g in fra .

-4 5 -



c a p ita l punishment re su lts  in an unrepre­
sentative  ju ry  on the issue o f  g u i l t  or sub­
s t a n t ia l ly  increases the r isk  o f con v ic tion ."

I d . at 517-518 (footnote om itted ).

This fin d in g  was requ ired  " [ i ]n  l ig h t  o f the pre­

sen tly  a v a ila b le  in form ation ," id . at 518, because counsel fo r  

Witherspoon had not "sought an 'opportun ity  to submit evidence' 

in the t r i a l  court, icL at 517 n . l l ;  and h is re lian ce  so le ly  

on two unpublished manuscripts l e f t  the Court- to "specu late  

. . .  as to the p rec ise  meaning o f  the terms used in those 

stud ies , the accuracy o f  the techniques employed, and the 

v a lid it y  o f the gen era liza tion s  made," i b i d . The Court 

in d ica ted , however, th a t :

" . . . a  defendant convicted by such a 
ju ry  [ i . e .  , one se lected  according to the 
standards announced in  W itherspoon] in some 
future case might- s t i l l  attempt to e s ta b lish  
that the ju ry  was le ss  than neutra l with  
respect to g u i l t . I f  he were to succeed in 
that e f fo r t ,  the question would then a r is e  
whether the S ta te 's  in te re s t  in subm itting  
the penalty issue to a ju ry  capable o f  
imposing c a p ita l punishment may be v ind icated  
at the expense o f the defendant's  in te re s t  
in a completely f a i r  determ ination o f g u i lt  
or innocence— given the p o s s ib i l i t y  o f  
accommodating both in te re sts  by means o f 
a b ifu rca ted  t r i a l ,  using one ju ry  to decide  
g u i lt  and another to f i x  punishment. That 
problem is  not presented h e re , . . . and we 
intim ate no view as to i t s  proper re so lu t io n ."

48/Id . at 520 n.18 (emphasis in o r ig in a l)  .

48/— And see i d . at 541 n . l  (d issen tin g  opinion o f Mr.
Justice  W h ite ):

" I  would not wholly fo rec lo se  the 
p o s s ib i l i t y  o f  a showing that ce rta in  re ­
s t r ic t io n s  on ju ry  membership imposed because 
o f ju ry  p a rt ic ip a t io n  in penalty  determ ination  
produce a ju ry  which is  not co n st itu t io n a lly  
constitu ted  fo r  the purpose o f determining 
g u i l t . "

-46 -



In the decade since W itherspoon, considerab le  good 

em pirica l research  has been published in th is  a rea , and has 

con sisten tly  found that d e a th -q u a lif ie d  ju r ie s  are both 

conviction -prone and unrepresentative o f the community in  

the same dimensions as (a lb e it  in g rea te r  measure than) the 

fiv e -p e rson  ju r ie s  which th is  Court subsequently condemned 

in  Ballew  v. G eo rg ia , 435 U .S. 223 (1978). 42/ P e t it io n e r  

accordingly  a lle g ed  below that the exclusion  o f two prospective  

ju ro rs  fo r  cause so le ly  on account o f  th e ir  conscientious  

scrup les aga in st c a p ita l punishment —  and although these 

prospective ju ro rs  "made i t  unmistakably c le a r  that th e ir  

a ttitu des  toward the death penalty  would not prevent them 

from making an im partia l dec is ion  as to p e t it io n e r 's  g u i l t " — / 

—  "subjected  p e t it io n e r  to t r i a l  by a ju ry  which was not 

im partia l in fa c t  but was b iased  in favor o f  [the ] prosecution  

on the issues o f P e t it io n e r 's  g u i l t  and o f the degree o f the

49 /— H. ZEISEL, SOME DATA ON JUROR ATTITUDES TOWARD CAPITAL 
PUNISHMENT (Center fo r  Studies in  Crim inal Ju stice , 
U n iversity  o f  Chicago Law School, 1968) [a truncated  
summary o f th is  study was presented to the Court in  
Witherspoon, see i d . at 25 ]; Boehm, Mr. P re ju d ice , Miss 
Sympathy, and the A uthoritarian  P e rson a lity : An A pp lication  
of Psychological Measuring Techniques to the Problem or 
Jury B ia s , 1968 WISC. L. REV. 7 34;" Bronson, On the Con- 
viction -Proneness and Representativeness o f the Death- 
Q u a lified  Jury: An Em pirical Study o f Colorado Veniremen,
42 U. COLO. Li REV. 1* (1970); G o ldberg , Toward Expansion 
o f Witherspoon: C ap ita l Scrup les, Jury B ias , and Use o f 
Psychological Data to Raise Presumptions in the Law,
5 HARV. CIVIL RIGHTS-CIVIL LIBERTIES L. REV. 53 (1970)
[aga in , the published version  o f  th is  study r e f le c t s  ad­
d it io n a l m ateria l that was not in , and other changes from, 
the unpublished version  presented to the Court in 
Witherspoon, see id . at 57 ]; Jurow, New Data on the E ffe c t  
o f a "Death Q u a lified  Jury" on the G u ilt  De-cermination 
Process, 84 HARV. L. REV. 567 (1971). The c ited  pub- 
l ic a t io n s  are not exhaustive o f the l i t e r a tu r e  in the f i e ld ,  
and there is  a lso  consisten t data a v a ila b le  from unpublished  
stud ies . We do not, o f course, advance these c ita t io n s  fo r  
ju d ic ia l  notice , but simply to ind icate  some o f the so rts  o f  
research upon which expert w itnesses fo r  p e t it io n e r  might 
have drawn a t a proper ev iden tia ry  hearing.

— ^P etit ion , «,[ 12(A) , as amended, R. 142 .

-4 7 -

II



crime with which he was ch arged ,"— ^ and a lso  v io la te d

p e t it io n e r 's  r ig h t  to " t r i a l  by a ju ry  se lected  from a

52/represen tative  c ro ss -sec tion  o f the community. . . —

P e tit io n e r  requested an ev iden tia ry  hearing on these 

a l le g a t io n s ,^ /  but the D is t r ic t  Court re fused  i t  by 

lim itin g  i t s  September 21, 1977 hearing to two other is su e s , 

see pp. 15-18 supra. Thus, although P ro fesso r Hans Z e is e l,  

one o f the country 's  foremost au th o rit ie s  on d ea th -q u a lif ie d  

jury research , t e s t i f ie d  fo r  p e t it io n e r  on those other issu es , 

his testimony upon the issue reserved by Witherspoon could not 

be presented.

The Court o f  Appeals a ffirm ed  the D is t r ic t  C ourt 's  

decision  o f th is issue  adverse ly  to p e t it io n e r  without a 

hearing, despite i t s  acknowledgment o f p e t it io n e r 's  submission  

that a t  "an ad d it ion a l ev iden tia ry  hearing, he w i l l  develop a 

more complete record than the one be fo re  the Supreme Court 

in Witherspoon and prove the contention" which Witherspoon 

reserved fo r  decision  upon such a record. 578 F.2d a t  59 3 ; 

p. 12a in f r a . P e t it io n e r 's  contention was held  to be "w ithout 

m erit" as a mat-car o f law, 578 F.2d at 596 ; p. 15a in f r a , 

p rim arily  in  re lian ce  upon seve ra l p re -Witherspoon decisions  

by fed e ra l courts o f appeals, 578 F.2d a t  594-595; pp. 13a -  

14a in f r a . For purposes o f i t s  dec is ion , the Court o f Appeals 

assumed the fa c tu a l v a lid ity  o f the p roposition  "th at a

51 /—- P e t it io n , 1[ 12(A) (v) , as amended, R. 145 .

5° /—  P e t it io n , <|12(A )(ii) and ( i i i )  , as amended, R. 144. 

— / p etit io n , Prayer (3) , R. 35.

-43 -



*

d e a th -q u a lif ie d  ju ry  is  more l ik e ly  to convict than a non­

d e a th -q u a lif ie d  ju ry ,"  578 F.2d a t  593-594; pp. 12a -  13a 

in f r a ; i t  assumed that death -scrup led  ju ro rs  "con stitu te  a 

'd is t in c t iv e  c l a s s , ' "  578 F.2d a t  597; p. 16a in f r a ; -and i t  

conceded that the two veniremen excluded fo r  scrup les at  

p e t it io n e r 's  t r i a l  "s ta ted  unambiguously that they could  

f a i r ly  judge Spenkelink 's g u i l t  o r innocence," 578 F.2d at 

592; .p. 11a in f r a .

The question could not be more b a ld ly  presented whether 

a man may properly  be executed with a s ig n if ic a n t  con stitu ­

t io n a l issue inadequately reso lved  in  h is case. This Court 

in  Witherspoon reserved decision  o f that issue and sa id  that 

someone in  p e t it io n e r 's  position  was e n t it le d  to an ev iden tia ry  

hearing to prove the fac ts  on which i t  re s ts . P e t it io n e r  was 

refused  such a hearing, and the issu e  was decided aga in st him

cn the bas is  o f p re -Witherspoon case law and reasoning which,

5 4/whatever i t s  q u a l i t y ,—  has never been endorsed or even

The Court o f Appeals misunderstood p e t it io n e r  to contend that 
he was e n t it le d  to "a defendant-prone ju ry ,"  578 F.2a at  
596; p. 15a in f r a :

" . . .  That a d e a th -q u a lif ie d  ju ry  is  
more l ik e ly  to convict than a nondeath- 
q u a li f ie d  ju ry  does not demonstrate which- 
ju ry  is  im p art ia l. I t  ind icates only that, 
a d e a th -q u a lif ie d  ju ry  might favor the 
prosecution and that a n ondeath -qua lified  
ju ry  might favor the defendant."

578 F.2d a t  594; p. 13a in f r a .

With a l l  respect, th is  supposed ep istem ologica l 
problem is  a fa ls e  one. The question  "which ju ry  is  
im partia l" is  not to be determined by reference to some ab­
s tra c t  and unknowable standard, but by the standard c f  
the ordinary ju r ie s  that decide ord inary crim inal cases.

[Footnote 54/ continues on next page .]

-49 -



%

considered, by th is Court. 3y the time another c a p ita lly  

convicted person in another C ircu it  is  given the kind o f

Footnote 54/ continued

These ju r ie s  are se lec ted  to s i t  in  n on -cap ita l t r i a ls  
(b e tte r  than 99% o f crim inal t r i a l s ) ; they are repre­
sen tative  o f a c ro ss -sec tion  o f the community; they 
are not d e a th -q u a lif ie d ; and the suggestion that they 
are there fore  "defendant-prone" is  in con ce ivab le . 
P e t it io n e r 's  contention is  that, by comparison with  
th is so rt  o f  ju ry , a  d e a th -q u a lif ie d  ju ry  is  unduly 
li 'h e ly  to convict —  whether the charge is  c a p ita l  
or n on -cap ita l, and not because o f some nondeath- 
q u a li f ie d  ju ro rs ' a tt itu d es  toward the death penalty  
(which the excluded veniremen in  p e t it io n e r 's  case 
swore would not a f fe c t  th e ir  g u i l t  d e lib e ra t io n s ),  but 
because o f other s ig n if ic a n t  a t t itu d in a l d iffe ren ces  
between d e a th -q u a lifie d  and non death -qua lified  ju r ie s ,  
re su lt in g  (as th is Court properly  understood the 
argument in W itherspoon) in d i f fe r e n t  thresholds o f  
reasonable doubt, see 391 U.S. at 516-517.

Having m is id en tified  the is su e , the Court of 
Appeals next proceeded to decide "which ju ry  is  im partia l 
by the fo llow in g  reasoning: On the one hand,

" . . .  a reading o f the tran sc rip t  o f 
the v o ir  d ire  examination [in  p e t it io n e r 's  
case] demonstrates that those veniremen who 
were chosen to be ju ro rs  in  no way ind icated  
that they were b iased  fo r  the prosecution or 
again st the defendant. None o f the veniremen 
ind icated , fo r  example, that he had a pre­
conceived opinion as to the p e t it io n e r 's  
g u i l t  or innocence . . . . [T ]he veniremen 
ind icated  only that they would be w i l l in g  to 
perform th e ir  c iv ic  o b lig a t io n  as ju ro rs  and 
obey the law . Such persons cannot accurate ly  
be branded prosecution -prone. .. . .

The two excluded veniremen, on the other 
hand, stated  that they would autom atically  vote 
against im position o f the death penalty regard ­
le ss  o f any evidence that might be developed at 
t r i a l .  They a lso  represented that they would 
f a i r ly  judge the p e t it io n e r 's  g u i l t  or innocence 
[desp ite  t h e i r ’ a ttitudes toward the death pen­
a lty ] . The sta te  t r i a l  court, nonetheless, 
struck them fo r  causa, thus excluding them 
completely from the t r i a l .  We fin d  nothing 
co n stitu tio n a lly  im perm issible by a state  
fo llow in g  such a procedure. F lo r id a  apparently  
has concluded than, i f  fo r  whatever noble reason  
. . . a venireman c lin gs  so s te a d fa s t ly  to

[Fcocn'oue 5 4/ continues on n



hearing which Witherspoon envisaged, p e t it io n e r  w i l l  be dead. 

So w i l l  others in  the F ifth  C irc u it , unless the Court grants  

review  o f  th e ir  cases, which cannot present the issue  any 

d if fe r e n t ly .  C e r t io ra r i  should be granted here.

Footnote 54/ continued

the b e l i e f  that c a p ita l punishment is  wrong that 
he would never under any circumstances agree to 
recommend the sentence o f  death, i t  is  e n t ire ly  
p o ss ib le  —  perhaps even probab le  —  that such 
a venireman could not f a i r l y  judge a defendant's  
g u i l t  o r  innocence when a c a p ita l fe lon y  is  
charged."

57S F.2d at 594-595; pp. 13a -  14a in fra  (emphasis in  o r i g in a l ) .

In the f i r s t  p lace , there is  no reason to b e lie v e  that 
F lo r id a  has ever made the judgment a ttr ibu ted  to i t  in th is  
passage. P e t it io n e r 's  t r i a l  judge c e r ta in ly  d id  not. Rather, 
the F lo r id a  procedure o f  excluding at the g u i l t  phase o f  a 
c a p ita l t r i a l  a l l  p rospective  ju ro rs  who could not recommend 
a death sentence at the penalty  phase is  e x p lic ab le  wholly  in  
terms o f  the S ta te 's  unw illingness to pay the cost o f empanel­
ing separate  ju r ie s  fo r  the two phases (the procedure suggested  
in  Witherspoon v . I l l i n o i s , supra , 391 TJ.S. at 520 n .1 3 ), or 
even to endure the le s s e r  inconvenience o f a llow in g  death - 
scrupled  ju ro rs  to remain fo r  the penalty  phase and p a rt ic ip a te  
in  an adv isory  v e rd ic t  which under F lo r id a  law a t r i a l  judge 
might s t i l l  o ve rrid e , e sp e c ia lly  i f  p o ll in g  revea ls  that th e ir  
votes re su lted  in  a m ajority  fo r  l i f e  imprisonment. In the second j 
p lace , i f  F lo r id a  had made such a judgment, we do not see how 
i t  —  or the Court o f  Appeals —  could ju s t i f y  that judgment by 
the use o f  an unexplained double standard which c red its  the 
v o ir  d ire  statements o f d e a th -q u a lif ie d  ju ro rs  that they can 
t ry  issues o f  g u i l t  o r innocence f a i r l y  but d is c re d its  the 
equ a lly  solemn and sworn, id e n t ic a l statements o f  death -scrup led  
ju ro r s .  In the th ird  p lace , not on ly the la t t e r  judgment but 
the bu lk  o f  the Court o f  Appeals ' reasoning upon th is  issue  re s ts  
upon assertion s or assumptions o f  fa c t  which (1) have no b a s is  
in  the record, and (2) are in con sisten t with the fa c ts  developed  
by em pirica l research , which p e t it io n e r  sought and was denied an 
ev iden tiary  hearing to prove, and (3) are made in  an opinion  
which purports to r e je c t  p e t it io n e r 's  d e a th -q u a lif ie d  ju ry  con­
tentions as a matter o f  law, hold ing that he was p roperly  denied  
a hearing on these very issues o f  fa c t .  We would th ere fo re  not 
expect the reasoning o f the Court o f  Appeals to commend i t s e l f  
to th is  Court upon p lenary  con sideration .

_ = i  _

I



THE COURT SHOULD GRANT CERTIORARI 
TO DETERMINE WHETHER THE EXECUTIVE 
CLEMENCY PROCEDURES EMPLOYED IN 
PETITIONER'S CASE DEPRIVED HIM OF 

DUE PROCESS OF LAW

The issue here is  framed by F lo r id a 's  p a r t ic u la r  

form o f executive clemency procedure fo r  death cases. That 

is  not an. ad hoc, personal in ve st ig a t io n  and review o f  

in d iv id u a l records by the Governor, but a form alized  

adm in istrative  process, regu lated  by w ritten  ru le s , which 

culminates in an adversary hearing before  the Cabinet and 

must be conducted in  every case as the b a s is  fo r  e ith e r  

commutation o f the death sentence o r , conversely , sign ing  

o f a death warrant.

P e t it io n e r 's  contention that he is  e n t it le d  to due 

process o f law in such a proceeding was re jec ted  by the 

F lo rid a  Supreme Court on the ground that clemency is  an 

act o f grace , Su llivan  v. Askew, 348 S o .2d 312, 314 (F la .

1977), and by the Court o f Appeals below on authority  o f  

Schick v. Reed, 419 U.S. 256 (1974), and Meachum v. Fano,

427 U.S. 215 (1976). However, p e t it io n e r 's  claim  is  fo r  

procedural due process, not fo r  substantive ju d ic ia l  review  

as in Schick; and h is complaint is  about the dec ision  to 

dispatch him to another w orld , not to ' " a  prison the con­

d ition s o f which are su b s ta n t ia lly  le s s  fa v o r a b le , '"  as in Meachum, 

quoted below in 57S F .2a at 618; p . 37a in f r a .

IV.

I



The Court has p rev iou s ly  denied c e r t io r a r i  on th is  

is su e . S u lliv an  v . Askew. 434 tJ.S. 378 (1977). I f  that d en ia l 

was bottomed on the conclusion that the issue  is  inheren tly  

unworthy o f p lenary  review , then review  o f i t  should a lso  

be denied now. But because i t  may a lt e rn a t iv e ly  be that the 

e a r l i e r  d en ia l rested  in  p a rt  upon the C ourt' s understanding  

that the Due Process claim  was s t i l l  open and might be 

v ind icated  a f t e r  an ev id en tia ry  hearing in  fe d e ra l habeas 

corpus, we cannot assume r e s p o n s ib i l it y  fo r  f a i l i n g  to 

present i t  to the Court one f in a l  time, now that p e t it io n e r  

has d e f in it e ly  been s la ted  to d ie  upon the premise that he 

has no c o n s t itu t io n a lly  cogn izable  in te re s t  in  the nature o f  

the adm in istrative  procedures which resu lted  in  a dec is ion  

to k i l l  instead o f  spare him. The issue  is  d e ta ile d  in  the 

S u lliv an  c e r t io r a r i  p e t it io n  attached as Appendix H, pp. lh  -  

6 8h> in f r a , fo r  the C ou rt 's  convenience. V.

V.

THE COURT SHOULD GRANT CERTIORARI TO 
CONSIDER WHETHER PETITIONER WAS DE­
PRIVED OF AN ADEQUATE HEARING ON HIS 
CLAIM THAT ELECTROCUTION IS AN UN­
NECESSARILY TORTUROUS AND WANTONLY 
CRUEL MEANS OF EXECUTION, AND 
THEREFORE VIOLATES THE EIGHTH AND 

FOURTEENTH AMENDMENTS

The Court below  held  that In re Kemmlar, 136 U .S .

436 (1890), ju s t i f i e d  the D is t r ic t  Court in  denying p e t it io n e r  

an ev iden tia ry  hearing on h is contention that "e lec tro cu tion  .



is  unnecessarily  torturous and wantonly crue l and there­

fore constitu tes c rue l and unusual punishment," 578 F.2d at 

616; p. 35a in f r a . We obviously  b e lie v e  and fe rv en tly  hope 

that the issue need not be reached in th is case. But, i f  

the execution o f p e t it io n e r 's  death sentence is  not i t s e l f  

forbidden by the C onstitu tion , then we re sp e c t fu lly  submit 

that a t  the le a s t  he should be given an opportunity to show 

that the means by which F lo r id a  proposes to put him to 

death are indecent and an a ffro n t  to human d ign ity— ^ in  

th is  th ird  quarter o f the Twentieth Century.

The ghastly  r e a l i t y  o f e lec trocu tion  is  described

in accounts that have been co lle c ted  elsewhere
56/

As a

le g is la t iv e  sponsor o f  Texas' le th a l- in je c t io n  statu te

put i t ,  "there has ju s t  got to be a b e tte r  way":

" I t ' s  a very scary thing to see. Blood 
squ irts  out o f the nose. The eyeba lls  
pop out. The body almost v i r t u a l ly  
catches f i r e .  I voted fo r  a more humane 
treatment because death is  p re tty  f in a l .  
That's  enough o f a p en a lty . "5JZ/

55/— • See Gregg v. G eorg ia , supra, 428 U.S. at 182 (opinion or 
Mr. Justice Stewart, Mr. Justice Powell and Mr. Justice  
Stevens), c it in g  Trop v. D u lle s , 356 U.S. 86, 100 (1953) 
(p lu ra lit y  o p in io n ), fo r  the p roposition  that "the basic  
concept o f human d ign ity  [ l i e s ]  a r  the core o f the [Eighch] 
Amendment."

56 /— '  3 r ie f  fo r  P e t it io n e r  in Aikens v. C a l i fo r n ia , 406 U.S. 813 
(1972) [O.T. 1971, No. 63-5027], Appendix I ,  pp. 5 i -9 i .

57/
— • We quote th is  kind o f a descrip tion  with much

reluctance. Obviously, the problem o f how we should  
appropriate ly  focus the present issue fo r  the C ou rt 's  
consideration  is  a trou b lin g  one. No ev iden tiary  record  
was made below: chat is  p re c ise ly  our complaint. To 
ta lk  about "e lsctrocuu ion " in the ab strac t , as though the 
word captured the r e a l i t y  o f the su b jec t, is  to conceal 
the very point that makes an ev id en tia ry  hearing  
necessary: namely, chat the word is  a very fa r  cry from

(Footnote 57/ continues on next pace.



Houston Chron icle, May 5, 1977. Another le g is la t iv e  sponsor

stated  that e lectrocu tion  "takes away from the d ign ity  o f the 

s ta te ."  I b id . And the D irecto r o f the Texas Department o f  

Corrections supported the b i l l  as "a more c iv i l i z e d  way o f 

carry ing  out our r e s p o n s ib i l i t ie s . "  I b id .

For a number o f  reasons, Kemmler should not bar the 

hearing which p e t it io n e r  sought below in order to show that 

e lectrocu tion  is  no longer a c iv i l i z e d  way "to  extingu ish  

l i f e  humanely," Louisiana ex r e l .  Francis v. Resweber, 329 U.S. 

459, 464 (1947 )(p lu ra lit y  op in ion ). The Kemmler case was 

decided almost n inety years ago. The le g a l  issue presented  

then was whether e lectrocu tion  deprived Kemmler o f due 

process o f law o r o f  the p r iv i le g e s  and immunities o f fed e ra l

Footnote 57/ continued

conveying the r e a l i t y .  Some ten years ago, in  the B r ie f  
fo r  the N .A .A .C .P . Legal Defense and Educational Fund,
In c ., e t c . ,  as Amici Curiae in Boykin v. Alabama, 395 U.S. 
238 (1969) [O.T. 1968, No. 642], pp. 29-30, we explained  
our equa lly  uncomfortable dec ision  not to set fo rth  eye­
witness accounts o f execu tion s:

" . . . '  [A ]s  we prepared the m ateria ls  fo r  
the appendix, we re a liz e d  that th e ir  inc lusion  
here would c e rta in ly  cause us to be charged 
with sensationalism  and an' appeal to passion  
and repu ls ion . Such is  the character o f  th is  
in s t itu t io n  o f k i l l in g  men that i t  fo rces one 
who attacks i t  le g a l ly  e ith e r  to describe  with  
p a r t ic u la r it y  what he is  attack ing, and be 
b it t e r ly  resented , or to keep s i le n t  about i t ,  
and r isk  being misunderstood. F in a lly , we 
have decided to jo in  in the genera l 'decent  
r e t ic e n c e ,1 and to do no more than provide  
the Court with c ita t io n s  to d escrip tion s o f 
the methods o f e x ecu tio n s ."

Here, because o f  our r e s p o n s ib i l it ie s  as counsel fo r  
p e t it io n e r , we have f e l t  i t  necessary to provide a t  
le a s t  one b r ie f  d escrip tion  o f the method o f execution  
which he urges is  u n con stitu tion a lly  barbarous.

-5 5  -



c it iz en sh ip . Not u n t i l  1962 was the Eighth Amendment

d e f in it iv e ly  incorporated into the Fourteenth Amendment. 

Robinson v. C a l i fo rn ia , 370 U.S. 660 (1962). The same 

opinion recognized that the incorporated Cruel and Unusual 

Punishments Clause must be app lied  "in  l ig h t  o f contemporary 

human knowledge," id . a t  666; and the Court has since r e a f ­

firm ed that "the Eighth Amendment . . . [ i s ]  not . . .  a 

s t a t ic  concept,? and that i t  fo rb id s  "the unnecessary and 

wanton in f l ic t io n  o f p a in ,"  Gregg v. G eorg ia , supra , 428 U.S. 

at 172-173 (opinion o f Mr. Justice  Stewart, Mr. Justice  

Pow ell, and Mr. Justice S tevens). In Kemmler's time (and 

indeed in  h is own c a s e ) , e lec trocu tion  was an untried  

experiment: no one yet knew how i t  would work out on 

human beings in  p rac tic e , but the expectation  was that i t
C, Q /

would prove to be a humanitarian advance over hanging.

Today, the experience to assess that experiment e x is t s ;  the
5 Q /

expectation has turned out to be wrong;—*■ and, equa lly  

important, science has progressed s u f f ic ie n t ly  to make new 

a lte rn a t iv e s  fe a s ib le ,  such as the intravenous in je c t io n  

method now prescribed  in Idaho, Oklahoma and Texas.&Q-/ Under 

these circumstances, Kemmler obviously  cannot fo rec lo se  the

— 'S ee  Bernstein , "A Grand Success,"  10 INST. ELECTRICAL St 
ELECTRONICS ENG. SPECTRUM 54 (February, 1973).

59/
— • See, e . q . , ROYAL COMMISSION ON CAPITAL PUNISHMENT

1949-1953, REPORT (H.M.S.O. 1953 )[Cmd. 8932] 246-261.

— ^Idaho Code §19-2716 (Supp. 1978); Okla. S tat. Ann., t i t .  
22, § 1014 (Supp. 1978-1979); Vernon 's Tex. Code Crim. 
Pro. Ann., a r t . 43.14 (Cum. Supp. 1966-1977).

—oo'



fa c tu a l question whether e lec trocu tion  involves "the  

in f l ic t io n  o f unnecessary pain  in  the execution o f  the 

death sentence," Louisiana ex r e l .  Francis v . Resweber, 

supra , 329 U .S . at 463 (p lu r a l i t y  opinion ) .6-^/

CONCLUSION

The w r it  o f  c e r t io r a r i  should be granted.

R espectfu lly  submitted,

JACK GREENBERG 
JAMES M. NABRIT, I I I  
JOEL BERGER 
JOHN CHARLES BOGER 
DEBORAH FINS 

Su ite  2030 
10 Columbus C irc le  
New York, New York 10019

ANDREW A. GRAHAM 
Suite E
1970 Michigan Avenue 
Cocoa, F lo r id a  32992

DAVID E. KENDALL 
1000 H i l l  B u ild ing  
Washington, D.C. 20006

ANTHONY G. AMSTERDAM
Stan fo rd  U n iv e r s i t y  Law School 
Stan fo rd ,  C a l i f o r n i a  94305

ATTORNEYS FOR PETITIONER

‘ " . . .  [N ]o  court would approve any method o f
implementation o f the death sentence found to 
invo lve  unnecessary c ru e lty  in l ig h t  o f  p re s ­
en tly  a v a ila b le  a lt e rn a t iv e s ."

Furman v . G eo rc ia , suora , 403 U .S . at 430 (d issen tin g  opinion  
o f  Mr. Justice  P o w e ll ) .