Jenkins v. Missouri Individual Brief of Appellee the School District of the City of Independence

    No. 86-5020

I n the

iwprpmp Qkutrt nt %  Itutpib States
October Term, 1986

J ohn B ooth,

v.
State op Maryland,

Petitioner,

Respondent.

O N  W R IT  OP CERTIO RA RI TO T H E  COU RT 

OP A PPEA L S OP M A RYLAND

BRIEF OF AMICUS CURIAE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. 

IN SUPPORT OF PETITIONER

J ulius L. Chambers 
J ames M. Nabrit, III 
J ohn Charles Boger 
V ivian Berger*

99 Hudson Street
New York, New York 10013
(212) 219-1900

A nthony 0 . Amsterdam 
New York University 

School of Law 
40 Washington Square South 
New York, New York 10012 
(212) 598-2638

Attorneys for the NAACP Legal 
Defense and Educational 
Fund, Inc.

^Counsel of Record



QUESTIONS PRESENTED

1. Does the admission at a penalty 

trial of so-called victim impact evidence 

—  which is by nature inflammatory, 

irrelevant to any legitimate capital 
sentencing purpose, and conducive to death 

sentences imposed on the basis of race, 

social class, and other impermissible 

factors —  violate the Eighth and 

Fourteenth Amendments?
2. Did the introduction at 

petitioner's sentencing of a "Victim Impact 

Statement," as mandated under Maryland law, 

violate this petitioner's rights under the 

Eighth and Fourteenth Amendments?

i



TABLE OF CONTENTS
Page

Questions Presented .............. i
Table of Authorities ............. iv

Statement of Interest of
Amicus Curiae .................   1

Summary of Argument .............. 3

Argument .........................  4
The Use of "Victim 
Impact" Evidence at the 
Penalty Phase of a 
Capital Trial, As Man­
dated Under Maryland 
Law, Injects Irrational,
Arbitrary and Imper­
missible Considerations 
into the Life-or-Death 
Decision, and Is
Unconstitutional .......  4

1. Much of the Matter 
Required by Maryland 
Law to Be Included 
in Victim Impact 
Statements Bears No 
Conceivable Rela­
tionship to the 
Legitimate Ends of
Capital Sentencing .. 7

2. By Deflecting the 
Jury From Its Proper 
Task of Objectively 
Considering the Par­
ticularized Circum­
stances of the 
Individual Offender

ii



and Crime, Introduc­
tion of Victim Impact 
Statements at the 
Penalty Phase En­
courages Arbitrary 
Sentences of Death .. 22

3. Admission of Victim 
Impact Evidence Would 
Necessitate Admission 
of Expansive Proof
of a Similar Type,
Offered On Behalf of 
Defendants .... . 31

4. Victim Impact State­
ments Invite the Jury 
to Impose Sentences 
of Death for Consti­
tutionally Impermis­
sible Reasons ....... 36

II. The Admission at Peti­
tioner's Penalty Trial 
of a Long, Irrelevant,
Inflammatory Victim 
Impact Statement Vio­
lated Petitioner's 
Rights Under the Eighth
and Fourteenth Amendments 40

Conclusion .......................  46

iii



TABLE OF AUTHORITIES

Cases Page

Adams v. Texas, 448 U.S. 38
(1980) .........................  2

Barefoot v. Estelle, 463 U.S. 880
(1983) .........................  2

Booth v. State, 306 Md. 172,
507 A.2d 1098 (1986) ....  13 n.7,34,37,38

n.18,41 n.20,45

Brooks v. Kemp, 762 F .2d 1383 
(11th Cir. 1985) (en banc),
vacated, ___ U . S . ___,
92 L.Ed. 2d 732 (1986) ......... 38,39

Caldwell v. Mississippi, ___ U.S.
___, 86 L.Ed. 2d 231 (1985) ....  5

California v. Ramos, 463 U.S. 992
( 1983) ................. 6 r.. 2,15, 16,17,23

Chambers v. Mississippi,
410 U.S. 284 (1973) ............ 32

Coker v. Georgia, 433 U.S. 584
(1977) .........................  22

Coppola v. Commonwealth,
220 Va. 243, 257 S.E. 2d 797 
(1979), cert, denied, 444 U.S.
1103 ( 1980) ....................  35 n. 17

Eddings v. Oklahoma,
455 U.S. 104 (1982) ............ 21

Enmund v. Florida,
458 U.S. 782 (1982) ....... 2,15,16,21,22

Estelle v. Smith,
451 U.S. 454 (1981) ............ 2

IV



20

Evans v. State, 422 So. 2d 737
(Miss. 1982), cert, denied, 461 
U.S. 939 (1983) ...............

Fisher v. State, 482 So. 2d 203 
(Miss. 1985} .................. .

Furman v. Georgia, 408 U.S. 238
( 1972) ...................... 2,4,2

Fuselier v. State, 468 So. 2d 45
(Miss. 1985) ....................

Gardner v. Florida,
430 U.S. 349 (1977) ....22 n.12,23

Godfrey v. Georgia,
446 U.S. 420 (1980) ............

Grant v. State, 703 P .2d 943
(Okla. Crim. App. 1985) .......

Green v. Georgia, 442 U.S. 95
(1979) ................. ........

Gregg v. Georgia,
428 U.S. 153 (1976) ..2,4,15,17.n .

Henderson v. State, 234 Ga. 827,
218 S.E. 2d 612 (1975) ........

Ice v. Commonwealth, 667 S.W. 2d 
671 (Ky.), cert, denied,
469 U.S. 861 (1984) ............

Lockett v. Ohio,
438 U.S. 586 (1978) .... 16,27-28

Lodowski v. State, 302 Md. 691,
490 A.2d 1228 (1985), vacated,
___ U.S. ___, 89 L .Ed.2d 711
(1986) ..... 5 n.1,9&.n.4,13-14.&

19,24,25

29

1,24,36

26 n.13

,27,30, 
33 n.16

22,23 

29,30 

32

8,23,24 

28,29

26

n.14,30

n.7,18, 
,42 n .21

v



Moore v. Zant, 722 F .2d 640 
(11th Cir. 1983), reh'g 
en banc granted, 738 F .2d 1126 
(11th Cir. 1984) .11,14,19&.n .9,20& n.10,

35 n.17,36,38 n.19,39

Muckle v. State, 233 Ga. 337, 
211 S .E .2d 361 (1974) --- 11 n. 5

People v. Bartall, 98 111. 2d 294,
456 N.E. 2d 59 (1983) .........  29

People v. Brown, 40 Cal. 3d 512,
709 P. 2d 440, 220 Cal. Rptr.
637 (1985), cert, granted, ___
U.S. , 90 L.Ed. 2d 717
(1986T~T...................... . n.14

People v. Easley, 34 Cal. 3d 858,
671 P .2d 813, 196 Cal. Rptr. 309
(1983) .........................  27 n -14

People v. Free, 94 111. 2d 378,
447 N.E.2d 218, cert, denied,
464 U.S. 865 (1983) .11 n.5,18,25-26 n.13

People v. Holman, 103 111.2d 133,
469 N.W.2d 119 (1984), cert.
denied, 469 U.S. 1220 (1985) .18,19,26,39

People v. Lanphear, 36 Cal.3d 163,
680 P .2d 1081, 203 Cal. Rptr.
122 (1984) .....................  27 n -14

People v. Levitt, 156 Cal. App.
3d 500, 203 Cal. Rptr. 276
(1984) ...11 n.5 ,1 7 ,1 8 ,20 n.10,28,30 n.15

People v. Love, 53 Cal.2d 843, 350 
P .2d 705, 3 Cal.Rptr. 665
(I960) ................ .....21 n.11,23,24

People v. Ramirez, 98 111.2d 439,
457 N.E. 2d 31 (1983) .........  25 n.13

vi



Skipper v. South Carolina,
_____ U.s. ... , 90 L.Ed. 2d 1
"( 1986) .......27 n . 14 , S2-33& n. 16,35 n.17

State v. Gaskins, 284 S.C. 105,
326 S.E. 2d 132 (1985) ........  35 n. 17

State v. Reeves, 216 Neb. 206,
344 N.W. 2d 433 (1984) ......... 10 n.4

State v. Rushing, 464 So.2d 268 
(La. 1985), cert, denied,

U.S. ___, 90 L.Ed. 2d 703
(1986) ........................ . n.22

State v. Sprake, 637 S .W .2d 724
(Mo. Ct. App. 1982) ............ 29

State v. Williams, 217 Neb. 539,
352 N.W.2d 538 (1984) ........ 9-10 & n.4

Tobler v. State, 688 P.2d 350
(Okla. Crim. App. 1984)   14,26

Turner v. Murray, ___ U.S. ___,
90 L.Ed. 2d 27 (1986) ..... 5,6.n .2,30,39

Vela v. Estelle, 708 F.2d. 954 
(5th Cir. 1983), cert, denied,
464 U.S. 1053 (1984)   26,27

Welty v. State, 402 So.2d 1159,
(Fla. 1981)   29

Wiley v. State, 484 So.2d 339
(Miss. 1986)   26

Witherspoon v. Illinois,
391 U.S. 510 (1968)   2

Woodson v. North Carolina,
428 U.S. 280 (1976) .......... 4,6 n.2,15

vii



Zant v. Stephens, 462 U.S. 862
(1983) ....................  16,17,21,23,36

Statutes
Fed. R. Crim. P. 32(c) ..........  6 n.2
Fed. R. Evid. 404(a) ............. 19 n.9

L.S.A. Code Crim Pro.,
art. 875 (A), (B) (Supp. 1986) . 9 n.4

Md. Code, art. 27, section 413(c)
(iv)(Cum. Supp. 1984)........... 42& n.21

Md. Code, art. 41,
section 124 (Cum. Supp. 1984) ..7-8& n.3,

9 n.4,10,11,18

Md. Rule 4-343 (d ) ................  34

Neb. Rev. Stat. section 29-2261
( 1985)   9 n.4

O.C.G.S. sections 17-10-1.1,
17-10-1.2 (Supp. 1986)   9 n.4

Okla. Stat. Ann. tit. 22,
section 982 (1986)   9 n.4

Public Law No. 97-291,
96 Stat. 1248 (1982)   6 n.2

S.C. Code Ann. section 16~3~1550(A)
( 1985)   9 n.4

Other Authorities
Henderson, The Wrongs of Victim's 

Rights, 37 Stan. L. Rev. 937

vi i i



No. 86-5020

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986

JOHN BOOTH,
Petitioner,

v .

STATE OF MARYLAND,

Respondent.

ON WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF MARYLAND

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.
IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMICUS CURIAE 

The NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation 

established to assist black citizens in 
securing their constitutional rights. In 

1967, it undertook to represent indigent 
death-sentenced prisoners for whom adequate 

representation could not otherwise be



found. It has frequently represented such 
prisoners before this Court. E.g., Furman 
v. Georgia, 408 U.S. 238 (1972); Estelle v. 
Smith, 451 U.S. 454 (1981); Enmund v ■ 
Florida, 458 U.S. 782 (1982). The Fund has 
also appeared before this Court as amicus 
curiae in capital cases. E.g., Witherspoon 
v. Illinois, 391 U.S. 510 (1968); Gregg v. 
Georgia, 428 U.S. 153 (1976); Adams v. 
Texas, 448 U.S. 38 (1980); Barefoot v. 
Estelle, 463 U.S. 880 (1983).

The Legal Defense Fund currently 
represents a substantial number of indigent 
condemned prisoners in states in the Fourth 
Circuit and elsewhere, whose cases are at 
various stages following affirmance of 
conviction and sentence by the state 
appellate courts. The Fund is also often 
called on, and tries to the extent of its 
capacities, to provide consultative 
assistance to attorneys representing other 
capital defendants across the nation.

2



The issues presented by this case are of 

utmost concern to death-sentenced prisoners 

throughout the country, including many 

represented by the Fund. Both petitioner 
and respondent have consented to the filing 
of this amicus curiae brief.

SUMMARY OF ARGUMENT

I. The admission of victim impact 

evidence at penalty trials violates the 

Eighth and Fourteenth Amendment rights of 

defendants on trial for their lives on a 
number of grounds. For one thing, its use 
advances no legitimate goal of capital 

sentencing. Further, because it is so 

inflammatory, it deflects the jurors from 

rational consideration of the life-or-death 
decision. Toleration of this evidence 

would, moreover, compel admission of wide- 
ranging proof of a similar nature offered 

by defendants, and thereby threaten the 
entire structure of death-sentencing

3



jurisprudence the Court has erected. 

Finally, victim impact evidence encourages 

jurors to base determinations of death on 

invidious, impermissible factors such as

race and social class.
II. in this case, the "Victim Impact 

Statement" admitted at the penalty trial 

was so inflammatory and irrelevant as 

clearly to violate petitioner's rights 

under the Eighth and Fourteenth Amendments.

ARGUMENT 

I .
THE USE OF "VICTIM IMPACT" EVIDENCE AT 
THE PENALTY PHASE OF A CAPITAL TRIAL, 
AS MANDATED UNDER MARYLAND LAW, INJECTS 
IRRATIONAL, ARBITRARY AND IMPERMISSIBLE 
CONSIDERATIONS INTO THE LIFE-OR-DEATH 
DECISION, AND IS UNCONSTITUTIONAL._____

Both in ushering out the old era

of capital punishment, Furman v ..Georgia,,

40S U.S. 238 (1972), and in inaugurating

the new, see, e.g., Gr egg_v^_G eonrgia, 428 

U.S. 153 (1976); Woodson v . North Carolina, 
428 U.S. 280 (1976), the Court announced a

4



strong commitment to eradicating arbitrary 

and invidious influences on death-penalty 

determinations. That commitment persists 

unabated. As recently as last Term's

decision in Turner v. Murray, __ U.S.__, 90
L .Ed.2d 27 (1986), the Court reaffirmed its 
obligation to strike down death sentences 

imposed under circumstances that "'created 

an unacceptable risk'" of arbitrariness, 

caprice or mistake. Id. at 36, quoting

Caldwell v. Mississippi, ___ U . S . ___, 86
L .Ed.2d 231, 248-49 (1985)(0'Connor, J.,

concurring in part and concurring in the 

judgment).
So-called victim impact evidence, 

which in capital penalty proceedings mainly 

deals with effects of the crime on the 

victim's family1, offends this principle

1Lodowski v. State, 302 Md. 691, 760- 
61, 490 A.2d 1228, 1263 (1985) (Cole, J.,
concurring), vacated on other grounds,__
U.S.__, 89 L.Ed. 2d 711 (1986). More
detailed discussions of such evidence 
appear at pp. 40-45, infra.

5



for four interrelated reasons,2 First, such 

evidence intrudes into the penalty decision 

considerations that have no rational 

bearing on any legitimate aim of capital 

sentencing. Second, this proof is highly 
emotional and inflammatory, subverting the 
reasoned and objective inquiry which this 

Court has required to guide and regularize 

the choice between death and lesser 

punishments. Third, victim impact evidence 

cannot conceivably be received without 

opening the door to proof of a similar

^The Court need not now determine the 
appropriate role, if any, of the victim or 
the victim's family at various stages of 
ordinary trials. See generally Henderson, 
The Wrong’s of Victim's Rights, 37 Stan. 
ITTr evT~9 3 7 ( 1985); see , e . g ._j_ Pub. L. No. 
97-291, 96 Stat. 1248 (1 9 8 2 )(amending Fed. 
R. Crim. P. 32(c)(2)). For, as the Court 
has often recognized; "' ••• [Tjhe 
qualitative difference of death from all 
other punishments requires a 
correspondingly greater degree of scrutiny 
of the capital sentencing determination.'" 
Turner, U.S. at 90 L.Ed.2d at 36, 
quoting California v. RamosL 463 U.S. 992, 
998-99 (1983). See also Woodson v. North 
Carolina, 428 U.S. at 303-05 (opinion of 
Stewart, Powell and Stevens, JJ.).

6



nature in rebuttal or in mitigation,

further upsetting the delicate balance that

the Court has painstakingly achieved in

this area. Fourth, the evidence invites

the jury to impose death sentences on the
basis of race, class and other clearly
impermissible grounds.

1. Much of the Matter Required by 
Maryland Law to Be Included in Victim 
Impact Statements Bears No Conceivable 
Relationship to the Legitimate Ends of 
Capital Sentencing.__________________ ___

Article 41, section 124 of the Maryland 

Code, set out in pertinent part in the 

margin,3 provides for a Victim Impact

3Section 124(c)(3), (4) and (d) read
as follows (emphasis added):

(c ) ...
(3) A victim impact statement 
shall:
(i) Identify the victim of the 
offense;
(ii) Itemize any economic loss 
suffered by the victim as a 
result of the offense;
(iii) Identify any physical 
injury suffered by the victim as 
a result of the offense along

7



Statement ("VIS") to be encompassed in the 

presentence investigation. Originally 

enacted in 1982, the law did not apply at 

first to felonies that resulted in death.

with its seriousness and 
permanence;
(iv) Describe any change in the 
victim's personal welfare or 
familial relationships as a 
result of the offense;
(v) Identify any request for 
psychological services initiated 
by the victim or the victim's 
family as a result of the 
offense; and
(vi) Contain any other information
related to the impact of the offense 
upon the victim or the victim’s family 
that the court requires.
(4) If the victim is deceased, 
under a mental, physical, or legal 
disability, or otherwise unable to 
provide the information required 
under this section, the
information__may be obtained from
the_____personal representative,
guardian, or_committee,__or__such
family members as may be necessary.
(d ) In any case in which the death
penalty is__requested under Article
27, section 412, a presentence 
investigation, including a victim
impact____ statement, shall____ be
completed by the Division of Parole
and Probation,__ and shall__be
considered__by the court or .jury
before whom the separate sentencing
proceeding __is___conducted under
Article 27, §413.

8



See Lodowski v. State, 302 Md. at 736-37 & 
n .4, 490 A.2d at 1251-52; id., 302 Md. at 

760-63 & n .4, 490 A.2d at 1263-65 & n.4 

(Cole, J., concurring) (discussing 

legislative history). The next year, the 

statute was amended, in haste and 
apparently without much thought, to require 

preparation and consideration by the 

sentencing body of a VIS in any case where 

the death penalty is requested (but not in 
other murder prosecutions). 4

4About 30 states have recently passed 
statutes authorizing victim input, in the 
form of statements or otherwise, in 
sentencing proceedings. Lodowski v. State, 
302 Md. at 754-55 & n.3, ~490 A.2d at 1260 
n.3 (Cole, J. concurring)(listing
statutes). Most of these jurisdictions 
have also enacted capital punishment 
provisions. A number of states with both 
victim impact and death-penalty legislation 
expressly exclude capital sentencing from 
the ambit of the former statutes. See, 
e .q ,, L.S.A. Code Crim. Pro., art.
875(A),(B)(1984)(La.); O.C.G.S. sections 
17-10-1.1, 17-10-1.2 (Supp. 1986)(Ga.);
Okla. Stat. Ann. tit. 22, section 
982(1986); S.C. Code Ann. section 16-3- 
1550(A) (1985); but see Md. Code, art. 41,
section 124 (Cum Supp. 1984); Neb. Rev.
Stat. section 29-2261 (1985); State__v^
Williams, 217 Neb. 539, 541-42, 352 N.W.2d

9



Section 124 now calls for a VIS 
describing specific harms to the victim: 
economic, physical and emotional. The 
statute also expressly mandates inclusion 
in the statement of certain information 
regarding the family. For instance, the 
VIS must "[djescribe any change in the
victim's personal welfare or__L^ i lial
relationships" and "[identify any request 
for psychological services initiated by the 
victim or the victim's family that the 
court requires." Md. Code, art. 41, section 
124(c)(3)(iv), (v), (vi)(emphasis added). 
Where the victim is deceased, a separate 
subheading explicitly provides for the 
needed data to be gotten "from the 
personal representative, guardian, or 
committee, or such family members as may be

538, 540-41 (1984) (presentence report
admissible at penalty trial) ; State— ,v_i. 
Reeves, 216 Neb. 206, 221, 344 N.W.2d
433, 444 (1984)(per curiam)(same). See
generally Henderson, supra note 2, at 986- 
87 .

10



necessary. Id. (c )(4){emphasis added).
See generally supra note 3. If one 

considers how, practically speaking, such a 

statute applies in a capital murder case, 

it is readily apparent why admission of a 
VIS or similar impact evidence5 at 

sentencing is "fraught with constitutional 

danger." See Moore v. Zant, 72 2 F .2d 640, 

646 (11th Cir. 1983),reh'g en banc granted, 

738 F .2d 1126 (11th Cir. 1984).
Every murder trial includes, as part of 

the prosecution's case, the fact that a 
particular victim has died and the extent

5Because victim impact legislation is 
of recent origin, see supra note 4, the 
statutes themselves have generated few 
reported cases Even in the absence of 
statutes, however, proof of this type has 
at times been offered in capital and non­
capital trials, and courts have passed upon 
its propriety. See, e .g ., People v. Free, 
94 111.2d 378, 447 N.E. 2d 218, cert. 
denied, 464 U.S. 865 (1983); Muckle v. 
State, 233 Ga. 337, 211 S.E.2d 361 (1974); 
People v. Levitt, 156 Cal.App.3d 500, 203 
Cal.Rptr. 276 (1984). Examples of 
experience with similar evidence elsewhere 
illuminate the problems of the Maryland 
law, and are accordingly included here.

11



of his or her injuries. The killing is an 

element of the crime charged, and proof of 

injuries is typically relevant to intent 

and other issues of mens rea as well as to 

the means employed.® Further, special 
facts about the victim which aggravate the 
crime when known to the killer —  such as 

the victim's status as a policeman on duty 

or vulnerable child or elderly person- 

will naturally emerge during trial; they 
will be highlighted in the penalty phase 

where a state has chosen to make them 

statutory aggravating circumstances. If a 

VIS is to have any significance, it would 

rest on the contents of the statement over 

and above all of this information. The 

matter, not bearing on the crime or the 
defendant's mental state in relation to it, 

is, of course, what this case is about.

6E.g., certain kinds of wounds, 
consistent with the close-range firing of a 
gun, would tend not only to prove the 
instrumentality of death but also, 
ordinarily, intent to kill.

12



Typically, those parts of the VIS that 

go beyond the evidence at trial portray 

grief--stricken relatives expressing their 

extreme sorrow, sense of loss, and anger 

over their bereavement —  often in highly 
emotional terms. Sometimes, these 
survivors call, explicitly or implicitly 

(as here), for the death of the 
perpetrator, or announce their impatience 

with procedures and delays in the courts. 

They relate somatic and psychological 
symptoms of distress attributed by them to 

the murder, such as physical ailments, 

effects on pregnancy, lack of appetite, 

sleeplessness, nightmares, fears and 

depression. Frequently, too, the adult 

survivors describe these conditions in 

their children.7

7Samples of all the varieties of proof 
detailed in this paragraph and the next 
appear both in Booth, 306 Md. 172, 234-39, 
507 A.2d 1098, 1130-33 (1986), and in 
Maryland's leading case on victim impact 
evidence, Lodowski v. State, 302 Md. at 
764-72, 780-84, 490 A .2d at 1265-70, 1273-

13



Insofar as the VIS recounts matter

pertaining to the actual victim, that too, 

ordinarily, has no bearing on the 

circumstances of the crime or the 

defendant. Frequently, (as here), family 
members were not present at the time of the 
killing and have no relationship with the 

killer. Hence, they tend to dwell upon 

general good character traits and 

achievements of the deceased, see , e .q .,
Moore_v. Zant, supra (victim's education

and work habits), and recollections of 

"happier days." See, e .g ., Lodowski, 302 

Md. at 770 n .8, 490 A.2d at 1268 n.8 (Cole, 
J., concurring)(topic heading in victim's 

mother's VIS was entitled "'Our Past Happy 

Days'"); Tobler v. State, 688 P.2d 350 
(Okla. Crim. App. 1984)(surprise Mother's 

Day family reunion involving the victim).

76 (Cole, J. concurring). See also infra at
40-45; Petitioner's Brief at ___ (Statement
of the Case).

14



Such proof at a penalty trial fails to 

contribute "measurably" —  or at all —  to 

the recognized aims of capital sentencing, 

which, as the Court has often stated, are 

mainly retribution and general deterrence. 

See, e .q ■, Enmund v. Florida, 458 U.S. 782, 

798 (1982); Greacr v. Georgia, 428 U . S . at 

183 (opinion of Stewart, Powell and 

Stevens, JJ.); see also id. at 233 
(Marshall, J., dissenting). These aims 
explain why capital punishment decisions 

since Gregg constantly recur to the theme 
of "personal responsibility and moral 

guilt," Enmund v. Florida, 458 U.S. at 801, 
and hence to the constitutional requirement 

that the 1 ife-or-death decision focus on 

"relevant facets of the character and 

record of the individual offender” and "the 
circumstances of the particular offense. 

Id. at 798; Woodson v. North Carolina  ̂428 

U.S. at 304 (opinion of Stewart, Powell and 

Stevens, JJ. ) . See, e . g , , Ca 1 i tor n i a . v_._

15



Ramos, 463 U.S. at 1006; Zant v , Stephens,

462 U.S. 862, 879 (1983); Lockett v. Ohio, 

438 U.S. 586, 604 (1978) (plurality 

opinion); Gregg, 428 U.S. at 189 (opinion 

of Stewart, Powell and Stevens, JJ.). For 
Enmund v. Florida, supra, in barring the 

infliction of death upon a vicarious felony 

murderer who did not intend any killing to 

occur, made clear that both the retributive 

and the deterrent efficacy of capital 

punishment depend critically on the degree 

of a defendant's culpability and, above 
all, his intent -- considerations built 

into the death-selection standard revolving 

about the crime and the criminal. See id., 

458 U.S. at 799-801. Executing a defendant 

on the basis of results over which he had 
no control and which he did not contemplate 

neither "educates" future offenders nor

16



constitutes "just deserts" for the actions 

of this particular offender.8
Unintended physical, emotional and 

psychological after-effects on relatives do 

not increase the moral blameworthiness of 

the killer beyond the onus he already bears 
for committing the murder, and are

"constitutionally irrelevant." See

California v. Ramos, 463 U.S. at 1001-02 

(footnote omitted); Zant v. Stephens, 462 

U.S. at 885. Since "the fact that a 

victim's family is irredeemably bereaved 

can be attributable to no act of will of 
the defendant other than" the killing, 

meting out death on account of "fortuitous 

circumstances" like "the composition of the

®Even if specific deterrence or 
incapacitation of the killer (preventing 
his commission of further crimes) were 
thought to justify capital punishment, cf. 
Gregg, 428 U.S. at 183 n.28 (opinion of 
Stewart, Powell and Stevens, JJ.) (taking 
no position on the question), achievement 
of these aims, too, would involve 
assessment of factors relating to the crime 
or the criminal.

17



Vk W s" fafnilyi Ptc>pU (/, , I S~C
Cal. App.3d at 516-17, 203 Cal. Rptr. at

287-88, or survivors' need for

"psychological services," Lodowski, 302 Md.

at 764 n .6, 490 A.2d at 1265 n.6, 1267

(Cole, J., concurring); see Md. Code, art. 
41, section 124(c)(3)(v), does not further 
deterrence or retribution. Indeed:

It would be difficult to find 
anything less relevant to the 
circumstances of this offense or 
the character of this defendant 
than testimony concerning the 
reactions of family members of his 
unfortunate victims. Their 
reaction was not to the nature of 
his crime but to the fact that the 
crimes happened.

People v. Free, 94 111. 2d at 436, 447 

N .E .2d at 246 (Simon, J., concurring in 

part and dissenting in part). Similarly, 

proof of the victim's sterling character 

ordinarily has no legitimate place at a 
capital trial and serves only to inflame 

the jury. See, e.q.. People v. Holman, 103
111.2d 133, 166-67, 469 N.E. 2d 119, 134-

18



35 (1984), cert. denied, 469 U.S. 1220

(1985).9
In Lodowski, on which the Maryland 

Court of Appeals relied in Booth, the 

majority cursorily equated victim impact 
evidence with the "circumstances

surrounding the crime" and therefore deemed 

it admissible. 302 Md. at 741-42, 490 A.2d 
at 1254. This argument is wholly

unpersuasive. Lodowski, 302 Md. at 774, 490 

A.2d at 1270 (Cole, J., concurring). Cf. 

Moore v. Zant,' 722 F . 2d at 653 n.3
(Kravitch, J., concurring in part and

9 In certain limited situations, facts 
concerning the victim's character may be 
relevant to guilt or innocence, or to the 
degree of the defendant's personal 
culpability, and hence admissible at 
capital trials as at others. See generally 
Fed. R. Evid. 404(a )(2)(permissible for 
state to show peaceable nature of victim to 
rebut evidence offered by defendant to 
prove victim was first aggressor). Compare 
Moore v. Zant, 722 F.2d at 645 (victim's 
character bore on existence of an
aggravating circumstance) with__id._ at 651
(Kravitch, J., concurring and dissenting) 
(contra).

19



dissenting in part)("pure sophistry to

subsume victim's "positive attributes"

under "'circumstances of the crime'").10 

On the one hand, to the extent that after­

effects are idiosyncratic, like the
blighting influence on a granddaughter's 

wedding of the murder involved in this case

(JA ___), such an expansive conception of

"crime" suggests no principled outer limits

germane to culpability. C_f. Evans_v .

State, 422 So.2d 737, 743-44 (Miss.
1982)(error in admitting proof of victim's 

wife's pregnancy, unknown to defendant, at 

capital sentencing was cured by 

instruction). On the other hand, as to 
predictable effects —  the likelihood, for

10By contrast, aggravating 
circumstances such as killing a victim who 
is known to be an on-duty police officer or 
especially vulnerable, see supra at 12, 
genuinely relate to the nature of the 
offense. See Moore v . Zant, 722 F .2d at 
652 n.2 (Kravitch, J., concurring in part 
and dissenting in part); People v . Levitt, 
156 Cal. App. 3d at 516-17, 203 Cal. Rptr. 
at 287-88.

20



instance, that someone will mourn the 

victim's loss —  their very generality 

defeats the goal of individualization in 
sentencing. See, e.q., Zant v. Stephens, 

462 U.S. at 879; Eddinqs v. Oklahoma, 455 
U.S. 104, 110-12 (1982). In any event, 
Enmund made clear that the death penalty 

cannot be grounded on broad notions of 

responsibility for all foreseeable results 
of one's acts:11 death imposed on such a

11A pre-Furman state court decision, 
People v. Love, 53 Cal.2d 843, 350 P.2d 
705, 3 Cal. Rptr. 665 (1960)(Traynor, 
CJ.), is very instructive in this regard. 
There, the court vacated a capital sentence 
because the state had presented proof of 
the victim's extreme pain, in the absence 
of any showing that the killer had intended 
to make her suffer when he shot her fatally 
at point-blank range. Operating under a 
system where (unlike now) the jury 
possessed "complete discretion" to assess 
sentence, and conceding that "retribution 
may be a proper [sentencing] 
consideration," the court nonetheless 
expressed strong doubt "that the penalty 
should be adjusted to the evil done without 
reference to the intent of the evildoer." 
53 Cal.2d at 856-57 & n.3, 350 P.2d at 712- 
13 & n.3, 3 Cal. Rptr. at 672-73 & n.3.

21



basisl2 amounts to "'nothing more than the 

purposeless and needless imposition of pain 

and suffering'" and thus to
"unconstitutional punishment." See.Enmund,

458 U.S. at 798, quoting Coker.v . G eo rqia,
433 U.S. 584, 592 (1977).

2. By Deflecting the Jury From Its 
Proper Task of Objectively Considering 
the Particularized Circumstances of the 
Individual Offender and Crime, Intro­
duction of Victim Impact Statements at 
the Penalty Phase Encourages Arbitrary 
Sentences of Death._____________________

If a state wishes to authorize capital 

punishment, it "must channel the 

sentencer's discretion by 'clear and 
objective standards' that provide 'specific 

and detailed guidance,' and that 'make 

rationally reviewable the process for 

imposing a sentence of death. Godfrey—v_.

12cf. Gardner_v. Florida, 430 U.S.
349, 359~(1977) : "If, as the State argues,
it is important to use such information in 
the sentencing process, we must assume that 
in some cases it will be decisive in the 
[sentencer’s] choice between a life 
sentence and a death sentence."

22



446 U. S . 420,Georgia, 446 U.S. 420, 428 (1980)

(plurality opinion) (citations omitted). 

Although the jury should have as much 

relevant data as possible to inform its 

choice, Gregg, 428 U.S. at 204 (opinion of

Stewart, Powell and Stevens, JJ.); see Zant 

v. Stephens, 462 U.S. at 878, "[i]t would 

be erroneous to suggest that the Court has 

imposed no substantive limitations on the 
particular factors that a capital 

sentencing jury may consider in determining 
whether death is appropriate." California 

v . Ramos, 463 U.S. at 1000. Critically,

evidence that introduces arbitrary 

variables into the life-or-death decision 

affronts the central constitutional tenet 

that a capital sentence must be "'based on 

reason1" -- in appearance and reality—  
"rather than caprice or emotion." Zant v. 

Stephens, 462 U.S. at 885, quoting Gardner 
v. Florida, 430 U.S. at 358. See also 

People v. Love, 53 Cal. 2d at 856, 350 P .2d

23



at 713, 3 Cal. Rptr. at 673 (pre-Furman

case).
Because Victim Impact Statements and 

similar forms of evidence virtually invite 

jurors to sentence on the basis of 
"'passion, prejudice or ... other arbitrary 
factor[s]'," no civilized system should 

sanction their use at the penalty phase of 

capital trials. Cf. Gregg, 428 U.S. at 166- 

67, 198 (opinion of Stewart, Powell and 

Stevens, JJ.)(upholding Georgia's capital 
statutes in part because appellate review 

minimized the influence of these factors). 
Judge Cole, the dissenter on this point in 

Booth, captured the essence of the dangers 

posed to rational sentencing by such 

innately inflammatory evidence in his 

concurrence in Lodowski:
In my view, the only 

purpose in allowing members of 
the victim's family in a 
capital sentencing proceeding 
to vent their passions and 
express their grief, as in 
this case, is to exacerbate 
the aggravating circumstances

24



established by the 
prosecution. These 
demonstrations are arbitrary 
and capricious and create a 
frenzied environment for the 
defendant. How can he 
challenge any testimony that 
expresses bereavement, 
religious harm, or infant 
sorrow?

Id., 302 Md. at 786, 490 A.2d at 1276-77.13

130pinions in several capital cases 
from other jurisdictions articulate 
compatible views. See, e.q,, People v . 
Ramirez, 98 111. 2d 439, 453, 457 N.E.2d 31,’ 
37 (1983)(citation omitted):

"[Ejvidence that a murder 
victim has left a spouse 
or children is 
inadmissible since it 
does not enlighten the 
trier of fact as to the 
guilt or innocence of the 
defendant or the 
punishment he should 
receive, but only serves 
to prejudice and inflame 
the jury."

See also People v. Free, 94 111.2d at 436, 
447 N.E.2d at 246 (Simon, J., concurring in 
part and dissenting in part):

An emotional rendition of 
the grief of a victim's 
family, while understand­
able, can only distract 
the jury from its weigh­
ing of the aggravating 
and mitigating factors

25



Several states have apparently

recognized these risks, and responded to 

them sensitively, by exempting capital 

penalty trials from the requirements of 

victim input laws. See supra note 4. In 
the absence of governing statutes too, 
courts have disapproved the use in capital 

proceedings of testimony designed mainly to 

create sympathy for the victim or his or 

her family, and simultaneously to generate 

hatred toward the defendant. See, e .g ■,
People v._Holman, 103 111.2d at 166-67, 469

N .E .2d at 134-35; Ice v. Commonwealth, 667 

S .W .2d 671, 675-76 (Ky.), cert, denied, 469 

U.S. 861 (1984); Wiley v. State, 464 So.2d 

339, 348 (Miss. 1986); Tobler v. State, 688

peculiar to the defendant 
and his crime. Such tes­
timony is always inflam­
matory .

Cf. Fuselier v. State, 468 So.2d 45 (Miss. 
1985)(reversal of conviction and death 
sentence because victim's daughter was 
permitted to sit near the prosecutor and 
openly displayed emotion).

26



P •2d at 353-54; cf. Vela__v. Estelle, 708

F • 2d 954, 964-65 (5th Cir. 1983)(because of 

counsel s ineffectiveness, jury had been 

encouraged "to set punishment based on the 

goodness of the murder victim"), cert. 
denied, 464 U.S. 1053 (1984).

Such rulings, whether or not expressly 

premised on the Eighth Amendment, 

effectuate its mandate to avert the risk of 

death sentences based on "caprice or 

emotion." See Gardner v, Florida, 430 U.S. 
at 358.14 They are bolstered by an

14This mandate in no way conflicts 
with the defendant's position in People v. 
Brown, 40 Cal.3d 512, 709 P.2d~440, 220 
Cal. Rptr. 637 (1985), cert. granted,
U-S. __, 90 L.Ed.2d 717 (1986), challenging
a penalty-phase instruction that the jury 
should not be swayed by sympathy. The 
California Supreme Court had previously 
held that a jury may not rely upon 
factually untethered sympathy -- i.e ., 
sympathy not based on the evidence. People 
v.. Lanphear, 36 Cal. 3d 163, 168 n. 1, 680 
P-2d 1081, 1084 n. 1, 203 Cal. Rptr. 122, 
125 n.l (1984); see People v. Easley, 34 
Cal. 3d 858, 876 671 P.2d'813," 824, 196 
Cal. Rptr. 309, 320 (1983). In Brown, the 
defendant produced substantial mitigating 
evidence relating to his character and 
background, as he was clearly entitled to

27



additional line of precedent that holds
inadmissible victim-character or 

generalized victim-sympathy proof -- as 

irrelevant or overly inflammatory -- even 

without regard to the special 

considerations obtaining in capital 
sentencing proceedings. See, e .g ., People 

v. Levitt, 156 Cal. App.3d at 517, 203 Cal. 

Rptr. at 288 (family's bereavement 

irrelevant to sentence of a defendant 
convicted of manslaughter); Henderson v. 

State, 234 Ga. 827, 828, 218 S.E.2d 612, 

614 (1975)(generally, murder victim's

do (see, e .g ., Skipper v. South Carolina,
U.S. __", 90 L . Ed. 2d 1 (1986); Lockett v.

Ohio, supra); the sole issue dividing the 
parties is whether the no-sympathy 
instruction foreclosed the jurors' 
consideration of this evidence, whose 
relevance no one disputes. See Brief for 
Respondent in People v. Brown, supra, at 9- 
10, 24.

Here, by contrast, the issue is 
precisely the relevance of evidence 
entirely unrelated to the character or 
background of a defendant or to his crime, 
but instead dealing only with collateral 
facts about a victim or surviving relatives



character is irrelevant and inadmissible in

a murder trial); Fisher v. State, 482 So.2d 

203, 225 (Miss. 1985) (en banc) (same);

Welty v. State, 402 So.2d 1159, 1162 (Fla. 

1981) (preference for non-family member 
testimony, whenever feasible, to identify
the deceased) ; c f . State_v.__Sprake, 637

S .W .2d 724, 727 (Mo. Ct. App. 1982) (in 

second-degree murder case, error to call 
widow solely to expose her to jury, to 

engender sympathy for the family and 
prejudice against the defendant); People

v. Bartall, 98 111.2d 294, 322-23, 456
N .E .2d 59, 72-73 (1983) (prosecutor's

summation on victim's rights held improper 
but harmless, in part because there had 

been "no presentation of irrelevant 

evidence about the grieving family"); Grant 

v. State, 703 P.2d 943, 945-47 (Okla. Crim. 
App. 1985)(prosecutor's statement that 

manslaughter victim was survived by eleven-

29



year old daughter held to be error although 
harmless) .

Simply stated, courts have sought to 

avoid the dangers of exposing juries to 

emotion-laden evidence of dubious or non­

existent relevance, both in capital and 
ordinary trials. Whether or not the 

Constitution requires this caution in non­

capital cases, see supra note 2, it is 

"essential in capital cases," Lockett v. 

Ohio, 438 U.S. at 605, where the Eighth and 
Fourteenth Amendments demand the highest 

degree of protection against subjectivity

and prejudice. E .g ., Gardner v._Florida,

supra ; Turner v. Murray, supra.

l50f course, under certain 
circumstances, evidence of the victim's 
character, good or bad, may bear 
sufficiently on issues pertinent to the 
trial to be admissible. See supra note 9. 
However, it is hard to envision any 
setting, in a criminal case, in which such 
matters as survivors' sorrow or physical or 
psychological symptoms are relevant. Cf.
People v.__Levitt, 156 Cal. App. 3d at 157,
203 Cal. Rptr. at 288 (evidence of this 
sort "is relevant to damages in a civil 
action").

30



3. Admission of Victim Impact Evidence 
Would Necessitate Admission of 
Expansive Proof of a Similar Type, 
Offered On Behalf of Defendants.______

A holding by the Court tolerating

victim impact evidence would necessarily
expand the scope of future penalty trials
beyond all reason. For if the Court gives

its imprimatur to a wholly new definition

of relevance in capital sentencing —  a

definition loosed from the traditional
moorings of the defendant's character,
background and crime —  it must also deem

relevant in mitigation proof whose reach
will be bounded only by the inventiveness
of counsel.

Take as an instance the subject of the 

victim's character. What principle of 

logic or fairness could deem it relevant 

that the deceased was a good person and at 
the same time irrelevant that he or she was 
bad? Were the state permitted to prove 

that a victim was educated and hard­

working, a defendant should be permitted to

31



show that a victim was a sixth-grade

dropout, who never worked a day in his 

life. Similarly, if it "matters" in the 

context of capital sentencing that one 

victim left a family who loved her, it also 
"matters" that another was hated by 
surviving relatives —  or, indeed, left no 

family at all. A defendant cannot 

constitutionally be foreclosed from 

offering evidence pertinent to the issues 

in a criminal trial, see, e.g., Chambers v. 

Mississippi, 410 U.S. 284 (1973), and the 

same rule applies at the penalty phase of a 

capital case. See, e.g., Green v. Georgia, 

442 U.S. 95 (1979)(per curiam).16

16Where the prosecution has presented 
evidence enhancing the victim, there can 
simply be no way to avoid the conclusion 
that the defendant has a Fourteenth 
Amendment right to "'deny or explain'" it, 
by proving, e.g., that the victim was 
unworthy or unmourned. See, e.g., Skipper
v. South Carolina, __  U.S. at ___ n. 1, 90
L . Ed . 2d at 7 , n.~ ~1 ; ___U.S. a t ____, 90
L.Ed.2d at 9-11 (Powell and Rehnquist, JJ., 
and Burger, CJ., concurring in the 
judgment) (capital defendant denied due 
process when he was barred from adducing

32



But if the spectacle of the defendant 
"trashing" the victim through proof and 

argument seems inappropriate, consider the 

further prospect of competing "victims" at 

penalty trials. Suppose, for example, that 

the Court sanctions introduction of a VIS 
containing (as here) graphic descriptions 

by family members of how the murder has 

destroyed their lives and thrown them into 

emotional turmoil. This very case,
reveals the type of "contest of weeping 

families" that would predictably follow. In 
exercising his right under Maryland law to 

make an unsworn statement to the jury, 

Booth sought to portray his family as 
victims:

evidence of his good behavior in custody to 
counter argument by prosecution that he 
would be a dangerous prisoner), quoting 
Gardner v. Florida, 430 U.S. at 362; see 
generally id. (due process violation where 
defendant was sentenced to death in part on 
the basis of confidential information, 
"which he had no opportunity to deny or ex­
plain" ) .

33



Now this case, it 
has had a terrible effect 
on me and my family and 
particularly my wife. My 

* wife has attempted
suicide. My grandfather 
had a stroke. He's past 
[sic] away. He's
deceased now as a result
of me facing a death
penalty in this case.
* * *

The effect of this thing 
on my grandmother has
been hard. She is under 
doctor's care. She has 
heart problems and I
think that if I am
sentenced to death, that 
woman would actually die.
I know i t .

(JA __; see also JA __). The prosecution

did not object to these comments—  

possibly because state law permits 

"allocution" by defendants on matters not 

confined to the record. See Booth, 306 Md. 
at 197-99, 507 A.2d at 1111 (discussing Md. 

Rule 4-343 (d)). It would seem, however,
that once VIS evidence of the sort admitted 

against Booth is permitted, the defendant 

must have the constitutional right to

34



present sworn statements or testimony by 

parents, grandparents, children and 

siblings to describe in detail their own 

physical and psychological "victimization," 

which could be expected to result from 
their loved one’s execution.17 If the 
deceased's weeping mother has a role to 

play at sentencing, by the same token so 

must the defendant's: either such feelings 
properly enter the capital calculus or they 

do not. Yet to sanction such proof would

17Nothing in the Eighth Amendment 
compels admission of such collateral 
evidence, untethered to proof about the 
defendant1s own better qualities. See, 
e.q., Coppola v. Commonwealth, 220 Va. 243, 
257 S.E.2d 797 (1979)(no error in excluding 
evidence of adverse effects on defendant's 
children of his prosecution for capital 
murder since it was irrelevant to 
mitigation), cert. denied, 444 U.S. 1103 
(1980); see general1y Skipper v South
Carolina. __U.S. at 90 L. Ed. 2d at 6, 8
n •2. See also Moore v. Zant, 722 F .2d at 
653 n.4 (defendant should not be permitted 
"to argue the victim's worthlessness in 
mitigation"); State v. Gaskins, 284 S.C. 
105, 128, 326 S .E .2d 132, 145 (1985)(no 
error in excluding confession of victim, a 
murderer under sentence of death, since 
victim's status "did not entitle 
[defendant] to kill him").

35



be tantamount to toppling the entire

edifice of rational capital sentencing

jurisprudence which the Court has taken

such pains to erect.
4. Victim Impact Statements Invite the 
Jury to Impose Sentences of Death for 
Constitutionally Impermissible Reasons.
Worse, if possible, than death

sentences that are entirely arbitrary in

the sense that a strike of lightning is

freakish, see Furman, 408 U.S. at 309-10

(Stewart, J., concurring), are those
imposed on invidious grounds: where the

lightning rod is race, religion, class or
wealth, or some other constitutionally

forbidden criterion. See Zant v. Stephens,

462 U.S. at 885; Furman, 408 U.S. at 249-51

(Douglas, J., concurring); id. at 310
(Stewart, J., concurring); id. at 363-66

(Marshall, J., concurring); Moore v. Zant,

722 F .2d at 645-46. In addressing the

necessarily capricious quality of victim

36



impact evidence, Judge Cole once again gave

eloquent voice to the basic problems:

What can be a more
arbitrary factor in the 
decision to sentence a 
defendant to death than 
the words of the victim's 
family, which vary
greatly from case to 
case, depending upon the 
ability of the family 
member to express his
grief, or even worse
depending upon whether
the victim has family at
all? In more practical 
terms, a killer of a
person with an educated 
family would be put to 
death, whereas in a crime 
of similar circumstances, 
the killer of a person
with an uneducated family 
or one without a family 
would be spared.

Booth. 306 Md. at 233, 507 A.2d at 1129 
(Cole, J., concurring in part and

dissenting in part). It is no great leap 
from the judge's perception of the 

arbitrariness of the listed factors to an 

understanding that these —  and others—  
have a highly discriminatory potential.

37



This is so for a number of reasons.

First, such characteristics as the 

articulateness of family members will often 

be the products of class or wealth, thereby 

serving as surrogates for impermissible 

status considerations that no one would 
claim should influence capital 

sentencing.18 Further, not only the mode of 

expression but also its substance typically 

encourages the jurors to consider the 

social value of the victim and "compare the 

relative worth of the victim and the 

defendant to society."19 See Brooks v. 

Kemp, 762 F.2d 1383, 1439 (11th Cir. 1985)

18It is instructive in this regard to 
compare the power of expression of the VIS 
in Booth, see infra at 40-45, with 
petitioner's admitted sense of inadequacy 
in allocution: "I've never been a real good 
speaker in front of people or anything like 
that. I'm not gifted with words or nothing 
like that." (JA ___).

19Cf. Moore v. Zant, 722 F.2d at 653 
n.4 (Kravitch, J., concurring in part and 
dissenting in part)(invoking "spectre" of 
statute listing as aggravating factor that 
"victim of the murder was a valuable member 
of society and of her family").

38



(en banc) (Clark, J., concurring in part 

and dissenting in part), vacated on other

grounds, __ U.S. ______ 92 L . Ed. 2d 732

(1986); Moore v. Zant, 722 F.2d at 652-53

(Kravitch, J., concurring in part and 
dissenting in part). Social worth, as the 
jurors view it, will also tend to vary with 

factors like education, class and wealth, 

whether of the victim or the survivors—  

and, regrettably, often with race or 
religion as well. See, e .g ,, People v. 

Holman, 103 111. 2d at 167-68, 469 N.E.2d

at 135 (death sentence vacated where 

prosecutor alluded to "religous moral 
fiber" of victim's mother as well as

accomplishments of victim); see generally

Turner v._Murray, supra (especially great
risk of racial discrimination in capital 

sentencing). By its very nature, this type 

of evidence invites the jury to "choose up 
sides," to empathize with the (usually more 

attractive) victim or the victim's family,

39



in particular where these are white, 

middle-class, and otherwise similar to most 

of the jurors.

II.
THE ADMISSION AT PETITIONER'S 
PENALTY TRIAL OF A LONG, 
IRRELEVANT, INFLAMMATORY VICTIM 
IMPACT STATEMENT VIOLATED
PETITIONER'S RIGHTS UNDER THE
EIGHTH AND FOURTEENTH AMENDMENTS.

Agent Michelle Swann of the Division of

Parole and Probation prepared a four-page,

single-spaced VIS in this case, reporting

the reactions of the victims' son,

daughter, son-in-law, and one

granddaughter. The statement is fully set

out in the Joint Appendix (JA ___) and is

excerpted in Petitioner's Brief. See id . at

___ (Statement of the Case). For present

purposes, a small sampling of the data
contained within this document —  which the

prosecutor in his closing urged the jurors

to "'read out loud'" in the jury room—
provides a graphic illustration of why this

40



kind of proof is anathema to rational 

capital sentencing.2®

First, the VIS was replete with 

emotional and incendiary comments. For 

example: "'The victims' son feels that his 
parents were not killed but were butchered

like animals'." (JA ___). The victims'

daughter "'saw the bloody carpet, knowing 

that her parents had been there, and she 

felt like getting down on the rug and

holding her mother'." (JA ___). "'[S]he
could never forgive anyone for killing them 

that way'" and "'states that animals 

wouldn't do this'." (JA___).
Interspersed among such remarks were 

statements amounting to calls for a death

20Booth, 306 Md. at 240, 507 A.2d at 
1133 (Cole, J., concurring in part and 
dissenting in part)(emphasis in original). 
In light of the prosecutor's exhortation 
and the fact that the VIS (and the rest of 
the presentence investigation report) 
comprised the entire state's case at 
sentencing, 306 Md. at 194, 507 A.2d at 
1109, the use of this grossly inflammatory 
statement could not have amounted to 
harmless error.

41



sentence,21 expressions of sentiments of 

revenge, and implicitly adverse judgments 

about the course of the prosecution. The 

daughter, for instance, "'attended the 

defendant's trial and that of the co- 
defendant because she felt someone should 
be there to represent her parents'." (JA 

). "'She doesn't feel that the people 

who did this would ever be rehabilitated 

and she doesn't want them to be able to do 

this again or put another family through
this'." (JA ___). The son "'doesn't think

anyone should be able to do something like

this and get away with it'." (JA __ ).

Further,
"the victims' family members 
note that the trials of the 
suspects charged with these 
offenses have been delayed for 
over a year and the
postponements have been very

^introduction of sentencing 
recommendations in a capital penalty trial 
is forbidden by Maryland law. Md. Code, 
art. 27, section 413(c)(iv). See Lodowski, 
302 Md. at 775, 490 A.2d at 1271 (Cole, J., 
concurring).

42



hard on the family
emotionally.... The family 
wants the whole thing to be 
over with and they would like
to___see___swift and lust
punishment ."

(JA ___)(emphasis added).
In addition to quoting more comments of 

a similar nature, the VIS recounted the 
various physical and psychological problems 
experienced by the interviewees as well as 
by other members of the family. The
statement noted, for instance, that a 
granddaughter with whom the agent had not 
spoken had had her wedding, honeymoon and 
associated memories ruined by the tragic
events of the time {JA ___); different
grandchildren (also not interviewed by the 
agent) were poignantly reported as having 
first learned of their grandparents' death 
via television. (JA ___).

The VIS also described the victims in 
extremely laudatory terms as "'amazing'" 
people, who enjoyed a "'very close 
relationship'," "'had made many devout

43



friends'" (JA ), and whose funeral was
"'the largest in the history'" of the
funeral home. (JA ___). Finally, it
contained editorial comments by Agent 
Swann22 and global statements by the

22See, e.q.: "'Perhaps [the grand­
daughter] described the impact of the 
tragedy most eloquently when she stated 
that it was a completely devastating and
life altering experience'." (JA ___). The
agent's "peroration," with which the VIS 
ended, was as follows:

"It became increasingly 
apparent to the writer as 
she talked to the family 
members that the murder 
of Mr. and Mrs. Bronstein 
is still such a shocking, 
painful and devastating 
memory to them that it 
permeates every aspect of 
their daily lives. It is 
doubtful that they will
ever be able to recover
fully from this tragedy
and not be haunted by the
memory of the brutal
manner in which their
loved ones were murdered
and taken from them."

(JA   ) (emphasis added). C_f. State v.
Rushing, 464 So.2d 268, 275 (La. 1985),
cert, denied, _ _  U . S . ___, 90 L. Ed. 2d 703
(1986) (error to admit testimony that
killing was one of most vicious policeman 
had ever seen since this was tantamount to

44



survivors that their lives would never be
the same again.

* * *

No one could remain untouched by the

genuine suffering conveyed in the 
statement. But that is, in fact, our 
point. This type of emotional, inflammatory 

evidence "has no place in a statutory 

weighing process which owes its very 
existence to the constitutional mandate 
that the death penalty must not be

administered in an arbitrary or capricious 

manner." Booth, 306 Md. at 241, 507 A.2d at 

1133 (Cole, J., concurring in part and 
dissenting in part). Survivors (and

understandably sympathetic parole and 

probation agents) cannot be permitted to 
function as supplemental prosecutors, 
raising a hue and cry for vengeance.

Because petitioner's sentence of death very

opinion that alleged aggravating factor 
existed).

45



likely was -- and surely appeared to be-- 

based on caprice and emotion, not reason, 
this Court must overturn it.

CONCLUSION

The Court should reverse the judgment 
of the Court of Appeals of Maryland.

Respectfully submitted,

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 
JOHN CHARLES BOGER 
VIVIAN BERGER*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

ANTHONY G. AMSTERDAM
New York University Law 

School
40 Washington Square South 
New York, New York 10012 
(212) 598-2638

Attorneys for the NAACP 
Legal Defense and 
Educational Fund,_Inc.

By:_____________
Vivian Berger

*Counsel of Record

Dated: December 3, 1986

46



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177