Bakke v. Regents Opening Brief of Appellant and Cross-Respondent
Public Court Documents
July 29, 1975
Cite this item
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Brief Collection, LDF Court Filings. Spinkellink v Wainwright Petition for Writ of Certiorari, 1978. 0d5354ec-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/534a953d-b02f-4777-b43d-067e02a3c15e/spinkellink-v-wainwright-petition-for-writ-of-certiorari. Accessed July 01, 2025.
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No. 73 -
JOHN A. SPINKELLINK,
P e t it io n e r ,
v .
LOUIE L . WAINWRIGHT, S ec re ta ry ,
F lo r id a Department o f O ffender
R e h a b ilita t io n ,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
JACK GREENBERG
JAMES M. NABRIT, I I I
JOEL BERGER
JOHN CHARLES BOGER
DEBORAH FINS
S u ite 2030
10 Columous C ir c le
New York, New York 10019
ANDREW A . GRAHAM
S u ite S
1970 M ichigan Avenue
Cocoa, F lo r id a 32922
DAVID E . KENDALL
1000 H i l l B u ild in g
W ashington, D .C . 20006
ANTHONY G. AMSTERDAM
S tan fo rd U n iv e rs ity Law
S tan fo rd , C a l i fo r n ia 94
ATTORNEYS FOR PETITIONER
V o
r.n ro
*
INDEX
PAGE
CITATIONS. TO OPINIONS' BELOW.......................................................... I
JURISDICTION .......................................................................................... I
QUESTIONS PRESENTED ........................................................................ 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 4
STATEMENT OF THE CASE .................................................................... 4
REASONS FOR GRANTING THE WRIT ................ 23
I . THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER FLORIDA'S DEATH
PENALTY STATUTE, AS INTERPRETED BY
THE SUPREME COURT OF FLORIDA AND
APPLIED BY THE TRIAL COURT IN THIS
CASE, UNCONSTITUTIONALLY RESTRICTS
CONSIDERATION OF MITIGATING
CIRCUMSTANCES ................................................................ 26
I I . THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER PETITIONER WAS DE
PRIVED OF AN ADEQUATE HEARING ON HIS
CLAIMS THAT FLORIDA'S CAPITAL PUNISH
MENT STATUTE WAS BEING APPLIED IN AN
ARBITRARY AND DISCRIMINATORY PATTERN
IN VIOLATION OF THE EIGHTH AND FOUR
TEENTH AMENDMENTS ...................................................... 34
I I I . THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHETHER THE COURTS
BELOW ERRED IN REJECTING WITHOUT
A HEARING THE SELFSAME CLAIM ON
WHICH WITHERSPOON V. ILLINOIS
SAID THAT A CAPITALLY CONVICTED
DEFENDANT IS ENTITLED TO A HEARING ................... 45
IV . THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHETHER THE EXECUTIVE
CLEMENCY PROCEDURES EMPLOYED IN
PETITIONER'S CASE DEPRIVED HIM OF
DUE PROCESS OF LAW .................................................... 52
V. THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER PETITIONER WAS DE
PRIVED OF AN ADEQUATE HEARING ON HIS
CLAIM THAT ELECTROCUTION IS AN UN
NECESSARILY TORTUROUS AND WANTONLY
CRUEL MEANS OF EXECUTION, AND THEREFORE
VIOLATES THE EIGHTH AND FOURTEENTH
AMENDMENTS .................................................................... ’ 53
CONCLUSION 57
TABLE OF AUTHORITIES
CASES PAGE
Aikens v . C a l i fo rn ia , 406 U .S . 813 (1972) ............................ 54
A lexander v . L ou is ian a , 405 U .S . 625 (1972) ........................ 41
A l le e v . Medrano, 416 U .S . 802 (1974) .................................... 36
Andres v . United S ta te s , 333 U .S . 740 (1948) ...................... 32
Avery v . G eorg ia , 345 U .S . 559 (1953) .................................... 40
B allew v . G eorg ia , 435 U .S . 223 (1978) .............................. •. . 47
B e l l v . Ohio, ____ U .S . ____ , 47 L .E d .2d 1010 (1978) ......... 23
Boykin v . Alabama, 395 U .S . 238 (1969) .................................. 55
Brown v . A l le n , 344 U .S . 443 (1953) ......................................... 25
Buckrem v . S ta te , 355 S o .2d 111 (F la . 1978) ........................ 31
Burch v . S ta te , 343 S o .2d 831 (F la . 1977) ........................... 31
Coleman v . Alabama, 389 U .S . 22 (1967) .................................. 40
Cooper v . S ta te , 336 S o .2d 1133 (F la . 1976) ........................ 22,27,28
29,30,31
Furman v . G eorg ia , 408 U .S . 238 (1972) .................................. 24,30,35
37,33,39
42,57
Gardner v . F lo r id a , 430 U .S . 349 (1977) ................................ 37,42,43
Gregg v . G eorg ia , 428 U .S . 153 (1976) .................................... 25,37,33
39,54,56
Grisham v . Hagan, 361 U .S . 278 (1960) .................................... 25
Guinn v . United S ta te s , 233 U .S . 347 (1915) ........................ 36
In re Kemmler, 136 U .S . 436 (1890) ........................................... 22,53,55
56
Lane v . W ilson , 307 U .S . 263 (1939) ......................................... 36
Lockett v . Ohio, ____ U .S . _____ , 57 L .E d .2d 973 (1978) . . . ' 21,22,23
26,29,30
31,32,33
42
- i i -
I
PAGE
Lou isiana ex r e l . Francis v. Resweber, 329 U .S .
459 (1947) ..................................................................
Meachum v. Fano, 427 U .S . 215 (1976) .......................
Ex parte M illig a n , 4 W a ll. 2 (1866) .........................
Moore v. Dempsey, 261 U .S . 861 (1923) .....................
N .A .A .C .P . v . Alabama ex r e l . Patterson , 357 U .S .
449 (1958) ..................................................................
N o rris v . Alabama, 294 U .S . 587 (1935) ...................
Peyton v . Rowe, 391 U .S . 54 (1968) ........ -.................
P re sn e ll v . Georgia, ____U .S . _____ , 58 L.Ed.2d
207 (1978) ..................................................................
P r o f f i t t v . F lo r id a , 423 U .S . 242 (1976) ...............
Radio S tation WOW, In c ., v . Johnson, 326 U .S . 120
(1945) ..........................................................................
Harry Roberts v . Lou isiana, 431 U .S . 633 (1977) .
Robinson v . C a li fo rn ia , 370 U .S . 660 (1962) .........
Rogers v . Richmond, 365 U .S . 534 (1961) .................
Schick v . Reed, 419 U .S. 256 (1974) . . . . . . . . . . . . .
Secretary For Home A f fa i r s v . O 'B rien , [1923]
A .C . 603, (H .L . 1923) ...........................................
Shuttlesworth v. Birmingham, 332 U .S . 87 (1965) .
Shuttlesworth v . Birmingham, 394 U .S . 147 (1969)
Smith v . Bennett, 365 U .S . 703 (1965) .....................
Songer v . S tate , F la . S .C . No. 52,642 (1978) . . . .
Spenkelink v . F lo r id a , 428 U .S . 911 (1976)' ..........
Spenkel'ink ,v . . F lo rid a , 434 U.’S . 960 (1977) ..........
Spenkelink v . S tate , 350 S o .2d 85 (F la . 1977) . . .
Spinks11ink v . S tate , 313 S o .2d 666 (F la . 1975)
Stromberg v. C a li fo rn ia , 283 U .S . 359 (1931) . . . .
S u lliv an v . Askew, 348 S c .2d 312 (F la . 1977) . . . .
55,57
22,52
25
25
29
36
24
31
7,19,20,
23,24,25,
25,27,
31,34,
36,37,39
29
33
56
32
22,52
24
32
29,36
24
29
4
4
13
5,9
31
52
ro m
PAGE
S u lliv a n v . Askew, 434 U .S . 878 (1977) ..................................
T e rm in ie llo v . Chicago, 337 U .S . 1 (1969) ............................
Trop v . D u lle s , 356 U .S . 36 (1958) ...........................................
Turner v . Fouche, 396 U .S . 346 (1970) ....................................
V i l la g e o f A r lin g to n H eights v . M etropo litan Housing
Development C o rp ., 429 U .S . 252 (1977) ........................
Ward v . Love County, 253 U .S . 17 (1920) ................................
Washington v . D av is , 426 U .S . 229 (1976) ..............................
W itherspoon v . I l l i n o i s , 3’91 U .S . 510 (1963) ......................
Woodson v . North C a ro lin a , 428 U .S . 280 (1972) ...................
W right v . G eorg ia , 373 U .S . 284 (1 9 6 3 ).......................................
Y ick Wo v . Hopkins, 113 U .S . 356 (1886) ..................................
STATUTES
American Law In s t i t u t e , Model Penal Code § 2 1 0 .6 (4 ) (d )
(P .O .D . 1962) ......... ............... ................... . . . ..............................
C a l. Penal Code Ann. § 19 0 .3 (a ) (Supp. 1978) ..........................
F la . S t a t . Ann. § 921.141 ................. '. ...........................................
Idaho Code § 19-2716 (Supp. 1978) ...............................................
Xy. Rev. S t a t . § 532.025 (2 ) (b ) (4 ) (Supp. 1978) ...................
C k la . S t a t . Ann. t i t . 22 §1014 (Supp. 1978-1979) ...............
S .C . Code § 16 -3 -20 (C ) (b ) (8 ) (Supp. 1977) ................................
Tenn. Code Ann. § 39-2404 ( j ) ( 4 ) (Supp. 1973) ........................
V ernon 's Tex . Code Crim . P ro . Ann. A r t . 43.14 (Cum. Su d o .
1966-1977) ...............................................................................
Vernon 's Tex. Code Crim . P ro . Ann. A r t . 37.071 ( b ) (3)
(Supp. 1973) ........................ .. .....................................................
53
31
54
3 6 , 4 1
4 0 . 4 1 , ;42
29
4 0 . 4 1 , (42
1 8 , 2 4 , , 4 5 ,
4 7 , 4 8 ,
5 0 , 5 1
3 7 , 3 9 ,
36
3 6 , 3 7
4 9 ,
42
33
33
pas s im
56
33
56
32
33
56
32
- iv -
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
No. 78-
JOHN A. SPINKELLINK,
P e t it io n e r ,
v.
LOUIE L. WAINWRIGHT, Secretary ,
F lo rid a Department o f O ffender
R e h a b ilita t io n ,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT
P e t it io n e r prays that a w r it o f c e r t io r a r i issue
to review the judgment o f the United States Court o f Appeals
fo r the F ifth C irc u it , rendered August 21, 1973.
CITATIONS TO OPINIONS BELOW
The opinion o f the court o f appeals is reported
at 578 F.2d 582 and is attached as Appendix A. The opinion
of the d is t r ic t court is unreported and is attached as
Appendix 3.
JURISDICTION
J u risd ic t io n of th is Court is invoked under 23 U .S.C .
Section 1254( I ) . Mr. Justice Powell granted an extension o f
time u n til January 13, 1979, fo r the f i l i n g o f the p e t it io n .
QUESTIONS PRESENTED
Whether F lo r id a 's death penalty s ta tu te , as in te r
preted by the Supreme Court o f F lo r id a and app lied
by the t r i a l court in th is case, un con stitu tion a lly
r e s t r ic t s consideration o f m itigatin g circumstances
in a manner forbidden by Lockett v. Ohio?
Whether p e t it io n e r was deprived o f an adequate
hearing on h is claims that F lo r id a 's c a p ita l
punishment statu te is being app lied in an a rb it ra ry
and d iscrim inatory pattern in v io la t io n o f the
Eighth and Fourteenth Amendments?
Whether the court below in co rre c t ly decided as a
matter o f law an issue exp ressly reserved by th is
Court in Witherspoon v. I l l i n o i s , and whether i t
wrongly held that a v io la t io n o f the Sixth and
Fourteenth Amendments could not be e stab lish ed by
fa c tu a l proof that the d e a th -q u a lif ic a t io n o f
p e t it io n e r 's t r i a l ju ry rendered i t p rosecution -
prone and not im partia l on the issue o f g u i l t , as
w e ll as unrepresentative o f a c ro ss -sec tion o f the
community?
Whether the executive clemency procedures employed
in p e t it io n e r 's case deprived him o f due process
of law guaranteed by the Fourteenth Amendment?
Whether p e t it io n e r was deprived o f an adequate hearing
on h is claim that e lectrocu tion is an unnecessarily
torturous and wantonly c ru e l means o f execution,
and th ere fo re v io la te s the Eighth and Fourteenth
Amendments?
-3 -
II
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED_______
1. This case involves the S ixth , Eighth, and
It Fourteenth Amendments to the Constitu tion o f the United
i
i j
i S ta tes .
2. This case a lso involves the p rov is ion s o f
F lo r id a law set fo rth in Appendix E.
STATEMENT OF THE CASE
P e tit io n e r John A . Spenkelink—̂ has been sentenced
I
i to d ie fo r f i r s t degree murder. Follow ing a d ire c t appeal,
j
d en ia l o f executive clemency, a s ta te post-con v ic tion
| proceeding, and a fe d e ra l habeas corpus ap p lica t ion , th is
I
p e t it io n fo r c e r t io r a r i presents h is la s t opportunity to
I
|j be heard on severa l su b stan tia l c o n stitu tio n a l contentions
j before he is e le c tro cu ted .— His e lec trocu tion would mark
i
j j the f i r s t resumption o f involuntary executions in the United
! States since A o r i l o f 1967.
— The correct sp e llin g o f p e t it io n e r 's surname is
"Spenkelink'' but from the inception o f the sta te court
proceedings in 1973 i t has been sp e lle d "S p in k e llin k ."
L
i| “ P e t it io n e r has been be fo re th is Court tw ice be fo re , but
c e r t io r a r i was denied both tim es. Soenkalink v. F lo r id a ,
423 U .S . 911 (1976) (d ire c t a p p e a l); Spenkelink v . F lo r id a ,
434 U .S . 960 (1977) (s ta te post-con v ic tion p roceed ing ).
-4 -
A. Proceedings in the State Courts
1. The T r ia l
The evidence introduced by the State and
by p e t it io n e r a t h is 1973 murder t r i a l —̂ in the C irc u it
Court o f the Second J u d ic ia l C irc u it in and fo r Leon
County, F lo r id a , was, fo r the most p a rt , not in c o n f l ic t .
The s in g le sharply d isputed issue was whether p e t it io n e r
acted in se lf -d e fe n se o r with a prem editated design when
he shot and k i l le d Joseph J. Szymankiewicz.
The two men, both Caucasian, had been tra v e lin g
companions at the time o f the k i l l in g and were unemployed
4/d r i f t e r s with crim inal re co rd s .— The F lo r id a Supreme
Court described th e ir re la t io n sh ip as fo llo w s :
"During th e ir trav e ls A ppe llan t learned
f i r s t hand o f Szymankiewicz’ s v ic ious
propen sities when the la t t e r forced him
to have homosexual re la t io n s with him,
when the la t t e r played "Russian Roulette"
with him and boasted o f k i l l in g a fe llo w
inmate while in p rison . A fte r checking
into a motel in T a llah assee , Appellant
discovered that h is t ra v e lin g companion
had re lie v e d him o f h is cash re se rv e s ."
— The state t r i a l t ra n sc r ip t , which was made pa rt o f the
record o f the fe d e ra l habeas corpus proceeding below, is
divided into three separate ly paginated section s. Here
a ft e r , re ferences to the one-volume v o ir d ire tran sc r ip t
w i l l be p refaced by "V .D .T ." ; re ferences to the two-
volume t r i a l t ra n sc r ip t w i l l be prefaced*by "T .T ." ; and
references to the one-volume m itigation -h earin g tran s
c r ip t w i l l be p refaced by "M it. T ." . References to the
tran sc rip t o f the September 21, 1977 hearing in the
United States D is t r ic t Court w i l l be prefaced by "T .",
and references to the record on appeal to the Court
o f Appeals w i l l be prefaced by "R ."
—' P e tit io n e r had walked away from a C a li fo rn ia minimum
security prison camp, M it.T . 20, 43, and Szymankiewicz
had spent most o f the past twenty years in p rison ,
T.T. 206.
—a -
P e tit io n e r then reso lved to part company with Szymankiewicz.
Sp inkellink v. S ta te , 313 So .2d 666, 668 (F la . 1975);
Appendix C, p. 3c i n f r a . " A d m i t t e d l y , the evidence
c le a r ly shows that . . . [Szymankiewicz] was an in d iv id u a l
o f v ic ious temperament, and that A ppe llan t was ju s t i f ie d
in concluding that he would do w e ll to sever th e ir
re la t io n sh ip ." Id . at 670; p. 5c in f r a .
On February 4, 1973, p e t it io n e r sought to remove
his personal belongings from the motel room and to recover
the money taken from him. i d . a t 668; p. 3c in f r a .
During the episode that fo llow ed , Szymankiewicz was k i l le d
by a gunshot wound "fragm enting the spine and rupturing
the a o r ta ." 313 S o .2d a t 66 8; p - 3C in f r a . In add ition ,
there was another shot which resu lted in a grazing scalp
wound, T.T. 83-84, and two laceration s on the head apparently
caused by blows. There was inconclusive t r i a l testimony
| as to whether powder bum s on the p illo w were the re su lt
o f a shot f i r e d during a s tru gg le . T.T. 35, 108-117,
142-147. P e tit io n e r t e s t i f ie d that he was attacked by
Szymankiewicz and forced to k i l l in s e l f defense, T.T.
215-17, 226-27, M it.T . 41-42, 44-46, but the ju ry convicted
him o f f i r s t degree murder.—̂ The t r i a l court th e rea fte r
—̂ The opinion o f the F lo r id a Supreme Court a ffirm in g
p e t it io n e r 's conviction and death sentence is attached
as Appendix C, pp. lc - lO c in f r a .
i , ,
| — Shortly before the k i l l in g , p e t it io n e r had picked up a
hitchh iker named Frank Bruum. Bruum was t r ie d fo r
f i r s t degree murder jo in t ly with p e t it io n e r . He was
| acquitted .
-6 -
concluded that "the victim was e ith e r ly in g on [the ]
p i l lo w at the time o f [the ] shots o r the p i llo w was
2/
used to m uffle sa id sh o ts ." R. 39.
During the se le c t io n o f p e t i t io n e r 's t r i a l ju ry , two
I
veniremen were excluded fo r cause over contemooraneous
I
ob jec tion by defense counsel, V .D .T . 56-58, 73-75, on
account o f th e ir conscientious scrup les aga in st the death
pen a lty . Both veniremen had stated that the death penalty
would not a f fe c t th e ir a b i l i t y to fin d p e t it io n e r g u i lt y
at the f i r s t stage o f the b ifu rc a ted t r i a l i f the evidence
warranted conviction . Ib id .
At p e t it io n e r 's sentencing hearing, the State in t ro
duced two p r io r f i r s t -d e g r e e robbery convictions, a C a li fo rn ia
i
p a ro le ru les v io la t io n (escape from .a co rre c t io n a l camp on
October 18, 1972), and three photograohs o f Szymankiewicz1s
i
i body. P e t it io n e r introduced the "FBI record sheet o f the
I
j deceased," M it. T. 24, which showed numerous a rre s ts and
7/The court: d id not fin d that Szymankiewicz had been
s leep in g when he was k i l l e d . We mention th is because
the Court o f Appeals below tw ice quoted and once paraphrased
the p a ren th etica l ch arac te riza tion o f p e t i t io n e r 's case that
appears in footnote 12 o f th is C ou rt 's opinion in P r o f f i t t
v . F lo r id a , 428 U .S . 242, 255 n . 12 (1976) (opin ion o f Mr.
Justice Stewart, Mr_ Justice P’o w e ll and Mr. Justice Stevens) :
" ( 'c a r e e r c rim in a l' shot s leep ing t ra v e lin g companion)."
j See 578 F.2d at 586 & n. 3, 602; pp. 5 a & n. 3, 21a.
j However, that ch arac te riza tion , w ith a l l respect, has no ba s is
in the record . Although p e t it io n e r 's f i r s t c e r t io r a r i
p e t it io n was pending at the time P r o f f i t t was decided,
j the record in the case was ne ither transm itted to th is Court
nor requested by i t .
convictions o f Szymankiewicz in f i f t e e n States over a
twenty-year p e riod . M it. T .26. P e t it io n e r again took
the stand and t e s t i f i e d that the only reason he returned
to the motel room on February 4 was " [ t ] o get my money,
get my luggage and leave without him [Szymankiewicz] going
with me.'' M it . T .40. P e t it io n e r continued to maintain
that he had shot Szymankiewicz in s e l f defense. M it.
T . 41-42, 44-46.
The court in structed the ju ry that the m itigatin g
circumstances i t could consider were the seven fa c to rs set
8/
fo rth in the F lo r id a death penalty s ta tu te . M it. T. 79.
The ju ry , by m ajority vote , recommended a death sentence. M it.
T. 84. The t r i a l judge subsequently entered a w ritten order
fin d in g four statu to ry aggravating circum stances: (1) that
the murder was committed fo r pecuniary ga in ("e ith e r fo r
another person 's money or to re-coup h is own"); (2) that i t
was e sp e c ia lly heinous, atrocious and c ru e l; (3) that i t was
committed by someone p rev iou s ly convicted o f a fe lony invo lv ing
the use or th reat o f v io lence (armed ro b b e ry ); and (4) that i t
was committed by a person under sentence o f imprisonment.
The judge could fin d on ly one m itigatin g circumstance on
the sta tu to ry ro s te r : "The on ly m itigatin g circumstance
3/The court stated : "the m itigatin g circumstances which you
may consider, i f e stab lish ed by the evidence, are th e s e :" ,
and then read to the ju ry the seven fac to rs l is t e d in the
sta tu te . M it. T. 79.
-8 -
jl
would be that p o ss ib ly the defendat [s ic ] was under the
in fluence o f extreme mental o r emotional d isturbance.
However, based on the record, as a whole th is Court d is
counts th is as a su b stan tia l f a c t o r . " R. 4IT Concluding
I
■ that "there are in s u f f ic ie n t m itigatin g circumstances to
‘outweigh the aggravating circum stances," i b id . , the
judge imposed the death sentence.
2. The Appeal
The F lo r id a Supreme Court a ffirm ed p e t it io n e r 's .
conviction and death sentence on February 19, 1975.
9 /Sp inkellink v. S ta te , supra.— On July 6, 1976, th is
— in a d issen ting op in ion , Mr. Justice Ervin maintained
that the record presented in s u f f ic ie n t ce rta in ty o f
prem editation and heinousness to ju s t i fy im position
o f the death penalty :
"In th is case i t appears that Appellant
at the time o f the homicide was a 24-y e a r -o ld
d r i f t e r who picked up Szymankiewicz, a h itch
h iker. Both had crim inal records and both
were heavy drinkers . Szymankiewicz, the
victim in th is c a se , was a man o f v ic ious
propensities who boasted o f k i l l in g s and
forced Appellant to have homosexual r e la
tions with him. Appellant d iscovered that
Szymankiewicz had 'r e l ie v e d him o f his cash
re se rv e s . '
I t was under these conditions that
Appellant returned to the motel room
where the homicide occurred. . . .
The S ta te 's claim o f prem editation is
tenuous and based upon dubiously drawn
s im p lis t ic reasoning which to be ap p licab le
in th is case requ ires the s tra in in g o f c i r
cum stantial in ferences.
[Footnote 9/ continues on next page.
-9 -
»
Court denied c e r t io r a r i . 428 U.S. 911.—
3. Executive Clemency Proceedings
P e t it io n e r was then considered fo r
commutation under procedures e s tab lish ed by the Rules o f
Executive Clemency adopted by the F lo r id a Governor and •
Cabinet on December 8, 1976. The F lo r id a Paro le and
Probation Commission made an advisory recommendation to
the_Govem or and Cabinet that p e t it io n e r 's death sentence
not be commuted, and the Commission's Chairman forwarded
the Commission's hearing tran sc r ip t and e x h ib its . His
le t t e r stated that " [t ]h e Commission is a lso includ ing
Footnote 9/ continued
From the standpoint o f ce rta in ty and
innate heinousness, th is case hard ly appears
to ju s t i fy the death penalty. . . .
Truly characterized , the sentencing to
death here is an example o f the exerc ise o f
lo c a l a rb it ra ry d isc re t io n . The two actors
in the homicide were underp riv ileged d r i f t e r s .
Their surnames, Sp inkelln ik [s ic ] and
Szymankiewicz, were fo re ign and strange to
the Tallahassee area . They had no fam ily
roots or business connections here. A l l o f
the ingred ien ts were present fo r the exerc ise
o f inv id ious paroch ia l d iscrim ination in the
sentencing process which the p lu ra l opinions
o f the m ajority in Furman [v . G eorg ia , 408 U.S.
238 (1972 ),] condemned. The re su lt hers is an
o ld sto ry , o ften repeated in th is ju r is d ic t io n
where the subconscious p re jud ices and lo c a l
mores outweigh humane, c iv i l iz e d understanding
when certa in segments o f the population are
up fo r sentencing fo r murder."
313 S o .2d at 673-674; Appendix C, .d p . 8 c - 9c in fra (d issen tin g
opinion o f Mr. Justice E r v in ) .
10A subsequent motion by p e t it io n e r fo r reduction o f sentence
was denied by the state t r i a l court on December 8, 1976.
-1 0 -
the major contents o f i t s case f i l e , however, the Commission
fe e ls that th is m ateria l should be deemed c o n f id e n t ia l."
Counsel fo r p e t it io n e r inqu ired unsuccessfu lly o f the
1 Governor and Cabinet by what standards, i f any, th e ir
I f in a l decision to commute or re fu se commutation would be
1
made. Counsel appeared before the Governor and Cabinet —
I
i
I
which included the Attorney General, who is charged with
prosecuting crim ina l cases on appeal— 1̂— to present o ra l
argument in favo r o f commutation. Opposing argument was
— • The Attorney General, in h is capacity as a member o f
the Cabinet, a c t iv e ly argued the case aga in st p e t it io n e r 's
counsel a t the hearing.
"You would c le a r ly acknowledge that he would
come in the category o f being a career crim ina l.
And the question I have, is on what ju s t i f i c a
tion is there fo r a mercy p lea fo r a career
crim inal?"
Minutes o f Hearing o f March 29, 1977, p. 13. In
add ition , the Attorney General in te r je c ted severa l
comments purporting to be based on inform ation ob
tained outside the record:
"MR. SHEVIN [Attorney G e n e ra l]: Yeah. And
when you say they were tra v e lin g across the
country together. They were tra v e lin g across
the country committing armed robberies together,
w eren 't they?
MR. DAVIS [Counsel fo r a p p e lla n t ]: I d on 't
that. [s ic ] I , that . . . .
MR. SHEVIN: W ell d id they have any other kind
o f employment a t the time?"
Minutes o f Hearing o f March 29, 1977, p. 12.
"MR. SHEVIN: I 'v e been to ld by the in v e st ig a t in g
o f f i c e r now that he a lso made some th reats at the
end o f that t r i a l . Are you fa m ilia r w ith that?
MR. 3AJ0CZKY [A ss istan t State Attorney].: I ’m
fa m ilia r , S ir , that there were rumors that he
had threatened severa l people who were involved
in retu rn ing him to F lo r id a and the o f f ic e r s who
were involved in his prosecution in Ta llahassee .
Those are . . .
[Footnote 11 / continues on next page .]
I
*
J presented by the prosecuting attorney on beh a lf o f the
State. On September 12, 1977, the Governor signed a
death warrant authoriz ing the e lec trocu tion o f p e t it io n e r
during the week o f September 19, 1977, and re c it in g that
" i t has been determined that Executive Clemency, as authorized
iby A r t ic le IV, Section 8 (a ) , F lo r id a C onstitu tion , is not
.
a p p ro p r ia te ."
i
4. State Post-Conviction Proceedings
On September 13, 1977, p e t it io n e r f i l e d in the
t r i a l court a Motion to Vacate, Set Aside o r Correct Sentence,
pursuant to F la .R .C rim .P . 3.850. The Motion ra ised essen
t i a l l y the same claims which were subsequently presented in
the fe d e ra l habeas corpus p e t it io n that is now before th is
Court, and requested "an ev iden tia ry hearing on i t s . . .
a l le g a t io n s ." On the day the motion was f i l e d , the t r i a l
court heard o ra l argument but refused to receive any evidence
in support o f p e t it io n e r 's a lle g a t io n s . I t summarily d is
missed the motion that same day.
Footnote i i / continued
MR. SHEVIN: He d id n 't make those th reats
d irected to you then?
MR. BAJOCZKY: No, S ir . I d id not hear any
th reats .
MR. SHEVIN: Okay. So, i t ' s ju s t hearsay.
MR. BAJOCZKY: T h at 's co rrec t.
MR. SHEVIN: Yeah."
!
Id . a t 15.
II
Ii j
I
An immediate appeal was taken to the F lo r id a
Supreme Court. Three days la t e r , on September 16, 1977,
that court unanimously affirm ed the t r i a l c o u rt 's d en ia l
o f r e l i e f and i t s r e fu s a l to a llow p e t it io n e r to present
evidence in support o f h is c o n stitu tio n a l contentions.
; Spenkelink v . S ta te , 350 So. 2d 85 (F la . 1 9 7 7 ) . On
November 14, 1977, th is Couft denied c e r t io r a r i . 434 U .S .
960.
12/nhe opinions o f the F lo r id a supreme Court in th is proceed
ing are attached as Appendix D, pp. ld -4d in f r a . In add i
tion to the per curiam m ajority opinion, three concurring
opinions were w ritten expressing various degrees o f concern
about p e t it io n e r 's contentions or impending execution. 350
So. 2d at 86-88; pp. 2d-4d in f r a . Mr. Justice Hatchett w rote:
■ "Now that the question o f the s ta tu te 's ap
p lic a t io n is c le a r ly presented, I would a lso find
Section 921.141 . . . to be un constitu tiona l as
app lied . A review o f the cases that have come
befo re th is Court ind icate that the death sentence
is imposed ir r e g u la r ly , u n p red ic tab ly , and fo llow s
no d iscernab le [s ic ] p attern . Swan v . S ta te , 322
S o .2d 485 (F la . 1975 )(v ictim b ru ta l ly beaten and
tied in such a manner that s tru gg lin g to free h e r
s e l f would choke h e r ) ; H a ll iw e ll v . S ta te , 323 S o .2d
557 (F la . 1975 )(v ictim beaten to death w ith an iron bar
and corpse cut into p ie c e s ); Tedder v . S ta te , 3 22 So.2d
908 (F la . 1975) [ ( ] v ictim shot, perpetra to r refused to
allow anyone the r ig h t to aid her as she b led to d e a th ).
In a l l o f these cases th is Court reduced the death sen
tence to l i f e imprisonment. [Footnote: . . . Obviously
th is Court has had g rea t d i f f i c u l t y in applying the p res
ent s ta tu te . The aggravating and m itigatin g circumstances
enumerated in Section 921.141(5 ), (6) are so i l l defined
and vague as to escape reasonable and consisten t ap p lic a
t io n . ] I t i s apparent to me that the death penalty under
the F lo r id a sta tu to ry scheme is being adm inistered in an
a rb it ra ry and cap ric ious manner inconsisten t with the prem
ise s underlying Furman v . G eoru ia , 408 U .S . 233 . . .
(1972) , State v . D ixon, supra, and P r o f f i t t v . F lo r id a ,
supra. But th is issue was apparently fo rec losed by the
United States Supreme Court in i t s dec ision in P r o f f i t t .
. . . [T ]he F lo r id a Supreme Court only revieX'/s
cases in which the death penalty is imposed. This
Court is w ithout authority to review those cases
where the t r i a l judge imposes a sentence o f l i f e
[Footnote 12/ continues on next page.]
B. Proceedings in the Federal D is t r ic t Court
1. The P e t it io n
P e t it io n e r 's fe d e ra l habeas corpus proceeding was
commenced on September 14, 1977. The a lle g a t io n s which are
the sub ject o f the present ap p lica tion fo r c e r t io r a r i appear
in paragraph 12 o f h is habeas corpus p e t it io n . Summarily,
they a r e :
(1) P e t it io n e r 's death sentence is a d isp roportionate
and u n con stitu tion a lly excessive punishment in
view o f a l l o f the re levan t m itigating circum
stances. (312 (F ), R. 30-31.)
(2) F lo r id a 's death penalty sta tu te is being adm inis
tered in an a rb it ra ry and cap ric ious fash ion and
hence is unconstitu tiona l as app lied in th is case.
(312 (C ), R .24 -26 .) Further, the death penalty in
F lo rid a is app lied a r b i t r a r i ly and d isc r im in a to r ily
again st defendants convicted o f k i l l in g white
persons. (312(J ) , R. 33-34.)
(3) The exclusion fo r cause o f two prospective ju ro rs
on grounds o f conscientious scrup les aga inst the
death penalty re su lted in a conviction -prone
ju ry . (3 1 2 (A ) ( i i ) and ( i i i ) , as amended, R. 144.)
(4) The procedures used in considering p e t it io n e r 's
case fo r executive clemency, which resu lted in the
sign ing o f a warrant fo r h is execution, were funda
m entally u n fa ir and deprived him o f due process o f
law . (312 (G) , R. 31-32. )
(5) Death by e lectrocu tion in f l i c t s unnecessary, wanton
to rtu re . (312 (C ), R. 26.)
Footnote 12/ continued
imprisonment, rega rd le ss o f the ju r y 's recommendation
o f l i f e or death. This s itu a tio n deprives th is Court
o f the opportunity to determine whether death is being
imposed evenhandedly. Herein l i e s the breeding grounds
fo r a l l o f the horrors condemned by Furman."
350 So .2d at 87-83? pp . 3d- 4d i n f r a .
2. Proceedings from P e tit io n to Judcrment
Because o f the broad substantive grounds upon which
the F ifth C ir c u it 's dec ision was subsequently put, the nature
j o f the proceedings and the evidence in the D is t r ic t Court can
|
! a lso be summarized b r i e f ly . The proceedings were p rec ip itous
in the extreme.
I
As noted above, p e t it io n e r was denied commutation
and h is death warrant was signed on September 12, 1977; state
postconviction proceedings were f i l e d on September 13, and
fe d e ra l habeas corpus proceedings on September 14. On the
la t t e r date, the United States D is t r ic t Court fo r the Middle
I
D is t r ic t o f F lo r id a (the d i s t r i c t o f confinement) tran sfe rred
the proceedings to the Northern D is t r ic t (the d i s t r ic t o f con-
jv ic t io n ) , re c it in g that "th is case could develop into a case o f
considerab le magnitude and len g th ," requ ir in g "c lo se and extended
ju d ic ia l a tten tion " (o rder o f Hon. Howell W. M e lto n ). On Sep
tem ber ;16 — the same day that the F lo r id a Supreme Court a f -
.1
firmed the d en ia l o f sta te postconviction r e l i e f — the Hon.
W illiam S ta ffo rd in the Northern D is t r ic t heard o ra l argument
on p e t it io n e r 's app lica tion fo r a stay o f h is September 19
execution, granted the stay, and se t a hearing on two o f p e t i
t io n e r 's claims fo r September 21. Evidence and fu rth e r arguments
:were heard on September 21, and on September 23 Judge S ta ffo rd
I
^dismissed the p e t it io n and ordered that that stay o f execution1
i
iexp ire on September 30. (A supervening stay was th e rea fte r
granted by the Court o f Appea ls .)
a. The Hearing
Judge S t a f fo rd 's September 16 order exp ressly
jllimiued the September 21 hearing to two o f p e t it io n e r 's
l
i I
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il
ll
il
I
I
i
i
claim s: a rb it ra ry and cap ric iou s ap p lica tion o f the F lo r id a
death penalty statu te [P e t it io n ^ 1 2 (0 ] , and d isp roportionate
use o f the death penalty in cases o f white victim s [P e t it io n
1112 (J) ] . R. 129. P e t it io n e r presented f iv e w itnesses in
support o f these contentions, and the State presented two in
re b u tta l. Their testimony is cap itu la ted in Appendix F,
i pp. l f - 1 5 f in f r a .
j
E s se n t ia lly , two o f p e t it io n e r 's w itnesses te s
t if ie d ,. on the bas is o f expe'rience or study, that p e t it io n e r 's -
death sentence could not ra t io n a lly be squared with any non-
a rb it ra ry pattern o f ap p lica tion o f the death penalty in
F lo rid a murder cases since enactment o f the S ta te 's present
c a p ita l sentencing statu te in 1972. A th ird witness adduced
ra c e -o f-v ic t im s t a t is t ic s ; and p e t it io n e r 's two remaining
expert w itnesses t e s t i f i e d , on the b a s is o f those s t a t is t ic s
13/and o f s t ip u la ted f ig u r e s ,— that the numbers o f defendants
sentenced to d ie in F lo r id a fo r the murder o f white victim s
was d isp roportion ate ly h igh , and that ne ither chance nor any
i known n o n -rac ia l exp lanation appeared to account fo r the
d isp roportion . P e t it io n e r 's experts had not had ample time
to gather and analyze a l l extant data during the few days
I
p r io r to the hearing, T. 18, 140-142, 162, 181-184, 190-191,
203; and p e t it io n e r 's counsel had f i le d a re levan t d iscovery
request which had not yet been acted on by the D is t r ic t Court.
The p a rt ie s s t ip u la ted that, o f 113 victim s o f the murder
defendants sentenced to d ie under F lo r id a 's 1972 c a p ita l
punishment statu te , 104 (92%) were whits and 9 (3%) were
black . T. 131-132.
— ^This request, f i le d pursuant to Rule 6 o f the Rules Govern
ing Section 2254 Cases in the United States D is t r ic t Court,
sought production, in te r a l i a , o f the name and race o f each
person convicted o f second-degree murder, th ird -d eg ree murder
and manslaughter since 1973; the county o f each such conviction ;
and the race o f the v ictim in each case. R. 139. The D is t r ic t
Court entered it s f in a l order d ism issing the habeas corpus
p e tit io n on the m erits without aver having ru led on p e t it io n e r 's
pending discovery requests.
I
I
%
In th is posture o f the case, counsel fo r p e t it io n e r
stated h is subm issions: (1) that the purpose o f the September 21
hearing had been to permit p e t it io n e r to substan tiate h is
fa c tu a l a lle g a t io n s with whatever evidence could be analyzed
i
: in the time a v a ila b le , going to the two issues that the D is -
| tr ic t Court had agreed to hear; (2) that p e t it io n e r 's evidence
io f a rb it ra r in e s s and d iscrim ination were s u f f ic ie n t to demon
s tra te the su b s ta n t ia lity o f these is s u e s , and to warrant
fu rth e r ev iden tia ry hearing w h ile p e t it io n e r 's execution
remained stayed by the D is t r ic t C o u r t (3) that p e t it io n e r
sought a continuance to prepare and present ad d it io n a l evidence
— ' " . . • As I understand the purpose o f
th is proceeding today is fo r us to t e l l the
Court that which we do know at th is tim e, that
which is a v a ila b le that can be set fo rth in
beh a lf o f p e t it io n e r . To the extent that
there is data out there that we s t i l l do
not have, but can obta in , our p o s it ion
i s that we should be- a llow ed time to
obtain i t , because i t is e a s i ly obta inab le
m ateria l. But [what] we are try in g to show
the Court . . . is what we do know at th is
time to attempt to prove, a t le a s t , a prima
fa c ie case that we are on to something [ , ]
that we are r a is in g leg itim ate questions
which requ ire fu rth er e x p lo ra t io n ."
T. 143. See a lso T. 216.
" . . . [Th is] doesn 't mean we have won.
I t means we have a r ig h t to go ahead.
. . . In f iv e d ays ' time we have not
been ab le to prepare everyth ing that could
be sa id on th is is su e , but we have c le a r ly
mapped out the d ire c t io n in which the inqu iry
must go ."
T. 277-273. See gen era lly T. 276-278. In i t s order o f
September 23, the D is t r ic t Court acknowledged that " [b ]ased
upon the evidence adduced p e t it io n e r has requested ad d it ion a l
time to completely present h is case to the co u rt ." R. 161.
-17 -
on these issu e s , fo llo w in g the completion o f appropriate
d iscove ry ;— ^ and (4) that p e t it io n e r a lso repeated h is
request fo r an ev iden tiary hearing on the other issues ra ised
! by his habeas corpus p e t it io n , which had been excluded from
j the scope o f the September 21 h earing .— ^ The D is t r ic t
!
Court denied the continuance and adhered s t r ic t ly to i t s
pre -h earin g order lim it in g the issues upon which evidence
could be presented- T. 213-218, 221-222.
b. The D is t r ic t C ou rt 's Decision
Two days la t e r , on September 23, the
!'
|D istr ic t Court dism issed the habeas corpus p e t it io n . The
|court's f in a l order states that "only three o f the grounds
ra ised m erit d iscussion . The remaining have been au th o rita
t iv e ly disposed o f by the United States Supreme C ourt."
R. 161.
F ir s t , the D is t r ic t Court held that p e t it io n e r
I
j had waived any claim that h is ju ry se le c t io n process
; v io la ted the ru le o f Witherspoon v. I l l i n o i s , 391 U.S. 510
| (1963), because he fa i le d to ra is e the issue on his d ire c t
|t
11appeal to the F lo r id a Supreme Court; and, xn any event, there
i!were no Withersooon v io la t io n s . R. 161-63. (The court did
!
|not d iscuss p e t it io n e r 's separate claim that the exclusion o f
I
See T. 277-278, where counsel notes the s ign ific an ce o f the
pending discovery request. C ounsel's formal motion fo r a
continuance appears a t T. 213-213; i t is denied at T. 222.
| -^ -/ p e t it io n e r ' s fed e ra l habeas corpus p e t it io n had e x p l ic i t ly
asked fo r a hearing on i t s seve ra l fa c tu a l a lle g a t io n s .
R. 35. Although the court and both p a rt ie s recognized
that the September 21 hearing i t s e l f was lim ited to two
issues by Judge S ta f fo rd 's September 16 order, T. 17, 32,
35-36, 214, 221-222, p e t it io n e r 's counsel included in his
motion fo r a continuance a request fo r the opportunity
to present evidence on the issues "other than the two
which have been heard today . . . [upon] which the
p e t it io n e r would contend [that he] does have a r ig h t to
an ev iden tiary h ea rin g ." T. 214.
I
I
i!
ii{I
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death -scrup led ju ro rs had resu lted in a conviction -prone
ju ry . )
Second, the court ru led that fa c tu a l inqu iry into
the question o f a rb it ra ry ap p lica tion o f the death penalty
in F lo r id a was fo rec lo sed by P r o f f i t t v. F lo r id a , 428 U.S.
242 (1976). R. 163. Further, cases in which death sentences
were reversed by the F lo r id a Supreme Court appeared to pre
sent "s ig n if ic a n t m itiga tin g circumstances that serve to
f a i r ly d is t in gu ish those cases from p e t i t io n e r 's . " R. 164.
F in a l ly , w ith regard to p e t it io n e r1s argument
that r a c ia l d iscrim ination could be in fe rred from the d is
proportionate im position o f the death penalty fo r the k i l l in g
o f w h ites, the court ru led that:
"Although there is no mention o f the
race o f the victim s o f murderers in the
P r o f f i t t op in ion , i t is c le a r that
the United States Supreme Court was
confident that the safeguards which
are provided are s u f f ic ie n t to insure
evenhanded ap p lic a t io n . I t is fo r
th is reason that th is court must con
clude that the focus o f any inqu iry
into the ap p lica tion o f the death
penalty must n ece ssa rily be lim ited to
the persons who rece ive i t ra ther than
th e ir v ic t im s ."
R. 165.
C. The Decision o f the Court o f Appeals
P e t it io n e r contended in the F ifth C irc u it
that the D is t r ic t Court had e rred in re je c t in g a l l but two
o f h is claims without a hearing, and in re fu s in g to permit
him to complete a proper ev id en tia ry presentation on those
two. On August 21, 1978, the Court o f Appeals a ffirm ed in a
sweeping opinion holding that Judge S ta ffo rd need not have
conducted any ev iden tiary hearing on any o f p e t it io n e r 's
claims because, in i t s view , a l l such claims were le g a l ly
fo rec losed rega rd less o f the f a c t s :
-19 -
" . . . This Court views those o f
Spenkelink 's contentions on which the t r i a l
court did not conduct a hearing and those
on which the court conducted an a lle g e d ly
inadequate hearing as contain ing le g a l ques
tions on ly . We assume fo r the sake o f argu
ment that the fa c tu a l a lle g a t io n s underlying
these contentions are true , because, even i f
they are, the p e t it io n e r cannot p re v a il on them
as a matter o f law . . . . "
578 F.2d at 590; p. 9a in f r a .
S p e c i f ic ia l ly , the court held that p e t it io n e r had not
been e n t it le d to a hearing on _his claim s that h is death sentence
resu lted from a rb it ra ry , cap ric iou s , and r a c ia l ly d iscrim inatory
app lica tion o f F lo r id a 's c a p ita l punishment s ta tu te . Henceforth,
a fe d e ra l d i s t r ic t court in the F ifth C irc u it may not conduct a
hearing on contentions o f th is nature unless a habeas p e t it io n e r
can show that h is death sentence is "paten tly unjust and would
shock the conscience," 578 F.2d at 606 n.28; p. 25a n.28 in f r a ,
or is the product o f "some s p e c if ic act or acts evidencing in
ten tion a l or purposefu l r a c ia l d iscrim ination aga in st him, " i d .
at 614 n.40; p . 33a n.40 in f r a . The Court o f Appeals "an tic ipates
that such in tervention w i l l be in frequent and only fo r the most
com pelling reasons." I b id . In sum, the court below concluded
that since F lo r id a 's death penalty statu te had been upheld on
i t s face in P r o f f i t t v . F lo r id a . 428 U .S . 242 (1976), the statute
is now in su lated from fe d e ra l habeas corpus claims that i t s a p p li
cation is a rb it ra ry , cap ric ious or d iscrim inatory . 578 F.2d at
605-606, 613-614; pp. 24a-25a, 32a-33a in f r a .
As fo r p e t it io n e r 's fa c tu a l a lle g a t io n that a ju ry
stripped o f a l l veniremen who consc ien tiously oppose the
death penalty is d isp rop o rtion ate ly l ik e ly to convict, the
court "assume[d] i t s v a l id it y " because, " [e ]ven i f i t is true,
-20 -
the p e t it io n e r 's contention s t i l l must f a i l . ” 578 F.2d at 594;
p. 13a in f r a . The court held that so long as veniremen
favoring the death penalty do not d isp lay overt b ias in favor
o f conviction when they are questioned on v o ir d i r e , " [s ]u c h
persons cannot accurate ly be branded p rosecu tion -p ron e .”
I b id . The court recognized that the death -scrup led ven ire
men excluded in p e t it io n e r 's case had s im ila r ly sworn to be
im partia l on the question o f g u i l t o r innocence. Nonetheless,
the court b e lieved , F lo r id a could p roperly conclude that
” . . . i t is e n t ire ly p o ss ib le — perhaps even probable —
that such a venireman could not f a i r ly judge a defendant's
g u i l t or innocence when a c a p ita l fe lony is ch arged ." Id . at
595; p . 14a in f r a .
Follow ing th is Court’ s dec ision in Lockett v. Ohio,
____U .S. ____, 57 L .E d .2d 973 (1978) , p e t it io n e r f i l e d a sup
plemental b r ie f in the Court o f Appeals contending that the
ju ry and the t r i a l court had u n con stitu tion a lly been forbidden
by F lo rid a law to consider a l l re levan t m itigatin g circum-
stancas in h is case. P e t it io n e r pointed out that the
c o u rt 's charge to the ju ry had lim ited consideration o f
m itigatin g circumstances to the seven fac to rs sp e c if ie d in
F la . S tat. Ann. §921.141(6 ), and that the t r i a l c o u rt 's
own sentencing find ings s im ila r ly re f le c te d i t s view that
circumstances in m itigation were lim ited to the confines o f
the sta tu te . P e t it io n e r contended that h is sentencing process
had therefore excluded independent consideration o f such
m itigating fac to rs as provocation and perceived ju s t i f ic a t io n .
He noted that the F lo r id a Supreme Court had a lso construed the
istatu to ry l i s t o f m itigatin g circumstances as ex c lu s ive .
Cooper v . S tate . 336 S o .2d 1133, 1139 (F la . 1976). The Court
o f Appeals, however, determined that since the ju ro rs had heard
evidence o f Szymankiewicz' s mistreatment o f p e t it io n e r , they had
been fre e to consider provocation as a m itigating fa c to r even
though the F lo r id a sta tu te on which they were e x p l ic i t ly charged
did not. include such a fa c to r . 578 F.2d at 621; p. 40a in f r a .
The court read Lockett as rea ffirm in g the c o n s t itu t io n a lity o f
the F lo r id a death penalty statu te notwithstanding the tension
;between th is C ou rt 's holding in Lockett and the F lo r id a Supreme|
jCourt's holding in Cooper . I b id .
P e t it io n e r 's contention that the clemency proceedings
which re su lted in the sign ing o f h is death warrant deprived him
o f l i f e w ithout due process was re jec ted on au thority o f Schick
II
jjv. Reed, 419 U .S . 256 (].974) , and Meachum v . Fane. 427 U .S . 215
i! ■'
ij (1976) . 578 F.2d at 617-619; pp . 36a- 38a in f r a . His claim that
jhe was e n t it le d to a hearing to e s ta b lish that e lec trocu tion is
|unnecessarily torturous and wantonly c ru e l in the lig h t o f cu r
rent medical knowledge and a v a ila b le a lte rn a t iv e means o f exe
cution was re jec ted on au th ority o f In re Kemmler. 136 U .S . 436
I
j(1890) . 578 F.2d at 616; p . 35a in f r a .
REASONS FOR GRANTING THE WRIT
This p e t it io n presents a number o f somber and im
portant questions which a f fe c t not only p e t it io n e r but an
overwhelming number o f the 478 persons now imprisoned under
sentence o f death.
F lo r id a 's Death Row, housing 120 men and women, is
by fa r the most populous in the country. Yet i t now c le a r ly
appears that the c a p ita l punishment system which th is Court
considered in P r o f f i t t v . F lo r id a , 42S U .S . 242 (1976), is
not what the Court contemplated at that time. This d is c re
pancy underlies seve ra l issues on which p e t it io n e r seeks c e r
t i o r a r i . I t assumes added s ig n ific an ce because o f the mani
fe s t inconsistency between the F lo r id a Supreme C ou rt 's con
stru c tion o f the F lo r id a sta tu te and the co n stitu tio n a l r e
quirements subsequently recognized in Lockett v . Ohio.
____U .S . _____ , 57 L.Ed.2d 973 (1978), and B e ll v . Ohio.
____U .S . _____ , 57 L .E d .2d 1010 (1973).
However, the dec is ion o f the Court o f Appeals below
presents even graver issu es . By it s r a d ic a l con stric tion
o f the ro le o f fe d e ra l habeas corpus in death cases, that
dec is ion erects an almost impregnable b a r r ie r to the en
forcement o f fundamental c o n stitu tio n a l safeguards in the
jdeath sentencing processes that a f fe c t more than th ree -
;quarters o f the persons now on Death Row in the United
13/.S ta te s .— The w r it o f habeas corpus is "both the symbol and
1:18/
!— '5tatxsta.cs maintained by the N .A .A .C .P . Legal Defense and
Educational Fund, In c ., revea l that 360, or 75%, o f the
478 persons now on Death Row in the United S tates are
incarcerated in States w ith in the F ifth C irc u it .
-23 -
guardian o f in d iv id u a l l i b e r t y . " Peyton v. Rowe, 391 U.S.
iq /
54, 58 (1968 ).— But the courts below have ru led that a
fed e ra l habeas corpus p e t it io n e r is not e n t it le d even to an
ev iden tia ry hearing u p on 'p la in ly su b stan tia l fa c tu a l a l
legation s that the procedures under which he was condemned
jv io la te e s se n t ia l co n stitu tio n a l r ig h ts , and that h is death sen
tence is the product o f the id e n t ic a l a rb it ra ry , cap ric iou s ,
and d iscrim inatory c a p ita l sentencing pattern which th is
Court held unconstitu tiona l in Furman v. G eorg ia , 408 U.S.
238 (1972).
I f the dec ision o f the Court o f Appeals be taken l i t e r
a l ly when i t says that i t "assum e[s] fo r the sake o f argument
that the fa c tu a l a lle g a t io n s underlying . . . [p e t i t io n e r 's ]
contentions are true" and nevertheless ru le s that "p e t it io n e r
Icannot p re v a il on them as a matter o f law ," 578 F.2d at 590;
l
jP* 9a in f r a , then i t both fo rec lo ses fo r severa l hundred
I
|condemned inmates the m erits o f important con stitu tion a l
questions which th is Court took pains to reserve in P r o f f i t t
and Witherspoon v. I l l i n o i s , 391 U.S. 510 (1968); and i t a lso
a ttr ibu te s to P r o f f i t t the unprecedented holding that a
statute v a lid on i t s face cannot be challenged in i t s ap
p lic a t io n . I f the Court o f Appeals does not mean l i t e r a l l y
what i t says, then the e f fe c t o f i t s dec ision is to preclude
jthese inmates from obtain ing an ad jud ication o f unresolved
!con stitu tion a l issues perta in in g to th e ir death sentences
II
b e fo re they are executed. E ither way, review by th is Court
is c a lle d fo r .
i l iy See, e . g . , Smith v. Bennett, 365 U.S. 708, 712-713 (1961);
Secretary fo r Home A f fa i r s v. O 'B rien , [1923] A.C. 603, 609
(H.L. 1923).
-24 -
The Court has, o f course, approved c a p ita l punish
ment upon the assumption that i t s app lica tion would be
surrounded with proper and e f fe c t iv e guarantees aga in st
i r r e g u la r it y . Gregg v. G eorg ia , 428 U.S. 153 (1976);
P r o f f i t t v. F lo r id a , supra. But th is is a fa r cry from —
indeed, i t is the express an t ith e s is o f — what the Court
o f Appeals below has done by slamming the fe d e ra l courthouse
door aga in st the claims o f death-sentenced p risoners who
seek the w r it o f habeas corpus as th e ir la s t assurance that
the actua l adm in istration o f the death penalty and i t s
in f l ic t io n upon them conform to co n stitu tio n a l premises and
2 0 /Fourteenth Amendment requirem ents.— The guarantee or
the w r it has been sa id by esteemed authority to be "the most
21/
important human r igh ts p rov is ion in the C o n st itu t io n ."—
It s severe curtailm ent in cases where the "awesomeness o f
2 2/
the death pen a lty "— ■ p a r t ic u la r ly demands the w r i t 's se rv ice
as an ultim ate safeguard should not be l e f t unreviewed
23/"by the h ighest tr ibu n a l known to the Constitu tion . —
— The existence o f state ap p e lla te and postconviction process,
here invoked in vain , has not hereto fore been thought
" s u f f ic ie n t to a llow a Judge o f the United States to
escape the duty o f examining the fac ts fo r h im self when
i f true as a lle g e d they make the t r i a l ab so lu te ly v o id ."
Moore v. Dempsey, 261 U.S. 86, 92 (1923). See a lso Brown
v. A l le n , 344 U.S. 443, 554 (1953 )(d issen tin g opinion o f
Justice B la c k );
" . . . [ I ] t is never too la te fo r [fe d e ra l ] courts
in habeas corpus proceedings to look s t ra ig h t through
procedural screens in order to prevent fo r fe itu re o f
l i f e or l ib e r t y in fla g ra n t defiance o f the Constitu
tion - . . . Perhaps there is no more exa lted
ju d ic ia l f•unction."
^ -^Chafee, The Most Important Human Right in the C on stitu tion ,
32 B.U. L. REV. 143, at 143 (1952).
2 2 /
— Grisham v. la g an , 361 U.S. 278, 230 (1960).
— •' Ex parte M il l ig a n , 4 W all. 2, 111 (1566).
-2 5 -
I .
THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER FLORIDA'S DEATH
PENALTY STATUTE, AS INTERPRETED BY
THE SUPREME COURT OF FLORIDA AND
APPLIED BY THE TRIAL COURT IN THIS
CASE, UNCONSTITUTIONALLY RESTRICTS
CONSIDERATION OF MITIGATING
CIRCUMSTANCES.
In Lockett v. Ohio, ____U .S .____, 57 L.Ed.2d 973
(1978), th is Court in va lid a ted O h io 's death penalty statute
because i t precluded the- sentencing authority- from g iv in g
"independent m itigating weight" to a l l re levan t m itigatin g
circum stances. Id . at 990 (p lu r a l i t y op in ion ). The Court
held that
" - .. . the Eighth and Fourteenth
Amendments requ ire that the sentencer,
in a l l but the ra re s t kind o f c a p ita l
case, not be precluded from considering
as a m itigating fa c t o r , any aspect o f a
defendant's character or record and any
of. the circumstances o f the o ffen se that
the defendant p ro ffe rs as a bas is fo r a
sentence le ss than death ."
I b id . (Emphasis in o r ig in a l . ) The Court remarked that two
years e a r l i e r , in P r o f f i t t v. F lo r id a , 428 U.S. 242 (1976),
" s ix members o f th is Court assumed in approving the [F lo r id a ]
s ta tu te ,th a t the range o f m itigating fac to rs l is t e d in
. . . [F la . S tat. Ann. § 921.141(6 )] was not e x c lu s iv e ,"
Lockett v. Ohio, supra , 57 L.Ed.2d at 991 (p lu r a li t y
2d /
opinion) (emphasis ad d ed ).—
The Court re ite ra te d in Lockett:
"None o f the statu tes we sustained in
Gregg [v . G eo rg ia , 428 U.S. 153 (1976)]
and the companion cases c le a r ly operated
a t that time to prevent the sentencer from
considering any aspect o f the defendant's
character and record or any circumstances
o f his o ffense as an independently m itiga t
ing fa c to r ."
991 (p lu r a l i t y opinion) (emphasis added ).
-26 -
Id . at
I t is now apparent from the F lo r id a Supreme
C ou rt 's post-P r o f i t t construction o f the F lo r id a statu te
that th is assumption was in co rrec t . The Court o f Appeals
below recognized the tension between the view o f F lo r id a law
expressed by th is Court in P r o f f i t t and the more r e s t r ic t iv e
in te rp re ta t ion la t e r announced by the F lo r id a Supreme
Court in such cases as Cooper v. S ta te , 336 S o .2d 1133 (F la .
1976), but f e l t compelled to conclude that L o ck e tt 's treatment
o f P r o f f i t t had l e f t P r o f f i t t "sound law ," 57S F.2d at
620-621; pp. 39a-40a in f r a , because " [o ]b v io u s ly , we are w ith
out power or authority to o ve rru le the express fin d in g
o f the Supreme Court" that the F lo r id a statu to ry scheme
was co n st itu t io n a l. 578 F.2d at 621; p. 40a in f r a .
Just as obv iously , th is Court does not lack that
au th ority . I f the s ta te -la w p red icate o f i t s P r o f f i t t
dec is ion has subsequently been demonstrated to be wrong,
th is Court obv iously possesses ample power, to co rrect it s
misunderstanding, upon which — as we s h a ll sh o rt ly see —
p e t it io n e r 's l i f e is about to be fo r fe it e d .
Only one week a ft e r P r o f f i t t , the Supreme Court
o f F lo rid a e x p l ic i t ly held in Cooper v. S ta te , supra , that
the l i s t o f seven m itigatin g fa c to rs enumerated in the
S ta te 's death penalty sta tu te is exhaustive, and that no
m itigatin g circumstances other than those set fo rth by
the statu te may be considered in c a p ita l sentencing. The
court stated that
" . . . The so le issue in a sentencing hearing
under Section 921.141, F lo r id a Statutes
(1975), is to examine in each case the
item ized aggravaring and m itigatin g c i r -
cumstances. Evidence concerning other
matters have fsicl no p lace in that proceeding
— / —
any more than pure ly specu la tive matters
ca lcu la ted to in fluence a sentence through
emotional appeal. Such evidence threatens
the proceeding with the un d isc ip lin ed d is
c re tion condemned in Furman v. G eorg ia , 408
U.S. 238 (1972). . . .
As to p ro ffe red testimony concerning
Cooper's p r io r employment, i t is argued that
th is evidence would tend to show that Cooper
was not beyond r e h a b ilit a t io n . Obviously,
an a b i l i t y to perform g a in fu l work is gene
r a l l y a p re req u is ite to the reform ation o f
a crim inal l i f e , but an equ a lly v a lid fa c t
o f l i f e is that employment is not a guarantee
that one w i l l be law -ab id in g . Cooper has
shown that by h is conduct here. In anv event,
the L eg is la tu re chose to l i s t the m itigatin g
circumstances which i t judged to be r e l ia b le
fo r determining the appropriateness o f a death
penalty fo r ' the most aggravated and unm iti
gated o f serious crim es, ' and we are not fre e
to expand the l i s t . "
336 S o .2d at 1139 (footnote om itted; emphasis added). The
court derived th is in te rp re ta t io n from the le g is la t iv e intend
ment o f the 1972 sta tu te :
"Section 921.141(2) requ ires the ju ry to render
i t s advisory sentence 'upon the fo llow in g m atters:
(a) whether s u f f ic ie n t aggravating circumstances
e x is t as enumerated in subsection (6) ; (b) whether
s u f f ic ie n t m itigatin g circumstances e x is t as enu
merated in subsection (7 ) , which outweigh the ag
gravating circumstances found to e x is t . . . . '
(emphasis added ). This lim ita t io n is repeated in
Section 921.141(3 ), governing the t r i a l c o u rt 's
decision on the penalty . Both sections 921.141(6)
and 921.141 (7 )^ -^beg in w ith words o f mandatory lim i
ta tion . This may appear to be narrow ly harsh, but
under Furman un d isc ip lin ed d isc re t io n is abhorrent
whether operating fo r or aga in st the death p en a lty ."
££/ The numerical designations o f sta tu to ry subsections that
appear in F la . Stat.. Ann. § 921.141 and are c ited in Cooper
are erroneous. The subsection enumerating aggravating c i r
cumstances is (5 ), not " ( 6) , " and the one enumerating
m itigating circumstances is (6) , not " ( 7 ) . "
-2 8 -
Id . at 1139 n-7 (emphasis in o r ig in a l )
26/ Confronted with the inconsistency between Cooper and
Lockett, the F lo r id a Supreme Court has ju s t recen tly responded
by "perfo rm [ing ] a remarkable job o f p la s t ic surgery" on Cooper.
Shuttlesworth v. Birmingham, 394 U .S. 147, 153 (1969). In a b r i e f
opinion denying rehearing in Sonaer v. S ta te , F la . S.C . No. 52,642
(rehearing denied December 21, 1978), the court: sa id that " [ i ] n
Cooper, th is Court was concerned not w ith whether enumerated
fa c to rs were being ra ised as m itiga tion , but w ith whether the
evidence o ffe red was p ro b a t iv e ," id_. at pp. 1 - 2 . I t co lle c ted
a number o f e a r l ie r cases in which i t had purported ly sub s i le n t io
"approved a t r i a l c o u rt 's consideration o f circumstances in m itiga
tion which are not included on the sta tu to ry l i s t , " id . at p. 2;
and, c it in g the hold ing o f the Court o f Appeals below in p e t it io n e r '
case, i t upheld the F lo r id a sta tu te as consisten t w ith Lockett be
cause " [o ]b v io u s ly , our construction o f Section 921.141(6) has been
that a l l re levan t circumstances may be considered in m itigation , and
that the fac to rs l is t e d in the sta tu te merely in d ica te the p r in c ip a l
fa c to rs to be considered ," i b id .
s
For se v e ra l reasons, Sonaer does not thwart p e t it io n e r 's
challenge to § 921.141 under Lockett. F i r s t , Cooper simply does
not say what Sonaer says i t says. Cooper states e x p l ic i t ly that
the m itigating circumstances lis ted , in § 921.141 are exc lu s ive ,
and that "we are not fre e to expand the l i s t , " 336 S o .2d at 1139.
Nor do the other cases c ited in Songer say what they are a lle g ed
to say. A l l that were decided p r io r to Lockett p la in ly involved
sta tu to ry m itigation , and d id not endorse consideration o f non—
sta tu to ry m itigatin g circum stances. This Court has never accepted
s ta te ju d ic ia l re in te rp re ta t io n s o f s ta te law that involve "obvious
subterfuge to evade consideration o f a fe d e ra l is su e ." Radio
Station WOW, Inc, v. Johnson, 326 U.S. 120, 129 (1945). See, e . a . ,
Ward v. Love County, 253 U.S. 17 (1920). Second, Sonaer' s r e in
te rp re ta tion o f Cooper leaves § 921.141, as construed and recon
strued , unconstitu tiona l under Lockett. For, according to Sonaer,
the Cooper dec is ion app lies § 921.141 to exclude as not "p ro b a t iv e ,"
in te r a l i a , "p ro ffe re d testimony concerning Cooper's p r io r em
ployment [which] i t is argued . . . would tend to show that Cooper
was not beyond re h a b ilita t io n " (Cooper v. S ta te , sup ra , 336 S o .2d
a t 1139). Whatever Songer may mean by "p ro b a t iv e ," the concept
so exem plified involves a lim ita t io n upon the p resentation o f m it i
ga tin g evidence that is m an ifestly fa r narrower than Lockett w i l l
countenance. T h ird , s ta te -co u rt re v is io n o f s ta te -la w ru le s cannot
re t ro a c t iv e ly de feat the v in d ica tion o f fe d e ra l c o n s t itu t io n a l r ig h t s ,
i f l i t ig a n t s "cou ld not f a i r l y be deemed to have been apprised o f
i t s existence" when th e ir cases were be fo re the sta te c o u rts .
N .A .A .C .P . v. Alabama ex r e l . P a tte rson , 357 U .S . 449, 457 (1958).
Even i f Sonaer is deemed to have changed F lo r id a law fo r the fu tu re ,
i t cannot change what i t was a t the time o f p e t it io n e r 's t r i a l .
See, e . q . , Shuttlesworth v. Birmingham, 382 U .S. 87, 90-92 (1965) ;
Shuttlesworth v. Birmingham, 394 U.S. 147, 153-153 (1969). F in a lly ,
"we need not deal in assum ptions," id . at 156, concerning the law ofi
F lo rid a as i t was when p e t it io n e r was t r ie d fo r h is l i f e . For,
as we sh a ll see in the text that fo llo w s , p e t it io n e r 's t r i a l judge
e x p lic i t ly lim ited the ju ry 's and h is own consideration o f m it i
gating circumstances to the confines o f the s ta tu te , p re c is e ly as
Lockett fo rb id s . That alone is s u f f ic ie n t to void p e t it io n e r 's
death sencer.ce. See pp. 31-2 3 & none 23 in fry .
-2 9 -
As in Ohio, where " [ t ]h e lim its on consideration
o f m itigatin g fac to rs . . . appear to have been a d ire c t
[ l e g i s la t iv e ] response to Furman, " Lockett v. Ohio, supra ,
57 L .E d .2d at 986 n.7 (p lu r a li t y op in ion ), the F lo r id a
L e g is la tu re 's concern had been to narrow sharp ly the sentenc
ing d isc re t io n p o ss ib le in death cases. On March 20, 1972,
ju s t p r io r to Furman, the L e g is la tu re had passed a new c a p ita l
i sentencing law perm itting consideration o f m itiga tin g circum
stances "in c lud in g but not lim ited to" a l i s t o f fa c to rs enu
merated in the s ta tu te . Laws o f F lo r id a , Ch. 72—72 (1972).
The statu te was to take e f fe c t on October 1, 1972. But as a
re s u lt o f Furman, the new statu te was abandoned in favor o f
27y
the present F la . Stat., Ann. §921.141.
27/ The le g is la t iv e h is to ry o f § 921.141 makes i t in d is
pu tab ly p la in , as Cooper la te r he ld , that the sta tu to ry l i s t o f
m itigatin g circumstances was intended to be exc lu s ive . The o r i
g in a l House b i l l provided that both aggravating and m itigatin g
circumstances " s h a l l be lim ited to" ro ste rs o f enumerated fa c to rs .
Journal o f the F lo r id a House o f R epresen tatives, Spec ia l Session
1972 (November 29, 1972) 18 [h e re a fte r c ited as House Journal] .
The House's comment dec lares that "m atters to be considered are
lim ited only to those aggravating and m itigating circumstances
enumerated in subsections (3) and ( 4 ) I d . at 19. Thus b u l l
passed the House on November 29, 1972. Id . at 23.
The Senate amended the b i l l by ( i ) d e le t in g the words
" lim ited to" in the introductions to both ro s te rs , and ( i i ) p ro
v id ing that, as to both aggravating and m itigating circum stances,
the court could consider " [a ]n y other evidence the court deems
re levan t to sentence." Journal o f the F lo rid a Senate, Spec ia l
Session 1972 (November 30, 1972) 25 [h e re a fte r c ited as Senate
J o u rn a l]. The House, upon being advised o f these amendments,
exp ressly refused to concur. House Journal (November 30, 1972)
41, 42. The Conference Committee thereupon recommended that the
Senate recede from these amendments, among others; and i t returned;
e s s e n t ia lly to the House version in the Conference Committee b i l l >
that u ltim ate ly passed both houses. Senate Journal (December 1, !
1972) 37, 39-40; House Journal (December 1, 1972) 43, 50-52.
i
A techn ical oversigh t in the tran sc rip t io n o f the
Senate amendments led to some confusion be fo re th is Court at the
time o f P r o f f i t t . The Senate Journal c le a r ly r e f le c t s that the
Senate voted to d e le te the words " lim ited to" with respect to both
aggravating and m itigating circum stances, so that the ouI j. would
[Foocnoue 27/ continues on next p a g e .]i
i
I
In p e t it io n e r 's case, the t r i a l court scrupulously-
adhered to the L e g is la tu re 's design - Its charge to the ju ry
p la in ly stated that " [ t ]h e m itiga tin g circumstances which
you may consider, i f e stab lish ed by the evidence, are th ese ,"
and then proceeded to l i s t verbatim the seven m itigatin g fac to rs
28/
set fo rth in the s ta tu te - M it. T. 79.— ' And in i t s "F indings * 1
Footnote 27/ continued
read: "Aggravating circumstances s h a ll be [ l±m±feed-fee] the
fo l lo w in g : . . " and "M itiga tin g circumstances s h a ll be [lim ited
fee] the f o l lo w in g : - . . . " Senate Journal (November 30, 1972) 25.
However, th is p a ra lle lism was not tran scribed into the b i l l
transm itted to the House la t e r that day. That tex t, as reported
in the House Journal, erroneously reads as fo llo w s : "Aggra
vating circumstances s h a ll be lim ited to the f o l l o w in g : . . . , "
and "M itiga tin g circumstances s h a l l be [iimifeee-fee] the fo llo w
ing :. . . . " House_jJjDurnal_, [November 30, 1972) 41. The Conference
Committee, re s to r in g the House's version to a d ra ft which adopted
the Senate 's p rov is ion s on many other issu es , fa i le d to co rrec t
the e rro r that had crept in to the tran sc rip t io n o f the Senate
b i l l . This Court, w ithout the b e n e fit o f the le g is la t iv e h is to ry ,
understandably but erroneously emphasized the n o n -p a ra lle l in
troductions in § 921.141 (5) and (6) to the ro ste rs o f aggra
vating and m itiga tin g circum stances. P r o f f i t t v. F lo r id a , supra ,
i 428 U .S. a t 250 n -8. However, the F lo r id a Supreme C ou rt 's reading
j o f le g is la t iv e in tent in Cooper v . S ta te , supra , 336 So. 2d at
| 1139 n .7 , is c le a r ly more accurate.
I
| -8/ Although the t r i a l ju ry 's sentencing recommendation is
merely advisory under F lo r id a law, there can be no doubt
that a recommendation aga in st death returned by a ju ry pro
p e r ly in structed pursuant to Lockett would have spared p e t i
t io n e r 's l i f e by v irtu e o f the ru le o f Tedder v. S ta te ,
322 So .2d 908. (F la . 1975), noted in P r o f f i t t v. F lo r id a ,
su p ra , 428 U .S . at 248-250. See, e .g . . Burch v. S tate , 343
S o .2d 831 (F la . 1977); Buckrem v. S ta te , 355 S o .2d 111 (F la .
1973); and see p . 4 f in fra . Therefore, the in stru c tion which
lim ited the ju r y 's consideration o f m itigatin g circumstances
to those enumerated in F la . S ta t . Ann. § 921.141(6) was p la in ly
p re ju d ic ia l . Since th is in stru ction was not conformable to
1 the co n stitu tio n a l requirements o f Lockett, the ju ry 's recom-
| j mendation o f death and p e t it io n e r 's death sentence stand in
J j exactly the same p os it ion as any ju ry ve rd ic t and ensuing ju d g -
| ment rendered upon ju ry in struction s that perm it them to be
rested upon a fe d e ra lly unconstitu tiona l ground. £ .g . , T erm in ie llc
v. Chicago, 337 U.S. 1, 4-5 (1949); Strombero v. C a l i fo r n ia ,
! 283 U.S. 359, 363-370 (1931). For i t is c le a r that the same
b a s ic procedural p rotections necessary to assure aga inst un
con stitu tio n a l v e rd ic ts apply to death -penalty t r i a l s as to
t r i a l s o f g u i l t o r innocence. P r a s n a l l v. G e o r g ia , ____ U .S. ____,
ji 58 L.2d.2d 207 (1978) .
-3 1 -
i
Upon Which Sentence o f Death is B ased ," the court equally
firm ly re s t r ic te d it s an a ly s is o f m itigation to the statutory
m itigating circumstances sp e lle d out w ith in § 921.141(6).
R. 41. See pp. 8-9 supra .
This r e s t r ic t iv e approach was p a r t ic u la r ly damaging
to p e t it io n e r because o f the strength o f seve ra l commonly
recognized m itigating circumstances that are presented by
the fa c ts o f h is case but f a l l outside the narrow confines
o f the F lo rid a sta tu te . Joseph Szymankiewicz' s treatment o f
John Spenkelink, even i f in s u f f ic ie n t to d rive a man to the
point o f "extreme mental o r emotional d istu rban ce ," could
sure ly be found to constitu te provocation o f the most severe
29 /natu re ;— yet provocation by the v ictim is not l i s t e d as a
30/
m itigatin g fa c to r in the F lo r id a statu te— and thus could
j nor. be considered at sentencing. S im ila r ly , had the F lo r id a
j
I statute conformed to the d ic ta te s o f Lockett, the t r i a l jury
i i or jjudge might have considered in m itigation that p e t it io n e r 's
l | 5j! o ffense aga in st Szymankiewicz was "committed under circum-
,1 stances which the defendant be lieved to provide a moral
29/— • See pp. 5 - - 6, 9 -1 0 n .8 supra. The Court o f Appeals
below speculated that the ju ry "apparently d isb e lie v ed "
p e t it io n e r 's testimony that Szymankiewicz had tormented
him. 578 F.2d at 586 n .3 ; p. 5 a n. 3 in f r a . But we
have no sp ec ia l v e rd ic t to that e f fe c t , and the ju ry
could ju s t as e a s i ly have be lieved p e t it io n e r 's testimony
but determined that Szymankiewicz1s conduct d id not con
s t itu te a m itigating fa c to r w ithin the c o u rt 's con fin ing
in stru ction s. Speculation that mixed find ings o f fa c t
and law were not a ffe c te d by the unconstitu tiona l standard
under which they were made has never been indulged by th is
Court, see, e . g . , Rogers v. Richmond, 365 U.S. 534 (1961);
Shuttlssworth v. Birmingham, 382 U.S. 87 (1965), and is
p ecu lia r ly inappropriate " [ i ]n death cases [where] doubts
. . . should be reso lved in favor o f the accused ." Andres
v. United S tates, 333 U.S. 740, 752 (1943).
: i
i| ^0/Compare Vernon's Tax. Code Crim. Pro. Ann., A rt. 37.071 (b) (
(Supp. 1978); S.C. Code § 15 -3 -20 ( C ) ( b ) (8) (Supp. 1977).
-32 -
A 4
ju s t i f ic a t io n or extenuation fo r h is conduct."— But that
32/
fa c to r a lso is not enumerated in the F lo r id a sta tu te and
so could not be considered to weigh in the ba lance fo r
p e t it io n e r 's l i f e .
The Court o f Appeals below reasoned that since
p e t it io n e r had not been precluded from t e s t i fy in g at t r i a l
as to Szymankiewicz1s tormenting behavior, Lockett had not
been v io la te d . 578 F.2d at 621; p. 40a in f r a . But that
evidence was o f l i t t l e a v a i l to p e t it io n e r under a ju ry
in stru ction which im perm issibly rendered such testimony
"re lev an t fo r m itigatin g purposes on ly i f i t . . . [was]
determined that i t . . . [shed] some l ig h t on one o f the . . .
sta tu to ry m itiga tin g fa c to r s ," Lockett v. Ohio, supra .
57 L.Ed.2d at 992 (p lu r a li t y opin ion ) . ^ / Sandra Lockett,
too, was not precluded from o f fe r in g anything in m itiga tion .
But, as in th is case, the Ohio sta tu to ry scheme forbade her
sentencer to consider her most powerfu l and persuasive m it i
ga tin g evidence as "independently m itigatin g f a c t o r [ s ] , " i d .
at 991, and instead requ ired that i t f i t p re c is e ly w ith in one
o f a few sp e c ifie d standards. To d is t in gu ish p e t it io n e r 's
case from hers, o r F lo r id a 's sta tu te from O h io 's , upon the
ground assayed below th ere fo re abridges Lockett in a fash ion
that p la in ly warrants review by c e r t io r a r i .
31/ American Law In s t itu te . Model Penal Code § 2 1 0 .6 (4 )(d)
(P .O .D . 1962). C f. Harry Roberts v. Lous is ian a . 431 U.S .
633, 637 (1977 ).
32/ Compare C a l. Penal Code Ann. §190.3 (e) (Supp. 1978); Ky.
Rev. S ta t. §532.025 (2) (b) (4) (Supp. 1978); Tenn. Code
Ann. §39-2404 ( j ) (4) (Supp. 1978).
33/ The Court o f Appeals i t s e l f characterized the F lo r id a
c a p ita l sentencing process as requ ir in g the ju ry to
consider whether " s u f f ic ie n t s ta tu to r ily -d e fin e d m itiratincr
circumstances e x is t that outweigh the aggravating circum
stances," 578 F.2d at 588; p. 7a in fra (emphasis added),
[Footnote 33/ continues on next p age/
-3 3 -
I .
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER PETITIONER WAS DE
PRIVED OF AN ADEQUATE HEARING ON HIS
CLAIMS THAT FLORIDA'S CAPITAL PUNISH
MENT STATUTE WAS BEING APPLIED IN AN
ARBITRARY AND DISCRIMINATORY PATTERN
IN VIOLATION OF THE EIGHTH AND FOUR
TEENTH AMENDMENTS
I
P e t it io n e r 's fe d e ra l habeas corpus p e t it io n a lle ged
jthat the 1972 F lo rid a death penalty statu te is being app lied
j
a r b i t r a r i ly and in a pattern which in v id io u s ly d iscrim inated
f —
again st him on the grounds o f race, sex and economic condi
tion . The d is t r ic t court denied any hearing on the claims
jof sexual and economic d iscrim ination and a ffo rded an
|
abbreviated hearing, upon f iv e days' n o tice , on the a r b i -
!
ijtrariness and r a c ia l d iscrim ination claim s. But even the
evidence presented at th is hearing was u ltim ate ly d isregarded
fo r purposes o f the decisions o f both courts below.
i
The D is t r ic t Court dism issed the p e tit io n on
the m erits and denied p e t it io n e r ''ad d it ion a l time [which he
| requested] to completely present h is case to the c o u r t ,”
• Order o f September 23, 1977, at R. 161, because i t con
cluded that the issue o f a rb it ra r in e s s was fo rec lo sed by
P r o f f i t t v. F lo r id a , sup ra , i d . at R. 163, and that the r a c ia l
discrim ination claim was le g a l ly m erit less inasmuch as i t d id
not focus e xc lu s iv e ly on the race o f the condemned, _id. at
I R. 165. The Court o f Appeals a ffirm ed on the ground that
j
!jno ev iden tiary hearing $t a l l was requ ired to be held , be
ll cause p e t it io n e r 's claims were in s u f f ic ie n t "as a m atter of
i law ," 573 F .2d at 590; p. 9a in f r a . I t reasoned that since
j
jj th is Court had decided in P r o f f i t t that F lo r id a had a
II
ji________________________
i1 Footnote 33 / continuedt! "
and requ irin g the judge to consider whether there are " in
s u f f ic ie n t s ta tu to r ilv -d e fin e d miticratincr circumstances
to outweigh the aggravating circumstances found to e x is t , "
i b id . (emphasis added ).
j
I
I
"p roperly drawn statu te . . . [to ] determ in [e ] which convicted
defendants rece ive the death penalty and which rece ive
l i f e imprisonment, . . . the a rb it ra r in e s s and capriciousness
condemned in Furman have been con c lu sive ly removed. 11
578 F.2d at 605; p. 24a in fra (emphasis added)
I t thus in terp reted P r o f f i t t to preclude any challenge
to the way in which the death penalty is a c tu a lly being
I
imposed under the F lo r id a sta tu te .
The issue is squarely presented whether th is
is indeed what P r o f f i t t means. We re sp e c t fu lly submit
i that i t is not, and that the Court o f Appeals ' construction
I
| o f P r o f f i t t should be corrected by th is Court. Such a
construction denies p e t it io n e r and th ree -quarte rs o f the
—- In a footnote to i t s op in ion , the Court o f Appeals added
that, even were p e t it io n e r e n t it le d to an ev iden tia ry
hearing on h is cla im s, i t would be indisposed to fin d
that the D is t r ic t Court had abused i t s d isc re t io n in
denying him a continuance to complete h is fa c tu a l
presentation . 578 F.2d at 590-591 n . l l ; pp. 9 a - lo a n . l l
in f r a . However, the expression o f an observation o f th is
so rt in footnote can obviously not be viewed as unaffected
by the Court o f Appeals ' d ec is ive holding that p e t it io n e r
was e n t it le d to no ev iden tia ry hearing o f any kind, or
as intended to be an independent ground o f d isp o s it io n o f
the appeal. And, in any event, the D is t r ic t C ou rt 's
exerc ise o f i t s d isc re tion was squarely based upon i t s
own view, subsequently approved by the Court o f Appeals,
that p e t it io n e r was not e n t it le d to prove h is case fa c tu a lly
because i t was le g a l ly lack ing in m erit. Order o f
September 23, 1977, a t R. 161-165.
i .
jj — ^"The a lle g a t io n that F lo r id a 's death penalty is being
d isc r im in a to rily app lied to defendants who murder whites
is nothing more than an a lle g a t io n that the death penalty
is being imposed a r b i t r a r i ly and c a p r ic io u s ly , a contention
we prev iously have considered and re je c te d ." 578 F.2d at
613; p. 32a in f r a . The court d id not com pletely fo rec lo se
fe d e ra l habeas corpus in terven tion on beh a lf o f a condemned
p e tit io n e r cha llenging the procedures under which he was
sentenced to d ie , but i t requ ired such a p e t it io n e r to
"show that the fac ts and circumstances o f h is case are so
c le a r ly undeserving o f c a p ita l punishment that to impose i t
would be patently un just and would shock the conscience," 57
F. 2d a t 606 r..2S; p. 25a n.23 in f r a . In th is extraord inary
s itu a tio n , r e l i e f "might be w arran ted ." I b id . See a lso 573
I: F.2d at 614 n.40; o. 33a n.40 in fra .|! * ---------
H -3 5 -
I
Death Row prisoners in th is country the r igh ts preserved
by severa l ind ispensable c o n stitu tio n a l p r in c ip le s .
F i r s t . the d e c is io n ign o res the d i f f e r e n c e between
an attack on- the f a c i a l c o n s t i t u t io n a l i t y o f a s ta tu te and a
j challenge to the way in which the statu te is adm inistered.
I
I This is an o ld and fundamental d is t in c t io n . In Yick Wo
j v. Hopkins, 118 U.S. 356 (1886), n early a century ago, th is
Court confirmed the- a v a i la b i l i t y o f habeas corpus r e l i e f on
the ground o f d iscrim inatory enforcement o f a f a c ia l ly v a lid
s ta tu te :
" . . . Though the law i t s e l f be f a i r on
i t s face and im partia l in appearance, yet,
i f i t is app lied and adm inistered by pub lic
authority with an e v i l eye and an unequal
hand,, so as p ra c t ic a l ly to make un just and
i l l e g a l d iscrim inations between persons in
s im ila r circum stances, m ateria l to th e ir
r ig h ts , the d en ia l o f equal ju s t ic e is s t i l l
within the p roh ib it ion o f the C on stitu tion ."
118 U.S. a t 373-74. See Guinn v. United S ta te s , 238 U.S.
347 (1915); N o rris v. Alabama, 294 U.S. 587 (1935); Lane
v. W ilson , 307 U.S. 268 (1939); Wright v. G eo rg ia , 373 U.S.
284 (1963); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969);
Turner v. Fouche, 396 U.S. 346 (1970); A lle e v. Medrano,
416 U.S. 802 (1974).
The court below acknowledged tiiat the "Court in
; P r o f f i t t ind icated that i t s concern was wi-th the co n stitu -
, t io n a lity o f the [F lo r id a ] statu te on i t s fa c e ," 578 F.2d at
jj 601; p. 20a in f r a , but then read "on i t s face" to mean that
I
ij th is Court had held that the statu te "conc lu sive ly removes
i the a rb it ra r in e s s and capric iousness . . . held v io la t iv e o f
ii
Ij
j the Eighth and Fourteenth Amendmen-s," 578 F.2d at 604; p. 23a
-3 6 -
in f r a . Such an in te rp re ta tion se r io u s ly misconceives
the C ou rt 's 1976 c a p ita l punishment d e c is io n s .— ^ Those
cases d id not fo rec lo se (as they could not, w ithout over
ru lin g Tick Wo and a century o f co n stitu tio n a l j u r i s
prudence) a death sentenced p r is o n e r 's r ig h t to prove that the
adm inistration o f the Georgia, F lo r id a or Texas statu tes
in th e ir actua l operation and ap p lica t io n to h is case f lo u t
|constitu tiona l p ro h ib it io n s aga in st a rb it ra ry and d iscrim inatory
c a p ita l sentencing.— ^ See Gardner v. F lo r id a , 430 U.S. 349,
361 (1977) (p lu r a li t y o p in io n ). Indeed, i t would be d i f f i c u l t
to, reconc ile G regg, P r o f f i t t and Jurek with Furman (whose
v i t a l i t y they rea ffirm , 428 U.S. a t 195-196 n n .46,47) except
upon the assumption that th is Court in the la t e r cases intended
the various safeguards o f the new p o s t -Furman death penalty
i
|laws to have some p ra c t ic a l e f fe c t , and not simply to "paper
! over" what Furman had condemned. Woodson v. North C aro lin a ,
|
!428 U .S. 280, 302 (1976 )(p lu r a l i t y op in ion ).
III
Second, the dec ision below drains Furman o f a l l
meaning. Notwithstanding the p a r t ia l ly d ivergent views ex
pressed by the m ajority Justices in that case, Furman
contains a v i t a l least-common denominator, expressed in the 1
1 g/
— I t was there fore deemed dec is iv e that " [t ]h e F lo r id a statute
held con stitu tion a l in P r o f f i t t v. F lo r id a , sup ra , was
Section 921.141, the id e n t ic a l statu te the p e t it io n e r
challenges in the case at hand," 578 F.2d a t 601; p. 20a
in f r a .
^ T h e court below was not alone in fe e lin g i t s e l f constrained
by P r o f f i t t to d isregard evidence o f the a rb it ra r in e s s
with which the death penalty is a c tu a lly app lied in
F lo rid a . Concurring in the F lo r id a Supreme C ourt 's
den ia l o f post-conv iction r e l i e f to p e t it io n e r , Mr. Jus
t ice Hatchett remarked:
" I t is apparent to me that the death penalty
[Footnote 37/ continues on next page.
-3 7 -
I
: fo llow in g two form ulations:
| i
" . . . [T ]he Eighth and Fourteenth
Amendments cannot to le ra te the in f l ic t io n
o f a sentence o f death under le g a l systems
that permit th is unique penalty to be . . .
wantonly and . . . fre ak ish ly im posed."
Id . a t 310 (concurring opinion o f Mr. Justice S tew a rt ).
" . . . [The Eighth and Fourteenth
Amendments are v io la te d i f ] the death
penalty i s exacted with g rea t infrequency
even fo r the most atrocious crimes and . . .
i there is no meaningful ba s is fo r d is t in gu ish
ing the few cases in which i t is imposed from
the many cases in which i t is n o t ."
Id . at 313 (concurring opinion o f Mr. Justice W h ite ).
I
I Furman there fore stands fo r the p roposition that the a rb it ra ry
li
and capric ious app lica tion o f the death penalty v io la te s the
Eighth and Fourteenth Amendments.
The p re v a ilin g opinions in Gregg v. G eorg ia ,
428 U.S. 153 (1976), e x p l ic i t ly re a sse rt that " [ t ]h e bas ic
i
jj concern o f Furman centered on those defendants who were being
38/
I condemned to death cap ric io u s ly and a r b i t r a r i l y , " — and that
i ■'1
| "Furman1s bas ic requirement" o f re g u la r ity in the c a p ita l
Footnote 37/ continued
under the F lo r id a statu tory scheme is being
administered in an a rb it ra ry and capric ious
manner inconsisten t with the premises under
ly in g Furman v. G eorg ia , 408 U .S. 233 (1972),
State v. Dixon, supra, and P r o f f i t t v. F lo r id a ,
supra. But th is issue was apparently fo re
closed by the United States Supreme Court in i t s
decision in P r o f f i t t . "
350 So. 2d at 88; p. 4d in f r a .
38/
— Gregg v. G eorgia , supra , 428 U.S. at
Justice Stewart, Mr. Justice Pow ell,
see a lso id . at 222, 224 (opinion o f
by the Ch ief Justice and Mr. Jusrice
206 (opinion o f Mr.
and Mr. Justice Stevens);
Mr. Justice White, jo ined
R ehnqu ist).
a su b stan tia lsentencing process— was designed to avert "
r i s k " ^ / that uncontro lled procedures would re su lt in ju r ie s
acting "wantonly and fre ak ish ly [to ] impose the death sen
tence. There is no con stitu tion a l lo g ic that could
fo rb id a procedure because o f i t s propensity to produce a
p a r t ic u la r r e su lt , unless the re su lt i t s e l f is forbidden
by the Constitu tion . And i f the re s u lt o f a rb it ra ry and
discrim inatory in f l ic t io n o f the death penalty is forbidden
by the Eighth and Fourteenth Amendments — as Furman, G regg,
P r o f f i t t and Jurek a l l declare — then there can be no lo g ic a t
a l l in denying p e t it io n e r the opportunity to prove that th is
re su lt is occurring in F lo r id a and occurred in h is case.
The existence o f the statu tory procedures which th is Court
42/
sustained " [o ]n th e ir face" in P r o f f i t t — cannot support
such a d en ia l, fo r as Mr. Justice White succ inctly observed
in Furman:
" . . . [ 1 ] e g is la t iv e 'p o lic y ' is . . .
n ece ssa rily defined not by what is le g i s la t iv e ly
authorized but by what ju r ie s and judges do in
exerc is in g the d isc re t io n . . . con ferred
upon them."
Furman v . G eorg ia , supra , 408 U.S. at 314 (concurring op in ion ).
— ^Woodson v. North C a ro lin a , 428 U.S. 280, 303 (1976 )(opinion
of Mr. Justice Stewart, Mr. Justice Pow ell, and Mr. Justice
S teven s ).
— ^See Gregg v. G eorg ia , supra , 428 U.S. at 138 (opinion o f
Mr. Justice Stewart, Mr. Justice Pow ell, and Mr. Justice
S teven s ).
— '■ Gregg v. G eorg ia , supra, 423 U.S. at 207 (opinion o f Mr.
Justice Stewart, Mr. Justice Pow ell, and Mr. Justice
Stevens). See a lso id . at 195.
42 /
— P r o f f i t t v. F lo r id a , supra, 428 U.S. at 251 (opinion o f
ilr. Justice Stewart, Mr. Justice Pow ell, and Mr.
Juspice Stevens>. See a lso m * an >̂53.
-3 9 -
Third, the court below held that in order to
prove r a c ia l d iscrim ination e n t it l in g him to r e l i e f , p e t i
t ioner would have to show a r a c ia l ly d iscrim inatory in tent
| or purpose, as requ ired in other areas by th is C ou rt 's
decisions in Washington v. D av is , 426 U .S. 229 (1976) , and
V illa g e o f A rlington Heights v. M etropolitan Housing Develop
ment C o rp ., 429 U.S. 252 (1977). 578 F.2d at 615; p. 34a in fra .
i1 The court " [a ]ssum [ed] fo r the sake o f d iscussion that
!
j Section 921.141 does have a r a c ia l ly d isp roportionate impact
i |
jw ith respect to the race o f f i r s t degree murder v ic t im s ," but
I held that p e t it io n e r had not shown the requ ired "in ten tio n a l
j l
o r purposefu l d isc r im in a t io n .” I b id . This apparently means
that a sub jective r a c ia l animus must be shown by proof d irected
to sentencing ju r ie s ' o r judges ' s ta tes o f mind, because
p e t it io n e r p la in ly a lle g ed that r a c ia l b ias was exh ib ited by
the pattern o f death sentences a c tu a lly meted out by the
j F lo rid a courts under the S ta te 's 1972 law, P e t it io n , 'I 12 (J) ,
R .33-34, and the Court o f Appeals held that he was not en-
I
j t i t le d to a hearing on th is o r any other claim , 578 F.2d atj
; 590; p. 9a in fra . See pp. 19 - 20 supra .
j
Surely , any such requirement — that a man condemned
to d ie pursuant to a death sentencing pattern based on race
must a lso demonstrate the r a c ia l m otivation underlying theI
• I
j pattern in o rder to p re v a il upon a claim that h is l i f e is
! I
i j being taken uncon stitu tion a lly — derogates bas ic p r in c ip le s
II
| j
|| that have o rev iously informed th is C ou rt 's decisions
!
II invo lv ing r a c ia l issues in death cases. See, e . g . , Averv
I — -------
j I
j l v. Georgia, 345 U.S. 559 (1953) ; Coleman v. Alabama, 389 U.S.
22 (1967) Indeed, n e ith er Washington v. Davis nor
A rlington Heights requ ires such a demonstration even in a
n on -cap ita l case. The ru le that r a c ia l ly d i f f e r e n t ia l
impact alone does not constitu te d iscrim ination
^ / p e t i t io n e r 's submission below (a lte rn a t iv e ly to the argument
that the D is t r ic t Court had im properly denied him the con
tinuance necessary to prepare and present h is case on d is
crim ination com pletely) was that he had e stab lish ed a prima
fa c ie case o f r a c ia l d iscrim ination w ith in the p r in c ip le that
" [o lnca a prima fa c ie case o f in v id ious d iscrim ination is
estab lish ed , the burden o f p roof s h ift s to the State to
rebut the presumption o f unconstitu tiona l a c t io n ." Alexander
v. Lou is ian a , 405 U.S. 625, 631-632 (1972). See a lso Turner
v. Fouche, 396 U .S. 346;, 361 (1970) . P e t it io n e r proved that,
although the numbers o f homicides committed aga in st whites
and blacks in the State o f F lo r id a are v i r t u a l ly id e n t ic a l,
104 o f the 113 persons on F lo r id a 's Death Row had been
sentenced to d ie fo r k i l l in g w hites. See pp. 4 f - 5f in f r a .
Even when consideration is lim ited to felony-m urder cases,
a four-to -one* d isp a r ity in death sentencing o f persons who
had k i l le d white v ictim s, as compared to persons who had k i l le d
black v ictim s, remains. See pp. 8f - I l f . In view o f the
ultim ate ground o f decision by the F ifth C irc u it , i t is
unnecessary fo r th is Court to consider whether these figu re s
and the other evidence summarized in Appendix F in fra do
e s ta b lish a prima fa c ie case. I t is s u f f ic ie n t fo r re v e rsa l
i f , as the Court o f Appeals denied, p e t it io n e r could have
proved h is case by the method which he undertook, without
seeking in add ition to prove r a c ia l animus d ir e c t ly . How
ever, we may note that, in fin d in g that "F lo r id a o ffe re d
c red ib le evidence, ev iden tly b e lie v ed by the d is t r ic t court"
to exp la in the r a c ia l d isp a r ity demonstrated by p e t it io n e r ,
573 F .2d a t 615; p. 34a in f r a , the Court o f the F ifth
C irc u it simply m isread the record. The d is t r i c t court made
no fin d in g a t a l l on the S ta te 's evidence; in stead i t con
cluded as a matter o f law that the "focus o f any inqu iry
into the ap p lica tion o f the death penalty must n ece ssa rily
be lim ited to the persons who rece ive i t ra th er than th e ir
v ic t im s .” R. 165.
-4 1 -
I
" . . . i s not to say that the necessary
! d iscrim inatory r a c ia l purpose must be ex
press o r appear on the face o f the sta tu te ,
or that a la w 's d isp roportionate impact is
ir re le v a n t . . . . A s ta tu te , otherw ise
neutra l on i t s face , must not be app lied so as
in v id io u s ly to d iscrim inate on the b a s is o f
race . Yick Wo v . Hopkins, 118 U .S . 356 (1886 )."
j Washington v . D av is , supra , 426 U .S . a t 241. See, e .c r.,
Castaneda v . P a rtid a , 430 U .S . 482 (1977).
In any event, p e t it io n e r has challenged the adm in istra
t ion o f F lo r id a 's p o s t -Furman sta tu to ry scheme not on ly on Equal
Protection grounds, but a lso on the grounds that i t is being
| app lied a r b i t r a r i ly in v io la t io n o f the Eighth Amendment and
M /
Due Process. His showing o f gross ra c e -o f-v ic t im d ip a r it ie s
goes to both claim s. For the la t t e r purposes, at le a s t , th is
j
Court has recognized that the death penalty is q u a lit a t iv e ly
I d if fe r e n t from other crim inal punishments and involves a
j
i "corresponding d iffe ren ce in the need fo r r e l i a b i l i t y in the
i
I
| determ ination that death is the appropriate punishment" in a
! p a r t ic u la r case . Woodson v . Worth C a ro lin a , 423 U .S ‘,1 280, 305
I
I (1976) (opinion o f Mr. Justice Stewart, Mr. Justice Pow ell and
I
Mr. Justice S tevens). See a lso Gardner v . F lo r id a , 430 U .S . 349,
357-358 (1977) (p lu r a li t y o p in io n ); id . at 363 (opinion o f Mr.
Justice W h ite ); Lockett v . Ohio, ____ U .S .____ , 57 L .Ed. 2d
973, 989 (1978) (p lu r a l i t y o p in io n ). But the death penalty can
I
I hard ly be "ap p rop ria te ," and the dec isions to i n f l i c t i t can
II c e rta in ly not be accepted as " r e l i a b le , " i f i t is being used
i i
I
j j along s ta rk ly r a c ia l l in e s . In th is context, the standard
i!
! I I
|| 44/ The Court o f Appeals, a f t e r fa u lt in g p e t it io n e r 's Equal
P rotection claim fo r fa i lu r e to focus upon "seme sp e c if ic
act o r acts evidencing in ten tion a l o r purposefu l r a c ia l
discrim ination against him," 578 F.2d at 614 n.40; p.33a
n. 40 in f r a , based upon it s reading o f Washington v . Davis
and V illacre o f A rlin gton H eigh ts, th e re a fte r disposed o f
p e t it io n e r 's Eighth Amendment and Due Process claims on
s im ila r errounds without any indeoendent a n a iv s is .
!: ' -4 2 -
to provide the scru tin y demanded o f procedures fo r d ispensing
l i f e and death. C f . Gardner v . F lo r id a , supra.
F in a l ly , the dec is ion below im properly d isa llo w s con
s id e ra t io n o f the race o f murder victim s as an in d ica to r o f
whether the death penalty fo r murder is be ing con stitu tion
a l l y ap p lied . Here again , both p e t it io n e r1s Equal P ro tection
claim and h is Eighth Amendment claim s o f a rb it ra r in e s s and
excessiveness are im plicated ; fo r , whatever the th e o re t ic a l
ju s t i f ic a t io n s o f c a p ita l punishment may be, i t s ac tua l use
to punish not the d e lib e ra te tak ing o f human l i f e but the
tak ing o f white human l i f e as contrasted w ith b lack human l i f e
presents a very d i f fe r e n t Eighth Amendment issu e . P e t it io n e r
a lle g e d and sought the opportunity to prove that the F lo r id a
death sentencing system in i t s p ra c t ic a l operation reserves the
extreme punishment almost e x c lu s iv e ly fo r defendants convicted
o f k i l l i n g w hites, and that i t s p e rs is te n t va lu a tion o f white
l i f e over b lack l i f e resu lted in h is being sentenced to d ie fo r
a crime that would not have incurred the death penalty i f
Joseph Szymankiewicz had been b la ck .
The courts below he ld , however, that the system atic
use o f a death penalty sta tu te to v i s i t c a p ita l punishment
upon k i l l e r s o f whites in cases where k i l l e r s o f b lacks
would never rece ive i t cannot be shown to support e ith e r an
45/
Equal P rotection or an Eighth Amendment v io la t io n . These
4.5/ The Court o f Appeals concluded that p e t it io n e r 's Equal
P rotection claim based upon a pattern o f c a p ita l sentences
dispensed according to the race o f the v ictim was "m erit -
[Footnote 45/ continues on next page .]
app lied below fo r p roo f o f r a c ia l d iscrim ination is p e c u lia r ly
im provident: i t is unsupported by au thority and inadequate
-42 -
I
j dec isions reso lve issues that th is Court has never considered—
reason enough, we re sp e c t fu lly suggest, fo r c e r t io r a r i , since
the issues are momentous both in t r in s ic a l ly and because o f
M /
the number o f human liv e s which turn upon them. But in
add ition , the decisions appear p la in ly to f l y in the teeth o f
!
j the h is t o r ic a l purposes o f the Equal P ro tection Clause and o f
the va lues which h is to ry requ ires to be considered in applying
the C ruel and Unusual Punishments Clause to a penalty so
severe that the en tire ju d ic ia l machinery o f a State w i l l
! o rd in a r i ly to le ra te i t s in f l ic t io n on ly in the case o f crimes
| aga in st the dominant race . The Framers o f the Fourteenth
j
I Amendment ind isputab ly meant to outlaw adm in istrations o f
j crim inal ju s t ic e which punished crimes aga in st whites by
| p en a lt ie s that were not employed-to punish s im ila r crimes
I
j aga in st b lack s , and they meant to do so whether th is so rt o f
j1
ji d en ia l o f the equal p ro tection o f the crim inal laws was
ji Footnote 45/ continued
j
le ss " as "a matter o f law ," 578 F.2d at 616? p. 35a in f r a ,
since only in a case presenting "some sp e c if ic act or acts
evidencing in ten tion a l o r purposefu l r a c ia l d iscrim ination
aga in st him . . . , e ith e r because o f h is own race o r the
race o f h is victim " can a habeas p e t it io n e r invoke the ben
e f i t o f the Equal P ro tection C lause. 578 F.2d at 614 n.40;
p. 33a n.40 in f r a . P e t it io n e r 's Eighth Amendment claim was
s im ila r ly d ispatched. I b id . The re s u lt was to a ffirm the
holding o f the D is t r ic t Court that "the focus o f any inqu iry
into the app lica tion o f the death penalty must n ece ssa rily
be lim ited to the persons who rece ive i t rather than th e ir
v ic tim s," R. 165, because p roo f o f "a s p e c if ic act o r acts"
o f in ten tion a l d iscrim ination based upon the race o f an in d i
v idu a l v ictim in is o la t io n from the c a p ita l sentencing patterns
in w h ite -v ictim and b lack -v ic tim cases g en e ra lly is inconceiv -
ii a b le .
II « /
P e t it io n e r 's expert w itness Dr. W illiam J. Bowers t e s t i f i e d
in the D is t r ic t Court that ra c e -o f-v ic t im s t a t is t ic s fo r
Georgia and Texas— both in the F ifth C irc u it — are
s im ila r to those fo r F lo r id a . T. 153.
I
I
d iscrim inatory p rac tices in the ap p lica tion o f f a c ia l ly c o lo r -
47 /b lin d s ta tu te s .— • The la t t e r was what p e t it io n e r asserted
here; h is a sse rtion s cannot f a i r l y be characterized as " [m ]ere
conclusory a l le g a t io n s ,” 578 F.2d at 614 n .40; p. 33a n.40 in
f r a , in view o f the stip u la ted fa c t that 104 out o f 113 persons on
F lo r id a 's Death Row were put there fo r k i l l in g white people;
and the holdings below that he was not e n t it le d to proceed
fu rth e r w ith p roo f along these lin e s su re ly ought to be reviewed
by th is Court be fore h is execution is ca rried out.
a ffe c ted by r a c ia l ly d iscrim inatory statu tes or by r a c ia l ly
I I I .
THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHETHER THE COURTS
BELOW ERRED IN REJECTING WITHOUT
A HEARING THE SELFSAME CLAIM ON
WHICH WITHERSPOON v. ILLINOIS
SAID THAT A CAPITALLY CONVICTED
DEFENDANT IS ENTITLED TO A
HEARING
In Witherspoon v. I l l i n o i s , 391 U.S. 510 (1968),
th is Court re fused to ru le w ithout an adequate ev iden tiary
record that a "d e a th -q u a lif ie d " ju ry was "n ece ssa rily . . .
biased in favo r o f conviction" or would "too re a d ily ignore
the presumption o f the defendant's innocence, accept the
prosecu tion 's version o f the fa c ts , and return a ve rd ic t o f
g u i l t , " at 516-517. The Court found e x p l ic i t ly that:
" . . . [ t ]h e data adduced-by . . . [W i
therspoon ] are too t e n ta t iv e and fragm entary
to e s t a b l i s h that ju ro r s not opposed to the
death p ena lty tend to fa v o r the p rosecu tion
in the determ ination o f g u i l t . We simply
cannot conclude, e i t h e r on the b a s is o f the
record now be fo re us o r as a matter o f j u d i c i a l
n o t ic e , th a t the exc lu s ion o f ju ro r s opposed to
— Documentation o f these points would extend th is a lready
n ecessa rily lengthy c e r t io r a r i p e t it io n unduly. We
there fore provide a summary o f the re levan t h is t o r ic a l
m ateria ls in Appendix G, pp . ig - 7 g in fra .
-4 5 -
c a p ita l punishment re su lts in an unrepre
sentative ju ry on the issue o f g u i l t or sub
s t a n t ia l ly increases the r isk o f con v ic tion ."
I d . at 517-518 (footnote om itted ).
This fin d in g was requ ired " [ i ]n l ig h t o f the pre
sen tly a v a ila b le in form ation ," id . at 518, because counsel fo r
Witherspoon had not "sought an 'opportun ity to submit evidence'
in the t r i a l court, icL at 517 n . l l ; and h is re lian ce so le ly
on two unpublished manuscripts l e f t the Court- to "specu late
. . . as to the p rec ise meaning o f the terms used in those
stud ies , the accuracy o f the techniques employed, and the
v a lid it y o f the gen era liza tion s made," i b i d . The Court
in d ica ted , however, th a t :
" . . . a defendant convicted by such a
ju ry [ i . e . , one se lected according to the
standards announced in W itherspoon] in some
future case might- s t i l l attempt to e s ta b lish
that the ju ry was le ss than neutra l with
respect to g u i l t . I f he were to succeed in
that e f fo r t , the question would then a r is e
whether the S ta te 's in te re s t in subm itting
the penalty issue to a ju ry capable o f
imposing c a p ita l punishment may be v ind icated
at the expense o f the defendant's in te re s t
in a completely f a i r determ ination o f g u i lt
or innocence— given the p o s s ib i l i t y o f
accommodating both in te re sts by means o f
a b ifu rca ted t r i a l , using one ju ry to decide
g u i lt and another to f i x punishment. That
problem is not presented h e re , . . . and we
intim ate no view as to i t s proper re so lu t io n ."
48/Id . at 520 n.18 (emphasis in o r ig in a l) .
48/— And see i d . at 541 n . l (d issen tin g opinion o f Mr.
Justice W h ite ):
" I would not wholly fo rec lo se the
p o s s ib i l i t y o f a showing that ce rta in re
s t r ic t io n s on ju ry membership imposed because
o f ju ry p a rt ic ip a t io n in penalty determ ination
produce a ju ry which is not co n st itu t io n a lly
constitu ted fo r the purpose o f determining
g u i l t . "
-46 -
In the decade since W itherspoon, considerab le good
em pirica l research has been published in th is a rea , and has
con sisten tly found that d e a th -q u a lif ie d ju r ie s are both
conviction -prone and unrepresentative o f the community in
the same dimensions as (a lb e it in g rea te r measure than) the
fiv e -p e rson ju r ie s which th is Court subsequently condemned
in Ballew v. G eo rg ia , 435 U .S. 223 (1978). 42/ P e t it io n e r
accordingly a lle g ed below that the exclusion o f two prospective
ju ro rs fo r cause so le ly on account o f th e ir conscientious
scrup les aga in st c a p ita l punishment — and although these
prospective ju ro rs "made i t unmistakably c le a r that th e ir
a ttitu des toward the death penalty would not prevent them
from making an im partia l dec is ion as to p e t it io n e r 's g u i l t " — /
— "subjected p e t it io n e r to t r i a l by a ju ry which was not
im partia l in fa c t but was b iased in favor o f [the ] prosecution
on the issues o f P e t it io n e r 's g u i l t and o f the degree o f the
49 /— H. ZEISEL, SOME DATA ON JUROR ATTITUDES TOWARD CAPITAL
PUNISHMENT (Center fo r Studies in Crim inal Ju stice ,
U n iversity o f Chicago Law School, 1968) [a truncated
summary o f th is study was presented to the Court in
Witherspoon, see i d . at 25 ]; Boehm, Mr. P re ju d ice , Miss
Sympathy, and the A uthoritarian P e rson a lity : An A pp lication
of Psychological Measuring Techniques to the Problem or
Jury B ia s , 1968 WISC. L. REV. 7 34;" Bronson, On the Con-
viction -Proneness and Representativeness o f the Death-
Q u a lified Jury: An Em pirical Study o f Colorado Veniremen,
42 U. COLO. Li REV. 1* (1970); G o ldberg , Toward Expansion
o f Witherspoon: C ap ita l Scrup les, Jury B ias , and Use o f
Psychological Data to Raise Presumptions in the Law,
5 HARV. CIVIL RIGHTS-CIVIL LIBERTIES L. REV. 53 (1970)
[aga in , the published version o f th is study r e f le c t s ad
d it io n a l m ateria l that was not in , and other changes from,
the unpublished version presented to the Court in
Witherspoon, see id . at 57 ]; Jurow, New Data on the E ffe c t
o f a "Death Q u a lified Jury" on the G u ilt De-cermination
Process, 84 HARV. L. REV. 567 (1971). The c ited pub-
l ic a t io n s are not exhaustive o f the l i t e r a tu r e in the f i e ld ,
and there is a lso consisten t data a v a ila b le from unpublished
stud ies . We do not, o f course, advance these c ita t io n s fo r
ju d ic ia l notice , but simply to ind icate some o f the so rts o f
research upon which expert w itnesses fo r p e t it io n e r might
have drawn a t a proper ev iden tia ry hearing.
— ^P etit ion , «,[ 12(A) , as amended, R. 142 .
-4 7 -
II
crime with which he was ch arged ,"— ^ and a lso v io la te d
p e t it io n e r 's r ig h t to " t r i a l by a ju ry se lected from a
52/represen tative c ro ss -sec tion o f the community. . . —
P e tit io n e r requested an ev iden tia ry hearing on these
a l le g a t io n s ,^ / but the D is t r ic t Court re fused i t by
lim itin g i t s September 21, 1977 hearing to two other is su e s ,
see pp. 15-18 supra. Thus, although P ro fesso r Hans Z e is e l,
one o f the country 's foremost au th o rit ie s on d ea th -q u a lif ie d
jury research , t e s t i f ie d fo r p e t it io n e r on those other issu es ,
his testimony upon the issue reserved by Witherspoon could not
be presented.
The Court o f Appeals a ffirm ed the D is t r ic t C ourt 's
decision o f th is issue adverse ly to p e t it io n e r without a
hearing, despite i t s acknowledgment o f p e t it io n e r 's submission
that a t "an ad d it ion a l ev iden tia ry hearing, he w i l l develop a
more complete record than the one be fo re the Supreme Court
in Witherspoon and prove the contention" which Witherspoon
reserved fo r decision upon such a record. 578 F.2d a t 59 3 ;
p. 12a in f r a . P e t it io n e r 's contention was held to be "w ithout
m erit" as a mat-car o f law, 578 F.2d at 596 ; p. 15a in f r a ,
p rim arily in re lian ce upon seve ra l p re -Witherspoon decisions
by fed e ra l courts o f appeals, 578 F.2d a t 594-595; pp. 13a -
14a in f r a . For purposes o f i t s dec is ion , the Court o f Appeals
assumed the fa c tu a l v a lid ity o f the p roposition "th at a
51 /—- P e t it io n , 1[ 12(A) (v) , as amended, R. 145 .
5° /— P e t it io n , <|12(A )(ii) and ( i i i ) , as amended, R. 144.
— / p etit io n , Prayer (3) , R. 35.
-43 -
*
d e a th -q u a lif ie d ju ry is more l ik e ly to convict than a non
d e a th -q u a lif ie d ju ry ," 578 F.2d a t 593-594; pp. 12a - 13a
in f r a ; i t assumed that death -scrup led ju ro rs "con stitu te a
'd is t in c t iv e c l a s s , ' " 578 F.2d a t 597; p. 16a in f r a ; -and i t
conceded that the two veniremen excluded fo r scrup les at
p e t it io n e r 's t r i a l "s ta ted unambiguously that they could
f a i r ly judge Spenkelink 's g u i l t o r innocence," 578 F.2d at
592; .p. 11a in f r a .
The question could not be more b a ld ly presented whether
a man may properly be executed with a s ig n if ic a n t con stitu
t io n a l issue inadequately reso lved in h is case. This Court
in Witherspoon reserved decision o f that issue and sa id that
someone in p e t it io n e r 's position was e n t it le d to an ev iden tia ry
hearing to prove the fac ts on which i t re s ts . P e t it io n e r was
refused such a hearing, and the issu e was decided aga in st him
cn the bas is o f p re -Witherspoon case law and reasoning which,
5 4/whatever i t s q u a l i t y ,— has never been endorsed or even
The Court o f Appeals misunderstood p e t it io n e r to contend that
he was e n t it le d to "a defendant-prone ju ry ," 578 F.2a at
596; p. 15a in f r a :
" . . . That a d e a th -q u a lif ie d ju ry is
more l ik e ly to convict than a nondeath-
q u a li f ie d ju ry does not demonstrate which-
ju ry is im p art ia l. I t ind icates only that,
a d e a th -q u a lif ie d ju ry might favor the
prosecution and that a n ondeath -qua lified
ju ry might favor the defendant."
578 F.2d a t 594; p. 13a in f r a .
With a l l respect, th is supposed ep istem ologica l
problem is a fa ls e one. The question "which ju ry is
im partia l" is not to be determined by reference to some ab
s tra c t and unknowable standard, but by the standard c f
the ordinary ju r ie s that decide ord inary crim inal cases.
[Footnote 54/ continues on next page .]
-49 -
%
considered, by th is Court. 3y the time another c a p ita lly
convicted person in another C ircu it is given the kind o f
Footnote 54/ continued
These ju r ie s are se lec ted to s i t in n on -cap ita l t r i a ls
(b e tte r than 99% o f crim inal t r i a l s ) ; they are repre
sen tative o f a c ro ss -sec tion o f the community; they
are not d e a th -q u a lif ie d ; and the suggestion that they
are there fore "defendant-prone" is in con ce ivab le .
P e t it io n e r 's contention is that, by comparison with
th is so rt o f ju ry , a d e a th -q u a lif ie d ju ry is unduly
li 'h e ly to convict — whether the charge is c a p ita l
or n on -cap ita l, and not because o f some nondeath-
q u a li f ie d ju ro rs ' a tt itu d es toward the death penalty
(which the excluded veniremen in p e t it io n e r 's case
swore would not a f fe c t th e ir g u i l t d e lib e ra t io n s ), but
because o f other s ig n if ic a n t a t t itu d in a l d iffe ren ces
between d e a th -q u a lifie d and non death -qua lified ju r ie s ,
re su lt in g (as th is Court properly understood the
argument in W itherspoon) in d i f fe r e n t thresholds o f
reasonable doubt, see 391 U.S. at 516-517.
Having m is id en tified the is su e , the Court of
Appeals next proceeded to decide "which ju ry is im partia l
by the fo llow in g reasoning: On the one hand,
" . . . a reading o f the tran sc rip t o f
the v o ir d ire examination [in p e t it io n e r 's
case] demonstrates that those veniremen who
were chosen to be ju ro rs in no way ind icated
that they were b iased fo r the prosecution or
again st the defendant. None o f the veniremen
ind icated , fo r example, that he had a pre
conceived opinion as to the p e t it io n e r 's
g u i l t or innocence . . . . [T ]he veniremen
ind icated only that they would be w i l l in g to
perform th e ir c iv ic o b lig a t io n as ju ro rs and
obey the law . Such persons cannot accurate ly
be branded prosecution -prone. .. . .
The two excluded veniremen, on the other
hand, stated that they would autom atically vote
against im position o f the death penalty regard
le ss o f any evidence that might be developed at
t r i a l . They a lso represented that they would
f a i r ly judge the p e t it io n e r 's g u i l t or innocence
[desp ite t h e i r ’ a ttitudes toward the death pen
a lty ] . The sta te t r i a l court, nonetheless,
struck them fo r causa, thus excluding them
completely from the t r i a l . We fin d nothing
co n stitu tio n a lly im perm issible by a state
fo llow in g such a procedure. F lo r id a apparently
has concluded than, i f fo r whatever noble reason
. . . a venireman c lin gs so s te a d fa s t ly to
[Fcocn'oue 5 4/ continues on n
hearing which Witherspoon envisaged, p e t it io n e r w i l l be dead.
So w i l l others in the F ifth C irc u it , unless the Court grants
review o f th e ir cases, which cannot present the issue any
d if fe r e n t ly . C e r t io ra r i should be granted here.
Footnote 54/ continued
the b e l i e f that c a p ita l punishment is wrong that
he would never under any circumstances agree to
recommend the sentence o f death, i t is e n t ire ly
p o ss ib le — perhaps even probab le — that such
a venireman could not f a i r l y judge a defendant's
g u i l t o r innocence when a c a p ita l fe lon y is
charged."
57S F.2d at 594-595; pp. 13a - 14a in fra (emphasis in o r i g in a l ) .
In the f i r s t p lace , there is no reason to b e lie v e that
F lo r id a has ever made the judgment a ttr ibu ted to i t in th is
passage. P e t it io n e r 's t r i a l judge c e r ta in ly d id not. Rather,
the F lo r id a procedure o f excluding at the g u i l t phase o f a
c a p ita l t r i a l a l l p rospective ju ro rs who could not recommend
a death sentence at the penalty phase is e x p lic ab le wholly in
terms o f the S ta te 's unw illingness to pay the cost o f empanel
ing separate ju r ie s fo r the two phases (the procedure suggested
in Witherspoon v . I l l i n o i s , supra , 391 TJ.S. at 520 n .1 3 ), or
even to endure the le s s e r inconvenience o f a llow in g death -
scrupled ju ro rs to remain fo r the penalty phase and p a rt ic ip a te
in an adv isory v e rd ic t which under F lo r id a law a t r i a l judge
might s t i l l o ve rrid e , e sp e c ia lly i f p o ll in g revea ls that th e ir
votes re su lted in a m ajority fo r l i f e imprisonment. In the second j
p lace , i f F lo r id a had made such a judgment, we do not see how
i t — or the Court o f Appeals — could ju s t i f y that judgment by
the use o f an unexplained double standard which c red its the
v o ir d ire statements o f d e a th -q u a lif ie d ju ro rs that they can
t ry issues o f g u i l t o r innocence f a i r l y but d is c re d its the
equ a lly solemn and sworn, id e n t ic a l statements o f death -scrup led
ju ro r s . In the th ird p lace , not on ly the la t t e r judgment but
the bu lk o f the Court o f Appeals ' reasoning upon th is issue re s ts
upon assertion s or assumptions o f fa c t which (1) have no b a s is
in the record, and (2) are in con sisten t with the fa c ts developed
by em pirica l research , which p e t it io n e r sought and was denied an
ev iden tiary hearing to prove, and (3) are made in an opinion
which purports to r e je c t p e t it io n e r 's d e a th -q u a lif ie d ju ry con
tentions as a matter o f law, hold ing that he was p roperly denied
a hearing on these very issues o f fa c t . We would th ere fo re not
expect the reasoning o f the Court o f Appeals to commend i t s e l f
to th is Court upon p lenary con sideration .
_ = i _
I
THE COURT SHOULD GRANT CERTIORARI
TO DETERMINE WHETHER THE EXECUTIVE
CLEMENCY PROCEDURES EMPLOYED IN
PETITIONER'S CASE DEPRIVED HIM OF
DUE PROCESS OF LAW
The issue here is framed by F lo r id a 's p a r t ic u la r
form o f executive clemency procedure fo r death cases. That
is not an. ad hoc, personal in ve st ig a t io n and review o f
in d iv id u a l records by the Governor, but a form alized
adm in istrative process, regu lated by w ritten ru le s , which
culminates in an adversary hearing before the Cabinet and
must be conducted in every case as the b a s is fo r e ith e r
commutation o f the death sentence o r , conversely , sign ing
o f a death warrant.
P e t it io n e r 's contention that he is e n t it le d to due
process o f law in such a proceeding was re jec ted by the
F lo rid a Supreme Court on the ground that clemency is an
act o f grace , Su llivan v. Askew, 348 S o .2d 312, 314 (F la .
1977), and by the Court o f Appeals below on authority o f
Schick v. Reed, 419 U.S. 256 (1974), and Meachum v. Fano,
427 U.S. 215 (1976). However, p e t it io n e r 's claim is fo r
procedural due process, not fo r substantive ju d ic ia l review
as in Schick; and h is complaint is about the dec ision to
dispatch him to another w orld , not to ' " a prison the con
d ition s o f which are su b s ta n t ia lly le s s fa v o r a b le , '" as in Meachum,
quoted below in 57S F .2a at 618; p . 37a in f r a .
IV.
I
The Court has p rev iou s ly denied c e r t io r a r i on th is
is su e . S u lliv an v . Askew. 434 tJ.S. 378 (1977). I f that d en ia l
was bottomed on the conclusion that the issue is inheren tly
unworthy o f p lenary review , then review o f i t should a lso
be denied now. But because i t may a lt e rn a t iv e ly be that the
e a r l i e r d en ia l rested in p a rt upon the C ourt' s understanding
that the Due Process claim was s t i l l open and might be
v ind icated a f t e r an ev id en tia ry hearing in fe d e ra l habeas
corpus, we cannot assume r e s p o n s ib i l it y fo r f a i l i n g to
present i t to the Court one f in a l time, now that p e t it io n e r
has d e f in it e ly been s la ted to d ie upon the premise that he
has no c o n s t itu t io n a lly cogn izable in te re s t in the nature o f
the adm in istrative procedures which resu lted in a dec is ion
to k i l l instead o f spare him. The issue is d e ta ile d in the
S u lliv an c e r t io r a r i p e t it io n attached as Appendix H, pp. lh -
6 8h> in f r a , fo r the C ou rt 's convenience. V.
V.
THE COURT SHOULD GRANT CERTIORARI TO
CONSIDER WHETHER PETITIONER WAS DE
PRIVED OF AN ADEQUATE HEARING ON HIS
CLAIM THAT ELECTROCUTION IS AN UN
NECESSARILY TORTUROUS AND WANTONLY
CRUEL MEANS OF EXECUTION, AND
THEREFORE VIOLATES THE EIGHTH AND
FOURTEENTH AMENDMENTS
The Court below held that In re Kemmlar, 136 U .S .
436 (1890), ju s t i f i e d the D is t r ic t Court in denying p e t it io n e r
an ev iden tia ry hearing on h is contention that "e lec tro cu tion .
is unnecessarily torturous and wantonly crue l and there
fore constitu tes c rue l and unusual punishment," 578 F.2d at
616; p. 35a in f r a . We obviously b e lie v e and fe rv en tly hope
that the issue need not be reached in th is case. But, i f
the execution o f p e t it io n e r 's death sentence is not i t s e l f
forbidden by the C onstitu tion , then we re sp e c t fu lly submit
that a t the le a s t he should be given an opportunity to show
that the means by which F lo r id a proposes to put him to
death are indecent and an a ffro n t to human d ign ity— ^ in
th is th ird quarter o f the Twentieth Century.
The ghastly r e a l i t y o f e lec trocu tion is described
in accounts that have been co lle c ted elsewhere
56/
As a
le g is la t iv e sponsor o f Texas' le th a l- in je c t io n statu te
put i t , "there has ju s t got to be a b e tte r way":
" I t ' s a very scary thing to see. Blood
squ irts out o f the nose. The eyeba lls
pop out. The body almost v i r t u a l ly
catches f i r e . I voted fo r a more humane
treatment because death is p re tty f in a l .
That's enough o f a p en a lty . "5JZ/
55/— • See Gregg v. G eorg ia , supra, 428 U.S. at 182 (opinion or
Mr. Justice Stewart, Mr. Justice Powell and Mr. Justice
Stevens), c it in g Trop v. D u lle s , 356 U.S. 86, 100 (1953)
(p lu ra lit y o p in io n ), fo r the p roposition that "the basic
concept o f human d ign ity [ l i e s ] a r the core o f the [Eighch]
Amendment."
56 /— ' 3 r ie f fo r P e t it io n e r in Aikens v. C a l i fo r n ia , 406 U.S. 813
(1972) [O.T. 1971, No. 63-5027], Appendix I , pp. 5 i -9 i .
57/
— • We quote th is kind o f a descrip tion with much
reluctance. Obviously, the problem o f how we should
appropriate ly focus the present issue fo r the C ou rt 's
consideration is a trou b lin g one. No ev iden tiary record
was made below: chat is p re c ise ly our complaint. To
ta lk about "e lsctrocuu ion " in the ab strac t , as though the
word captured the r e a l i t y o f the su b jec t, is to conceal
the very point that makes an ev id en tia ry hearing
necessary: namely, chat the word is a very fa r cry from
(Footnote 57/ continues on next pace.
Houston Chron icle, May 5, 1977. Another le g is la t iv e sponsor
stated that e lectrocu tion "takes away from the d ign ity o f the
s ta te ." I b id . And the D irecto r o f the Texas Department o f
Corrections supported the b i l l as "a more c iv i l i z e d way o f
carry ing out our r e s p o n s ib i l i t ie s . " I b id .
For a number o f reasons, Kemmler should not bar the
hearing which p e t it io n e r sought below in order to show that
e lectrocu tion is no longer a c iv i l i z e d way "to extingu ish
l i f e humanely," Louisiana ex r e l . Francis v. Resweber, 329 U.S.
459, 464 (1947 )(p lu ra lit y op in ion ). The Kemmler case was
decided almost n inety years ago. The le g a l issue presented
then was whether e lectrocu tion deprived Kemmler o f due
process o f law o r o f the p r iv i le g e s and immunities o f fed e ra l
Footnote 57/ continued
conveying the r e a l i t y . Some ten years ago, in the B r ie f
fo r the N .A .A .C .P . Legal Defense and Educational Fund,
In c ., e t c . , as Amici Curiae in Boykin v. Alabama, 395 U.S.
238 (1969) [O.T. 1968, No. 642], pp. 29-30, we explained
our equa lly uncomfortable dec ision not to set fo rth eye
witness accounts o f execu tion s:
" . . . ' [A ]s we prepared the m ateria ls fo r
the appendix, we re a liz e d that th e ir inc lusion
here would c e rta in ly cause us to be charged
with sensationalism and an' appeal to passion
and repu ls ion . Such is the character o f th is
in s t itu t io n o f k i l l in g men that i t fo rces one
who attacks i t le g a l ly e ith e r to describe with
p a r t ic u la r it y what he is attack ing, and be
b it t e r ly resented , or to keep s i le n t about i t ,
and r isk being misunderstood. F in a lly , we
have decided to jo in in the genera l 'decent
r e t ic e n c e ,1 and to do no more than provide
the Court with c ita t io n s to d escrip tion s o f
the methods o f e x ecu tio n s ."
Here, because o f our r e s p o n s ib i l it ie s as counsel fo r
p e t it io n e r , we have f e l t i t necessary to provide a t
le a s t one b r ie f d escrip tion o f the method o f execution
which he urges is u n con stitu tion a lly barbarous.
-5 5 -
c it iz en sh ip . Not u n t i l 1962 was the Eighth Amendment
d e f in it iv e ly incorporated into the Fourteenth Amendment.
Robinson v. C a l i fo rn ia , 370 U.S. 660 (1962). The same
opinion recognized that the incorporated Cruel and Unusual
Punishments Clause must be app lied "in l ig h t o f contemporary
human knowledge," id . a t 666; and the Court has since r e a f
firm ed that "the Eighth Amendment . . . [ i s ] not . . . a
s t a t ic concept,? and that i t fo rb id s "the unnecessary and
wanton in f l ic t io n o f p a in ," Gregg v. G eorg ia , supra , 428 U.S.
at 172-173 (opinion o f Mr. Justice Stewart, Mr. Justice
Pow ell, and Mr. Justice S tevens). In Kemmler's time (and
indeed in h is own c a s e ) , e lec trocu tion was an untried
experiment: no one yet knew how i t would work out on
human beings in p rac tic e , but the expectation was that i t
C, Q /
would prove to be a humanitarian advance over hanging.
Today, the experience to assess that experiment e x is t s ; the
5 Q /
expectation has turned out to be wrong;—*■ and, equa lly
important, science has progressed s u f f ic ie n t ly to make new
a lte rn a t iv e s fe a s ib le , such as the intravenous in je c t io n
method now prescribed in Idaho, Oklahoma and Texas.&Q-/ Under
these circumstances, Kemmler obviously cannot fo rec lo se the
— 'S ee Bernstein , "A Grand Success," 10 INST. ELECTRICAL St
ELECTRONICS ENG. SPECTRUM 54 (February, 1973).
59/
— • See, e . q . , ROYAL COMMISSION ON CAPITAL PUNISHMENT
1949-1953, REPORT (H.M.S.O. 1953 )[Cmd. 8932] 246-261.
— ^Idaho Code §19-2716 (Supp. 1978); Okla. S tat. Ann., t i t .
22, § 1014 (Supp. 1978-1979); Vernon 's Tex. Code Crim.
Pro. Ann., a r t . 43.14 (Cum. Supp. 1966-1977).
—oo'
fa c tu a l question whether e lec trocu tion involves "the
in f l ic t io n o f unnecessary pain in the execution o f the
death sentence," Louisiana ex r e l . Francis v . Resweber,
supra , 329 U .S . at 463 (p lu r a l i t y opinion ) .6-^/
CONCLUSION
The w r it o f c e r t io r a r i should be granted.
R espectfu lly submitted,
JACK GREENBERG
JAMES M. NABRIT, I I I
JOEL BERGER
JOHN CHARLES BOGER
DEBORAH FINS
Su ite 2030
10 Columbus C irc le
New York, New York 10019
ANDREW A. GRAHAM
Suite E
1970 Michigan Avenue
Cocoa, F lo r id a 32992
DAVID E. KENDALL
1000 H i l l B u ild ing
Washington, D.C. 20006
ANTHONY G. AMSTERDAM
Stan fo rd U n iv e r s i t y Law School
Stan fo rd , C a l i f o r n i a 94305
ATTORNEYS FOR PETITIONER
‘ " . . . [N ]o court would approve any method o f
implementation o f the death sentence found to
invo lve unnecessary c ru e lty in l ig h t o f p re s
en tly a v a ila b le a lt e rn a t iv e s ."
Furman v . G eo rc ia , suora , 403 U .S . at 430 (d issen tin g opinion
o f Mr. Justice P o w e ll ) .