Ohio v. Huertas Motion for Leave to File and Brief Amici Curiae

    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



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