Ohio v. Huertas Motion for Leave to File and Brief Amici Curiae
Public Court Documents
December 15, 1990

Cite this item
-
Brief Collection, LDF Court Filings. Ohio v. Huertas Motion for Leave to File and Brief Amici Curiae, 1990. a7055021-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9a607242-7dde-4b6c-a4a9-15795b7ab908/ohio-v-huertas-motion-for-leave-to-file-and-brief-amici-curiae. Accessed June 13, 2025.
Copied!
No. 89-1944 In the Supreme ( ta r t of ttjB Bnitrti October Term, 1990 State of Ohio, Petitioner, Ediberto H uertas, Respondent. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF MURDER VICTIMS’ FAMILIES FOR RECONCILIATION AS A M IC I C U RIAE IN SUPPORT OF RESPONDENT Vivian Berger* Columbia Law School 435 West 116 Street New York, New York 10027 (212) 854-5521 ♦Counsel of Record No. 89-1944 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1990 STATE OF OHIO, Petitioner, v. EDIBERTO HUERTAS, Respondent. On Writ of Certiorari to the Supreme Court of Ohio MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF MURDER VICTIMS' FAMILIES FOR RECONCILIATION AS AMICI CURIAE IN SUPPORT OF RESPONDENT Pursuant to Rule 37.4 of the Rules of this Court, amici move for leave to file the attached brief amicus curiae in support of respondent Ediberto Huertas. A motion is required because petitioner has failed to consent to any amicus curiae filing. Murder Victims' Families for Reconciliation ("MVFR") is a national organization of more than one hundred families of murder victims dedicated to the development of effective methods for deterring homicide and for healing the injuries left by homicide. The director of the organization, Pat Bane, lives in Syracuse, New York, but member families reside in many other states. MVFR advocates for the families of homicide victims and for legislation supportive of these families. MVFR is interested in this case, because it believes the rule of Booth v . Maryland. 482 U.S. 496 (1987), to be a rule that ultimately benefits homicide victims and their families. It believes that Booth assures that all homicide victims are treated with equal dignity, and that the loss of any life cannot and 2 should not be diminished because of the individual characteristics of the victim. Further, MVFR believes that the impact of a homicide upon the victim’s survivors is not effectively addressed or redressed in capital criminal proceedings. Finally, MVFR believes that, without the Booth rule, survivors would be urged to present their loss and their grief in a forum particularly ill-suited to respond to them, yet holding our an illusory capacity to respond. In the long run, the healing process needed by survivors would be deferred. Accordingly, MVFR requests that the Court hear its concerns on the issue whether Booth should be overruled. 3 Respectfully submitted, 1 X V A i U I Columbia Law School 435 West 116 Street New York, NY 10027 (212) 854-5521 *Counsel of Record December 17, 1990 4 QUESTION PRESENTED Should the Court overrule Maryland? Booth v. i TABLE of contents Page QUESTION PRESENTED 1 TABLE OF CONTENTS ll INTEREST OF AMICI CURIAE 1 SUMMARY OF ARGUMENT 1 ARGUMENT........................ ..... THE USE OF VICTIM IMPACT EVIDENCE AT PENALTY TRIALS IN CAPITAL CASES THREATENS TO HARM INDIVIDUAL VICTIMS AND TO PROMOTE RELIANCE UPON INVIDIOUS DISTINCTIONS AMONG VARIOUS GROUPS OF VICTIMS IN THE CAPITAL SENTENCING PROCESS.... .......... 3 1. ABANDONMENT OF THE RULE OF BOOTH WOULD LEAD TO DEFENSE ATTACKS ON VICTIMS AND INFLICT ADDED PAIN ON SURVIVING FAMILY MEMBERS AND FRIENDS......... 6 2. ABANDONMENT OF THE RULE OF BOOTH WOULD LEAD T O I N C R E A S E D CONSIDERATION, AS A SENTENCING FACTOR, OF THE CLASS, CASTE AND RACE OF VICTIMS...................... 28 CONCLUSION 44 ii TABLE OF AUTHORITIES Cases Page Blystone v. Pennsylvania, 110 S. Ct. 1078 (1990)...... 17 Blanco v. Dugger, 691 F. Supp. 308 (S.D. Fla. 1988)...... 39 Bolder v. Armontrout, 713 F. Supp. 1558 (W.D. Mo. 1989)--- ...---- 18 Booth v. Maryland, 482 U.S. 496 (1987)...................... passim Boyde v. California, 110 S. Ct. 1190 (1990)..... 16,17 Brady v. Maryland, 373 U.S. 83 (1963)....................... 18 Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc), vac'd, 478 U.S. 1016 (1986)...... 26 Byrne v. Butler, 845 F.2d 501 (5th Cir.), cert, denied, 487 U.S. 1242 (1988)..... 36 California v. Brown, 479 U.S. 538 (1987)...................... 8 California v. Ramos, 463 U.S. 992 (1983)...................... 28 Chambers v. Mississippi, 410 U.S. 284 (1973)................ 3,16 Clemons v. Mississippi, 110 S. Ct. 1441 (1990)................ 37 iii Coppola v. Commmonwealth, 220 Va. 243, 257 S.E. 2d 797 (1979), cert, denied, 440 U.S. 1103 (1980) .. 27 Daniels v. State, 561 N.E.2d 487 (Ind. 1990).................... 38 Eddings v. Oklahoma, 455 U.S. 104 (1982) ................. 7 Enmund v. Florida, 458 U.S. 72 (1972)................ 4 '7 Franklin v. Lynaugh, 487 U.S. 164 (1988)................... I6 n - 6 Gardner v. Florida, 430 U.S. 349 (1977) ........... ......... 7 '13 Grant v. State, 703 P.2d 943 (Okla. Crim. App. 1985)..... 27 Green v. Georgia, 442 U.S. 95 (1979) .................. ....... 4 '16 Gregg v. Georgia, 428 U.S. 153 (1976).................... 9 Hayes v. Lockhart, 869 F.2d 358 (8th Cir.),vac'd, 109 S. Ct. 3181 (1989)........ 33,36 Henderson v. State, 234 Ga. 827, 218 S.E.2d 612 (1975)......... 4 '20 Hill v. Thigpen, 667 F. Supp. 314 (N.D. Miss. 1987), as modified on denial of reh'g and reh'g en banc, 861 F .2d 89 (5th Cir. 1989), vac'd, 111 S. Ct. 28 (1990).... iv Lockett v. Ohio, 438 U.S. 586 (1978)..... ............... . 8,16 Lockhart v. McCree, 476 U.S. 162 (1986)...................... 41,n.6 Lodowski v. State, 302 Md. 691, 490 A.2d 1228 (1985), vac'd, 475 U.S. 1078 (1986)............ 22,n.8 McCleskey v. Kemp, 481 U.S. 279 (1987)..................... 5,29 41,n.13, & n.6 Mills v. Maryland, 486 U.S. 367 (1988)..................... 5 & n. 2 Moore v. Zant, 722 F.2d 640 (11th Cir. 1983), on reh1g en banc, 809 F.2d 702, cert, denied, 481 U.S. 1054 (1987).............. passim Morrison v. State, 551 So.2d 435 (Ala. Grim. App. 1989), cert, denied, 110 S. Ct. 1938 (1990) ............ 36 Olden v. Kentucky, 488 U.S. 227 (1988)...................... 17 Penry v. Lynaugh, 109 S. Ct. 2934 (1989)...... 8 People v. Erickson, 117 111. 2d 271, 513 N .E .2d 367 (1987), cert, denied, 486 U.S. 1017 (1988)........... 27 People v. Holman, 103 111. 2d 133, 469 N.E.2d 119 (1984), cert, denied, 469 U.S. 1220 (1985)....... 38 v 20 People v. Levitt, 156 Cal. App.3d 500, 203 Cal. Rptr. 276 (1984).......... Rock v. Arkansas, 483 U.S. 44 (1987).......................... 16 Saffle v. Parks, 110 S. Ct. 1257 (1990)...................... 8 Skipper v. South Carolina, 476 U.S. 1 (1986).............. 6,13,16 South Carolina v. Gathers, 109 S. Ct. 2207 (1989)........ passim State v. Butler, 277 S.C. 452, 290 S .E .2d 1, cert, denied, 459 U.S. 932 (1982)....... 39 State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132, cert, denied, 471 U.S. 1120 (1985)........ 21 State v. Huertas, 51 Ohio St.3d 22, 553 N.E.2dl058 (1990)......... 11 State v. Oliver, No. 49613 (Ohio Ct. App. Oct. 17, 1985) (LEXIS, States library, Ohio file)............ 20,32 Turner v. Murray, 476 U.S. 27 (1986)............ 29 United States v. Bagley, 473 U.S. 667 (1985)............... ...... 18 n.7 Zant v. Stephens, 462 U.S. 862 (1983).......................... 6,7, 8,29 vi Constitution. Statutes, and Rules U.S. Const., amend. VIII.......... 8,16 n . 6 , U.S. Const., amend. XIV...... . 2 9 Fed. R. Evid. 404 (2).............. 14 n.5 O.C.G.S. §§ 17-10-1.1, 17-10-1.2 (Supp. 1986).......... 21 n.8 Okla. Stat. Ann. tit. 22, § 982 (1986).............. . 21 n.8 Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 (1982)........... 43 Other Authorities Belkin, Texas Judge Eases Sentence For Killer of 2 Homosexuals, N.Y. Times, Dec. 17, 1988, § 1, at 8, col. 5 .......................... 33 Brief Amici Curiae of the NAACP Legal Defense and Educational Fund, Inc. and the American Jewish Congress, South Carolina v. Gathers, 109 S. Ct. 2207 (1989)......... 32 n. 12 Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. In Support of Petitioner, Booth v. Maryland, 482 U.S. 496 (1987).......................... 29 n. 11 Brief of the South Carolina Public Defenders' Association and the South Carolina Death Penalty Resource Center as Amici Curiae vii in Support of Respondents, South Carolina v. Gathers, 109 S. Ct. 2207 (1989)........ 40 Brief for Respondent, Booth v. Maryland, 482 U.S. 496 (1987)............ 28 Carter, When Victims Happen to Be Black, 97 Yale L. J . 420 (1988)................ 33 n.13 Comment, The Victim's Veto: A Way to Increase Victim Impact on Criminal Case Dispositions, 77 Calif. L. Rev. 417 (1989)...................... 22 n. 8 Cong. Globe, 39th Cong., 1st Sess. (1866)............... 32 Curriden, Bobby Lee Cook ■— Georgia Maverick, A.B.A.J. 68 (Mar. 1989) . .................... 23 n.9 Dane & Wrightsman, Effects of Defendants' and Victims' Characteristics on Jurors' Verdicts, in The Psychology of the Courtroom (1982)...... . 33 n. 13 Henderson, The Wrongs of Victim's Rights, 37 Stan. L. Rev. 937 (1985)..................... 10,8 Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv.L. Rev. 1338 (1988)....--- ------.33 n.13 viii Kilpatrick & Otto, Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34 Wayne L. Rev. 7 (1987)..... 9,10 Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment, 74 Cornell L. Rev. 655 (1989)..... 33 n. 13 ix No. 89-1944 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1990 STATE OF OHIO, Petitioner, v . EDIBERTO HUERTAS, Respondent. On Writ of Certiorari to the Supreme Court of Ohio BRIEF OF MURDER VICTIMS' FAMILIES FOR RECONCILIATION AS AMICI CURIAE IN SUPPORT OF RESPONDENT INTEREST OF AMICI CURIAE The interest of amici is described in the motion for leave to file this brief. ■qTTMMARV OF ARGUMENT Victims of crime and their survivors do not speak with a single voice. Here, 1 while a number of victims' advocates call on the Court to overrule its recent decisions in Booth v. Maryland, 482 U.S. 496 (1987) , and South Carolina v. Gathers, 109 S. Ct. 2207 (1989), amici — who also represent victims — urge adherence to the rule of these cases. We do so out of concern that making victim impact evidence admissible in capital sentencing proceedings will often hurt, not benefit, victims. Departure from Booth would allow defendants to rebut proof of a victim's good character and her survivors' grief with evidence and argument contending that the victim was, in fact, neither good nor grieved. It would allow defendants to place their victims' character on trial even when the prosecution did not do so. Worse, by treating evidence about the victim's character and her family's sense of loss as relevant to capital sentencing even 2 though it does not bear upon the character or record of the offender or the circumstances of the offense, retreat from Booth and Gathers would demean victims as a class by encouraging sentencers to base decisions of life or death on factors such as race and social status. ARGUMENT THE USE OF VICTIM IMPACT EVIDENCE AT PENALTY TRIALS IN CAPITAL CASES THREATENS TO HARM INDIVIDUAL VICTIMS AND TO PROMOTE RELIANCE UPON INVIDIOUS DISTINCTIONS AMONG VARIOUS GROUPS OF VICTIMS IN THE CAPITAL SENTENCING PROCESS. The narrow ground of the Ohio Supreme Court decision below and the particular facts of this case make it an improvident occasion to reconsider Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers. 109 S. Ct. 2207 (1989). The case can easily be resolved without addressing the continuing validity of those 3 precedents.1 Petitioner, however, does urge the overruling of Booth and Gathers as an alternative ground for reversal; and various amici have espoused that course. See Petitioner's Brief on the Merits 4 9- 51; e.q.. Brief of Washington Legal Foundation et al. as Amici Curiae in Support of Petitioner ("WLF Brief"); Brief for the United States as Amicus Curiae Supporting Petitioner ("US Brief"). It is, of course, apparent that a majority of the Justices of this Court have joined 1 See, e.q.. Respondent's Brief in Opposition 3 n.l (arguing that Ohio law pre-dating Booth. which prohibits victim impact evidence in capital cases, independently controls the decision below); Motion to Dismiss Certiorari as Improvidently Granted (arguing that Ohio law forbidding opinion testimony on the propriety of a particular sentence in a capital case provides a sufficient basis for decision); see generally Petition for Writ of Certiorari 21 (arguing that this case affords "a unique chance" for the Court to consider the role of victims in the criminal justice system "without overruling Booth or Gathers"). 4 opinions critical of Booth. See Booth, 486 U.S. at 515-19 (White, J. , dissenting); id. at 519-21 (Scalia, J., dissenting); Mills v. Maryland. 486 U.S. 367, 395-98 (1988) (Rehnquist, C.J., dissenting); Gathers. 109 S. Ct. at 2211- 17 (O'Connor, J., dissenting); id. at 2217-18 (Scalia, J., dissenting).2 In light of these circumstances, if the Court fails to dispose of the case on narrower grounds, amici (who have themselves suffered the shattering effects of violent crime) wish to point out that concern for victims and their survivors provides no cause to abrogate the rule announced in Booth. Far from advancing victims' interests, the converse rule would constitute a step backward for "victims' rights" because allowing the 2 Justice Kennedy joined the Chief Justice's dissent in Mills and Justice O'Connor's dissent in Gathers. 5 kind of prosecution evidence and argument barred in Booth and Gathers would require allowing the same type of evidence and argument when they are offered by the defense. Such permissiveness risks gratuitous harm to individual victims. It also threatens to inject distinctions of caste and class into the capital sentencing process. Thus, while amici have no interest in which party prevails in this matter, we file on the side of respondent Huertas since it is petitioner Ohio that invites the Court to overrule Booth — a course of action we strongly oppose, for reasons more fully set forth below. 1. ABANDONMENT OF THE RULE OF BOOTH WOULD LEAD TO DEFENSE ATTACKS ON VICTIMS AND INFLICT ADDED PAIN ON SURVIVING FAMILY MEMBERS AND FRIENDS. A bedrock tenet of modern capital punishment law is that the decision to impose death must both "'be, and appear to 6 be, based on reason rather than caprice or emotion.'" Zant v. Stephens. 462 U.S. 862, 885 (1983), quoting Gardner v. Florida. 430 U.S. 349, 358 (1977). This interest in sentencing rationality has mainly been served by the Court's insistence that the sentencing body (usually a jury) make an individualized determination grounded on the defendant's character and the circumstances of the crime. See, e.g., Stephens. 462 U.S. at 879; Eddinas v. Oklahoma. 455 U.S. 104, 110-12 (1982). By anchoring the choice of penalty to factors concerning the offender and the offense, the Court has sought to make the life or death decision turn on the "personal responsibility and moral guilt" of the defendant, Enmund v. Florida, 458 U.S. 782, 801 (1982), rather than on considerations "that are constitutionally impermissible or totally irrelevant to the 7 sentencing process." Stephens, 462 U.S. at 885. Although there is no perfect procedure for determining when to impose death, Lockett v. Ohio. 438 U.S. 586, 605 (1978), the Court has insisted that this general approach is indispensable to achieving the Eighth Amendment goal of a "reasoned moral response" by the sentencer. See, e.q., Saffle v. Parks, 110 S. Ct. 1257, 1263 (1990), quoting California v. Brown. 479 U.S. 538, 545 (1987) (O'Connor, J., concurring) (emphasis in original); Penrv v . Lynaugh, 109 S. Ct. 2934, 2947 (1989) (also quoting Brown concurrence). When "the jury's attention is directed to the specific circumstances of the crime ... [and t]he jury's attention is focused on the characteristics of the person who committed the crime ...'the [sentencing] discretion to be exercised is controlled by clear and objective standards so as to 8 produce non-discriminatory application.'" r,reaa v. Georgia. 428 U.S. 153, 197-98 (1976) (opinion of Stewart, Powell and Stevens, JJ.). The majority in Booth saw the principles it announced ■— ■ that information on victim impact is generally irrelevant to capital sentencing and "creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner" — as fitting comfortably within the ambit of the doctrines stated above. 482 U.S. at 502-03. The dissenting Justices disagreed. See, e.g., id. at 519-20 (Scalia, J . , dissenting) (respecting relevance); id. at 517-18 (respecting arbitrariness). We concentrate, however, on other, largely non-divisive aspects of Booth to develop our point that sanctioning victim impact evidence will hurt more than help victims. 9 Those who would overturn Booth believe that its rule does a disservice to legitimate interests of victims. They contend that entitling the defendant to introduce all mitigating factors while forbidding the state to bring to the sentencing body's attention the full range of harms to the victim's family and friends and society at large, arising from the deceased's death, skews the picture presented to the sentencer3 and is thus unfair to victims. See, e.g., Kilpatrick & Otto, Constitutionally Guaranteed Participation in Criminal Proceedings for Victims: Potential Effects on Psychological Functioning, 34 Wayne L. Rev. 7, 27 (1987); Henderson, The Wrongs 3 See, e.g.. id. at 520-21 (Scalia, J. , dissenting); Gathers, 109 S. Ct. at 2214 (O'Connor, J., dissenting); Motion for Leave to File Brief of Amicus Curiae in Support of the Appellate Committee of The California District Attorneys Association at 9; US Brief 17-18 &n.l0. 10 of Victim's Rights, 37 Stan. L. Rev. 937, 1002 (1985) ("Henderson") (commenting on, but not sharing, this viewpoint). At first blush, this seeming imbalance may appear troubling. But further reflection reveals that the symmetry envisioned by Booth's opponents is false. A true symmetry, already built into the penalty trial, arises from the prosecution's ability to "counteract[] the mitigating evidence," see Booth, 482 U.S. at 517 (White, J. , dissenting), not by dwelling on the deceased's unique qualities but by offering evidence and argument impugning the case in mitigation — as the state did in the instant case. See State v. Huertas. 51 Ohio St. 3d 22, 25-26 &n. 2, 553 N.E.2d 1058, 1064 &n.2 (1990) / 4 As Judge Kravitch correctly noted in Moore v. Zant. 722 F. 2d 640, 651 n.l (11th Cir. 1983) (Kravitch, J., concurring in part and dissenting in part), on rehjg 11 More important from our perspective, the converse rule would be worse for victims. Hyperbole about the purported promotion by Booth and Gathers of defendants' rights over victims' rights, see, e.q.. WLF Brief 2, 15, cannot conceal the fact that, in an adversary system such as ours, abandonment of Booth will inevitably lead to critical scrutiny of en banc. 809 F.2d 702, cert, denied, 481 U.S. 1054 (1987): The [victim impact] evidence at issue may not be fairly characterized as properly rebutting the mitigating evidence offered by the defendant in his bid for jury sympathy. For the victim's qualities have nothing to do with whether the circumstances of the defendant's life militate in favor of leniency. Rather, they provide an independent, albeit invalid, basis for a harsher sentence. Of course, the state may also counter the defendant's evidence by introducing all pertinent valid aggravating factors: i.e., those that genuinely bear on "the defendant's record, characteristics, and the circumstances of the crime." See Booth. 482 U.S. at 502. 12 victims' lives — their characters, attributes and human relationships. Members of the Court on both sides of Booth readily acknowledged that evidence about victims cannot be admitted at the behest of one litigant and excluded whenever offered by the other. "[I]f the state is permitted to introduce evidence of the victim's personal qualities, it cannot be doubted that the defendant also must be given the chance to rebut this evidence." Id. at 506-07 (footnote omitted), citing Gardner v. Florida. 430 U.S. 349 (1977); see also id. at 518 (White, J., dissenting); Skipper v. South Carolina, 476 U.S. 1, 5 n.l (1986); id. at 9 (Powell, J., concurring in the judgment). Due process demands no less. Since admitting proof of a victim's goodness and her relatives' pain on account of her loss must logically entail admitting proof of a victim's badness and 13 her relatives' indifference to her demise, amici urge the Court not to upset the rule of Booth prohibiting all such evidence.5 "The prospect of a 'mini-trial' on the victim's character is more than simply unappealing" or distracting to jurors, as the majority in Booth noted. 482 U.S. at 507. It is also demeaning to the victim's memory and therefore should be offensive to those who truly have victims' interests at heart. The fact that some defendants may not wish to rebut victim impact evidence for Under traditional evidentiary principles which are left untouched by Booth, the victim's attributes may be relevant at the guilt or penalty phase for some purpose other than to show that the defendant deserves to die because the deceased was a fine person or left grieving parents or children. In those circumstances, proof of the relevant characteristics is, of course, admissible. See id. at 507 n.10; Moore. 722 F.2d at 651 (Kravitch J., concurring in part and dissenting in part); see, e.a.. Fed. R. Evid. 404(2) (giving instances in which the victim's character is independently relevant). 14 tactical reasons, see Brief of Amicus Curiae, The State of California, in Support of Petitioner 17-18; Booth, 482 U.S. at 518 &n.3, should not obviate concern over the adverse effects on victims in general of abandoning Booth. For it will be precisely when a victim's life has not been unimpeachable that defense counsel will be likely to risk impeaching it. And just as Booth laid down a doctrine of constitutional irrelevance for evidence of this nature when offered solely to enhance the defendant's "deathworthiness" in the eyes of the jury, the converse rule would establish a new definition of relevance in capital sentencing — unanchored in the traditional moorings of the offender's character and record and the circumstances of the offense — which would itself assume constitutional dimensions. That conclusion flows from the indisputable 15 right of the accused to offer pertinent evidence in her defense, whether at a guilt trial, see , e . q . , Chambers Mississippi. 410 U.S. 284 (1973); Rock, v Arkansas. 483 U.S. 44 (1987), or a capital penalty proceeding. See, e.q.. Green v. Georgia. 442 U.S. 95 (1979). Accordingly, since the same principle that makes a victim's moral and familial worthiness relevant evidence in aggravation makes his moral and familial worthlessness relevant evidence in mitigation — "in the sense that [it] might serve 'as a basis for a sentence less than death,'" Skipper. 476 U.S. at 4- 5, quoting Lockett. 438 U.S. at 6046 — 6 While five members of the Court may now have come to believe that "[s]tates are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty,'" Bovde v. California. 110 S. Ct. 1190, 1196 (1990); cf. Franklin v._ Lvnauqh. 487 U.S. 164, 181 (1988) (plurality opinion), the Court continues 16 defendants in a post-Booth era would have free rein to assassinate the characters of the dead even in cases in which the state has made no effort to extol their characters. Judicial attempts to shield individual victims against this sort of disparagement would merely spawn constitutional litigation without offering any real protection. See Olden v. Kentucky. 488 U.S. 227, 232 (1988). Besmirching the memory of the deceased whenever possible would become an unavoidable, if highly distasteful, obligation of competent defense attorneys. The interests of victims would scarcely be served by inaugurating a new regime in which lawyers might risk being held to adhere to the Eighth Amendment tenet that the jury must "be able to consider and give effect to all relevant mitigating evidence." See Bovde. 110 S. Ct. at 1196 (citations omitted); Blystone v. Pennsylvania. 110 S. Ct. 1078, 1083 (1990) . 17 constitutionally inadequate unless they attempted to prove "that the victim was of dubious moral character, was unpopular, or was ostracized from his family," and thus unmourned. Booth, 482 U.S. at 507; cf. Bolder v. Armontrout. 713 F. Supp. 1558, 1568-69 (W.D. Mo. 1989) (in a post-Booth case, the court rejected a claim of ineffective assistance based on counsel's failure to offer proof of the victim's propensity for violence and bad character because the proof would have been inadmissible).7 Equally, those needs would be ill served by changing the law so as to encourage lawyers "to argue the victim's worthlessness in mitigation," see Moore, 722 F . 2d at 653 n.4 (Kravitch, J. , 7 Indeed, under this new order, a prosecutor would presumably incur a duty under Brady v. Maryland. 373 U.S. 83 (1963), and United States v. Bagiev. 473 U.S. 667 (1985), to provide the defense with all information of conceivable use in attacking the victim. 18 concurring in part and dissenting in part), or to demand that sentencing jurors be instructed to consider — as mitigating factors — the chronic unemployment, lack of friends, or financial dishonesty of the deceased. While other amici seem to regard with equanimity the notion that "[a]n individual convicted of murdering a drug dealer, for example, could make a reasonable claim in mitigation that his act actually benefited society by ridding the community of a merchant of violence and death," WLF Brief 17, we do not. As victims' advocates, we believe that sentencers should focus on the offender's culpability rather than try to assess the "relative blameworthiness" of the person killed, see Henderson at 991, in cases in which the latter's qualities shed no light upon the offense. We therefore urge the Court to keep the lid on the Pandora's box 19 of evidence of victims' moral and familial worth. This preference not only jibes with victims' interests but also is consistent with long-established doctrine. Far from being required to be admitted at the defense's behest by the Eighth Amendment or due process, such evidence ■— when offered by prosecutors or defendants — was routinely barred under local law even prior to Booth. See, e.g., People— v_;_ Levitt, 156 Cal. App.3d 500, 517, 203 Cal. Rptr. 276, 288 (1984) (state's evidence of family's bereavement held irrelevant); Henderson v. State. 234 Ga. 827, 828, 218 S .E .2d 612, 614 (1975) (in general, evidence of deceased's character is inadmissible at murder trial); State v^ Oliver. No. 49613 (Ohio Ct. App. Oct. 17, 1985) (LEXIS, States library, Ohio file) (state's evidence of victim's niceness and intelligence and defense evidence of 20 victim’s homosexual acts both held inadmissible); State v. Gaskins, 2S4 S.C. 105, 128, 326 S .E .2d 132, 145, cert, denied. 471 U.S. 1120 (1985) (no error in excluding confession of victim, a death- sentenced murderer, proffered by defense since victim's status "did not entitle [defendant] to kill him"). A number of states have passed legislation in the last decade authorizing or mandating victim impact statements. Although this fact reflects some change in the sentiment that a defendant's sentence should not be enhanced because of "the perception that the victim was a sterling member of the community," see Booth, 482 U.S. at 506, there has been no parallel change in the view that a victim's "questionable character," id., should not 21 operate to lessen a sentence. Legislatures may act in such a one-sided fashion, but constitutional rules cannot. While Booth's dissenters recognized the theoretical possibility that defense lawyers would introduce "bad victim" evidence, they seemed to consider that prospect remote — ■ perhaps because they did not focus on the use of such evidence other than in response to the state's "good victim" evidence. See id. at 518 & n. 3 (White, J., dissenting).8 9 No one on 8 For a list of some of these statutes, see Lodowski v. State, 302 Md. 691, 744-45 &n.3, 490 A.2d 1228, 1260 n.3 (1985), vac'd. 475 U.S. 1078 (1986) (Cole, J., concurring) (listing such statutes). See also Comment, The Victim's Veto: A Way to Increase Victim Impact on Criminal Case Dispositions, 77 Calif. L. Rev. 417, 427 (1989). Notably, even before Booth, several jurisdictions excluded capital penalty trials from the ambit of such laws. See. e .a ., O.C.G.S. §§ 17-10-1.1, 17-10-1.2 (1990); (Ga.); Okla. Stat. Ann. tit. 22, § 982 (1986). 9 The prospect is, in fact, far from remote. Bobby Lee Cook, the well-known criminal lawyer who has defended more than 22 the Court has suggested approval, of the type of mitigating claim envisioned by the Washington Legal Foundation to the effect that service in the role of private executioner of drug dealers might militate against death for the killer. See supra at 18-19. Yet since such victim denigrating arguments would predictably follow repudiation of the rule of Booth (and would undoubtedly be employed against non-criminal victims as well if they possessed tarnished, rather than sterling, characters), a sober appraisal of victims' 350 murder cases is quoted as saying that the jury has two concerns in a murder case. "'Number one, should the victim have been killed? Did he deserve to die? And secondly, was your man the right man for the job?'" Curriden, Bobby Lee Cook --- Georgia Maverick. A.B.A.J. 68, at 68 (Mar. 1989). While these considerations may be legally relevant at the guilt stage in some homicide cases, such as those involving a claim of self- defense, the overruling of Booth would encourage defense lawyers to act upon them in all cases — whether they are legally relevant or not. 23 interests plainly calls for the rule's retention. Finally, even when victims have lived unimpeachable lives, and friends and relatives have little reason to fear attack on the memory of their loved one, overruling Booth would still threaten survivors with unnecessary pain. Indeed, especially in such cases, prosecutors can be expected to pressure persons close to the victim to take the stand and testify to the deceased's "outstanding personal qualities" and to how deeply she would be missed. See Booth, 482 U.S. at 499. At the very least, the state's attorney will invite if not importune such testimony - - thereby creating in many individuals a sense that they owe the victim an obligation to speak, whether or not they want to do so. While some survivors will regard the experience as cathartic, others will not. 24 See Henderson at 979-80. The latter may wish to avoid appearing at trial at all or, in the case of those who have to give evidence at the guilt phase (like Mrs. Harris, the mother here), avoid reappearing at the penalty stage. For reluctant witnesses,10 the need to dwell yet again on their loss will only lead to renewed suffering and impede the healing process. And even survivors who are willing to attend court proceedings and dredge up their pain for the jury may find that they must compete as "victims" with family The record suggests that Mrs. Harris was such a witness. See, e.g. , Victim's Statement in Presentence Investigation (J.A. 162) ("the victim's parents stated they are tired of rehashing over [sic] the details and wished that people would leave them alone"); Testimony of Mrs. Harris at Penalty Trial (J.A. 137) (in response to mother's emotional outburst, defense counsel conceded: "I know you don't want to talk about it any more ____") ; Trial Record 11 (in sidebar, prosecutor mentioned pressure by the victim's family to offer a plea). 25 members of the defendant, mourning the potential execution of their son or grandson, father or brother. See, e.g. , Brooks v. Kemp. 762 F.2d 1383, 1439 (11th Cir. 1985) (en banc), vac'd . 478 U.S. 1016 (1986) (in penalty summation, prosecutor compared suffering of victim's and defendant's families).11 If Booth is overruled, so too will be those decisions In Booth. the defendant delivered an allocution to the jury emphasizing the "terrible effect" of the criminal proceeding on him and his family: the attempted suicide of his wife, his grandfather's death, and his grandmother's anticipated death if he were sentenced to be executed. See Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. In Support of Petitioner, Booth v. Maryland. 482 U.S. 496 (1987). In a variation on this theme, Huertas's counsel elicited from the victim's mother at the penalty trial that respondent's grandparents (who had raised him) were terribly hurt because of "what their son did to [her] son." (J.A. 135) The prosecutor then brought out that the victim's death could not have hurt Huertas's family as much as her "because they still have Eddie; and I don't have Ralph" — in this fashion, expressly creating a contest of grief between the families. (J.A. 143) 26 in which courts wisely rejected proof of familial sorrow on the side of the defendant as well as the victim — so long as, in the former case, the proof was not tethered to genuinely mitigating evidence about the defendant's better characteristics. Compare Coppola-- y_i_ Commmonwealth. 220 Va. 243, 257 S.E. 2d 797 (1979), cert, denied. 440 U.S. 1103 (1980) (court held irrelevant and inadmissible evidence of the adverse effects on defendant's children of his prosecution for capital murder) with Grant v. State. 703 P.2d 943, 945-47 (Okla. Crim. App. 1985) (prosecutor's statement that victim left an eleven-year old daughter held error, though harmless) ; cf. People v. Erickson. 117 111.2d 271, 303-04, 513 N.E.2d 367, 381 (1987), cert, denied. 486 U.S. 1017 (1988) (Booth supports conclusion that trial court properly refused to consider feelings of 27 defendant's family in imposing sentence). In sum, from the vantage of many individual victims (and their survivors, who care for them) , the rule of Booth safeguards both the memory of the dead and the feelings of the living. We now proceed to show how Booth also protects victims in general, and the moral integrity of capital sentencing, by reducing the risk that sentencers will make invidious distinctions among various groups of victims in determinations of penalty. 2. ABANDONMENT OF THE RULE OF BOOTH WOULD LEAD TO INCREASED CONSIDERATION, AS A SENTENCING FACTOR, OF THE CLASS, CASTE, AND RACE OF VICTIMS. As Justice O'Connor remarked in California v. Ramos. 463 U.S. 992, 1000 (1983), "It would be erroneous to suggest that the Court has imposed no substantive limitations on the particular 28 factors that a capital sentencing jury may consider in determining whether death is appropriate." In Zant v. Stephens, supra, handed down in the same Term, the Court specified that states may not encourage sentencers to rely on "factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant." 462 U.S. at 885 (citation omitted) ? McCleskev v. Kemp. 481 U.S. 279, 291 n.8 (1987). See, e.a.. Turner v. Murray, 476 U.S. 27 (1986) (recognizing grave risk of hidden operation of racial prejudice in capital sentencing). This prohibition naturally extends to related criteria like social status (a point conceded by the state in Booth) . Brooks, 762 at 1409; see Brief for Respondent, Booth v. Maryland. 482 U.S. 496 (1987), at 36-37. By the same token, 29 the ban covers the use of such considerations as applied to victims rather than defendants. See, e.q . , McCleskev. supra (discrimination in capital sentencing on basis of the victim's race would be unconstitutional). These conclusions are grounded in history as well as logic: the framers of the Fourteenth Amendment were especially anxious both to eradicate distinctions based on "class" or "caste" and to confer on everybody the equal protection of the criminal laws.12 Thus, although the Court in Booth divided over the degree of the 12 To the congressmen who approved the amendment, the recently-abolished institution of slavery provided an extremely vivid example of a system that failed to furnish the most elementary protections, including those of life or limb, to a group defined by race and caste. For a discussion of the original meaning of the equal protection clause, see Brief Amici Curiae of the NAACP Legal Defense and Educational Fund, Inc. and the American Jewish Congress, South Carolina v. Gathers. 109 S. Ct. 2207 (1989) ("LDF and AJC Gathers Brief"), at 10-29. 30 risk that the Maryland procedure calling for victim impact evidence might invidiously influence sentencers, no member of the Court suggested that actual reliance on forbidden factors would be constitutionally permissible. Compare id. at 502 with id. at 517 (White, J ., dissenting). Yet overturning Booth and Gathers would, in fact, increase the danger of jurors deciding to impose death "because of who the victim was," not only in some idiosyncratic personal sense but also in broad societal terms. See Moore, 722 F .2d at 651 (Kravitch, J., concurring in part and dissenting in part) (emphasis in original). Writing for the majority in Booth, Justice Powell put his finger on the nub of the problem*. "We are troubled by the implication that defendants whose victims were assets to the community are more deserving of punishment than those 31 whose victims are perceived to be less worthy. Of course, our system of justice does not tolerate such distinctions. " Id... at 506 n.8 (citation omitted) (emphasis added) . The reason it does not is that the system (and indeed, our whole government) rest on the fundamental premise of political equality for all persons. See Cong. Globe, 39th Cong., 1st Sess., at 257 (1866) (Statement of Senator Clark) , quoted in LDF and AJC Gathers Brief 27-28. This ideal will inevitably be betrayed, to victims' detriment, by the real-life operation of a rule placing a premium on "who the victim was." That is so because, when asked to sympathize with victims and family members, sentencers will tend to sympathize more with people who resemble themselves. In the words of Judge Hampton of the Texas District Court: "'When a white is killed, the whites are upset. 32 When a black is killed, the blacks are upset. When a homosexual is killed of course the homosexuals are upset 1 *’ Belkin, Texas Judae Eases Sentence For Killer of 2 Homosexuals. N.Y. Times, Dec. 17, 1988, § 1, at 8, col. 5. ("Belkin"); see generally Haves v. Lockhart. 869 F.2d 358, 364 (8th Cir.) (Heaney, J ., dissenting from denial of reh'g en banc), vac1d . 109 S. Ct. 3181 (1989) (prosecutor made personal appeals to several individual jurors, referring to their own families, in order to promote identification with victim1s family). Although perhaps most widely acknowledged with respect to race,13 the See, e.a.. Pillsbury, Emotional Justice: Moralizing the Passions of Criminal Punishment. 74 Cornell L. Rev. 655, 708 (1989) (describing McCleskev statistics as illustrative of the "familiar psychological tendency [of] predominantly white decision makers ... to sympathize more with whites than blacks"); Kennedy, McCleskev v. Kemp: Race, Capital Punishment, and the Supreme Court. 101 33 phenomenon of certain crimes being taken less seriously because of who the victim is also occurs in relation to other status variables. Prostitutes who have been "beaten senseless by pimps or 'johns,' drug addicts mugged and robbed of their fixes," see Henderson at 951, unemployed drifters, homeless persons, and religious and political dissidents may not be regarded as true victims, or their assailants as real criminals deserving of significant punishment, by judges and jurors who are typically white and middle- Harv. L. Rev. 1338, 1420 (1988) ("race- of-the-victim disparities in sentencing probably reflect racially selective empathy"); see also Carter, When Victims Happen to Be Black. 97 Yale L.J. 420 (1988) ; Dane & Wrightsman, Effects of Defendants' and Victims1 Characteristics on Jurors' Verdicts, in The Psychology of the Courtroom 104-06 (1982). The effect may be exaggerated when the victim is of the same race, and the defendant is of a different race, from that of the jurors. See, e.a. . id. at 106 (such situations result in the most severe punishment of the defendant). 34 class. Indeed, Judge Hampton, quoted above, unabashedly admits that he sentences according to the victim's perceived societal worth. Explaining why he had given a relatively lenient term to a man who killed two homosexuals, the judge remarked: "'I put prostitutes and gays at about the same level ... and I'd be hard put to give somebody life for killing a prostitute."' Belkin, supra. The use of victim impact evidence exacerbates in at least two ways the problems exemplified by Judge Hampton's sentencing approach. First, such characteristics as the articulateness of surviving relatives often correlate closely with social position and wealth, thereby serving as surrogates for factors no one believes ought to influence capital sentencing. Second, the content of this evidence, and of summations drawing upon it, strongly encourages juries to weigh 35 the deceased's value to the community. That value, in jurors' eyes, will tend to vary with caste and class as well as connected circumstances like education and employment — and frequently, too, with race or religion. Contrary to other amici 1s claims, see, e.g. . WLF Brief 12-13, these dangers are hardly speculative. If they were, the reported cases would not reveal so many examples of divisive appeals to just these types of considerations. Thus, we see prosecutors urging that the victim was a "'hard-working woman in a family-run business,’" Morrison v. State, 551 So.2d 435, 439-40 (Ala. Crim. App. 1989), cert, denied. 110 S. Ct. 1938 (1990), died his ”'[f]irst day on the job trying to support his family,’" Hayes, 869 F. 2d at 363 (Heaney, J. , dissenting from denial of reh’g en banc), was a "'steady'" and "'[d]spendable' " employee, Byrne v ._ 36 Butler. 845 F.2d 501, 510 (5th Cir.), r.prt.. denied. 487 U.S. 1242 (1988), or a "'good provider and family man,'" Hill v. Thigpen. 667 F. Supp. 314, 341 (N.D. Miss. 1987), as modified on denial of reh'q and reh1 a en banc. 891 F.2d 89 (5th Cir. 1989), vac'd. Ill S. Ct. 28 (1990), or had received a college scholarship and was working her way through school to become a nurse. See Moore , 722 F . 2d at 644.1h In 14 See also Clemons v. Mississippi, 110 S. Ct. 1441 (1990) (prosecutor's argument): Here you have a man twenty- four years of age, in the prime of life. A three year-old child. Holding down two jobs. Trying to make it in this world as an honest, law abiding human being for his family. Trying to — aspiring to be a supervisor in another county .... VII Record on Appeal 1192. * * * * You will have the pictures of Arthur Shorter as he appeared on the day of April 17th. They don't depict exactly the personality of Arthur Shorter. Only those friends and people that knew Arthur Shorter 37 an expressly invidious vein, one also encounters prosecutorial attempts to exploit the religiosity of the deceased, see Gathers, the "'religious moral fiber'" of his mother, People v. Holman. 103 111.2d 133, 167-68, 469 N.E.2d 119, 135 (1984) , cert. denied. 469 U.S. 1220 (1985) , or the fact that he served as an Army chaplain. See Daniels v. State. 561 N .E .2d 487 (Ind. 1990) (prosecutor mounted can tell you whether he was a good person. But we can look at what Matthew Shorter told us of his son. That he worked two jobs. He had a degree from Alcorn University. He was striving to get a higher education. And he had a son, a three year old son. Of course, Mr. Shorter and Candy Shorter won't have their son any more. Mr. Shorter probably worked throughout his life. He is a retired pulpwood man as he told you. He had worked all his life hard, raised fourteen children. And he has tried to instill in them the work ethic. And I think if you look at what he told you Arthur was doing, I think you can say that he properly instilled that work ethic in Arthur. Id. at 1168. 38 life-size photo of the victim in full military uniform and stressed that 15deceased had been a clergyman). Similarly, one reads of prosecutors making arguments designed to encourage jurors to distinguish between ostensibly "'good immigrants,'" such as the victim (of Irish descent), and immigrants from disfavored backgrounds, such as the defendant (a Marielito). See Blanco v. Dugger, 691 F. Supp. 308, 322 (S.D. Fla. 1988). Defense counsel would employ the same tactics if given the chance. In State v. Oliver, supra, for example, the defense sought to introduce specific instances of the deceased's homosexual activity; in State v. Butler. 277 S.C. 452, 290 S.E.2d 15 15 In the present case, the victim's mother testified at the penalty trial to the deceased's churchgoing habits. (J.A. 133) The Victim's Statement in the Presentence Investigation mentioned that the mother is "very religious." (J.A. 162) 39 1, cert, denied, 459 U.S. 932 (1982), the defense tried to tarnish the victim, a young white woman, by adducing proof of her social and sexual relations with blacks. See Brief of the South Carolina Public Defenders' Association and the South Carolina Death Penalty Resource Center as Amici Curiae in Support of Respondents, South Carolina v. Gathers, 109 S. Ct. 2207 (1989), at 42-44 (discussing facts from trial record not contained in reported decision). Appropriately, in both cases, the trial court refused to admit this irrelevant and prejudicial evidence. Yet in a post- Booth regime, that option would be foreclosed -- and victims, and those who loved them, would suffer. Not surprisingly, opponents of Booth, faced with these facts, have little to rely on beyond truisms to the effect that equality can never be fully attained in 40 the criminal process. See WLF Brief 12. Our point, of course, is not that capital punishment systems should be brought to a halt unless they can achieve perfection in this or any other area, see McCleskey. 481 U.S. at 319, but rather that states should not be allowed to operate their systems under permissive rules of evidence that increase the risk of sentencers' basing verdicts of death on prohibited considerations, without very good reason to do so.16 Here no such reason exists. Thus, the rule of Booth has demanded no major changes in capital procedures. Cf. McCleskev. 481 U.S. at 367 (Stevens, J., dissenting) (majority seemingly feared that "acceptance of [defendant's] claim would have sounded the death knell for capital punishment in Georgia"); Lockhart v . McCree. 476 U.S. 162 (1986) (acceptance of defendant's claim would would have required that different juries be empaneled at guilt and penalty trials). In addition, the Washington Legal Foundation argues from the facts of the present case that jurors who have heard victim impact evidence can nonetheless impose death even "when the victim is not 41 To the contrary, any suggestion that some lives count for more because their possessors were white, pious, socially respectable, or heterosexual would necessarily imply that others count for less because their possessors were black, irreligious, disreputable or homosexual. It is troubling enough if a lower-court judge espouses such views, see supra at 34; it would be intolerable if this Court, however inadvertently, lent them support. Apart from sending a message that is totally at variance with our traditions, departure from Booth would discourage friends and relatives of victims (who are wealthy or socially prominent." WLF Brief 12. We do not contend, however, that such evidence invariably taints the sentencing process so as to bar death for killers of ordinary people — simply, that it has the pernicious tendency to heighten the influence of status factors and worse, still, considerations of race and religion. (Notably, here, the religiosity of the deceased and Mrs. Harris may have affected the penalty verdict.) 42 disproportionately represented among society's least fortunate, especially poor and minority persons) from cooperating with the authorities investigating and prosecuting murders. The irony of that result underscores our general point: not all victims' rights proposals actually advance victims' interests. In the words of Professor Lynne N. Henderson, herself a victim of violent crime, many "are problematic at best and may actually be psychologically destructive to the victim." Henderson at 938 n.3, 954-55. At least in the setting of capital cases — where the high stakes provide incentives to both sides to employ every available gambit — - educated concern for victims counsels a skeptical approach to rules that foster often unwelcome scrutiny of the dead and their survivors. The fact that the rule of Booth protects against such unwarranted and harmful 43 intrusion strongly argues for its retention.17 CONCLUSION Booth and Gathers balance the rights of defendants and victims in a fair and appropriate manner. Whatever the Court's disposition of this matter, those decisions should be reaffirmed. Respectfully submitted, VIVIAN BERGER* Columbia Law School 435 West 116 Street New York, New York 10027 (212) 854-5521 ♦Counsel of Record (Amici wish to extend thanks to Robert M. Neer, a student at Columbia Law School, for his 17 There exist effective ways to aid victims that do not carry such grave potential to backfire against the "protected" class. See generally Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 et__secu (1982) (inter alia, granting victim right to receive physical protection and restitution from the defendant as well as pertinent information from the authorities). 44 help in preparing brief.) December 15, 1990 this 45 RECORD PRESS, INC., 157 Chambers Street, N.Y. 10007 (212) 619-4949 81582 * 54