Booth v. Maryland Brief of Amicus Curiae NAACP Legal Defense and Educational Fund in Support of Petitioner
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December 3, 1986

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Brief Collection, LDF Court Filings. Booth v. Maryland Brief of Amicus Curiae NAACP Legal Defense and Educational Fund in Support of Petitioner, 1986. 3e02b71c-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cf4648bb-e3b2-4e8f-b176-762eff3c1eb5/booth-v-maryland-brief-of-amicus-curiae-naacp-legal-defense-and-educational-fund-in-support-of-petitioner. Accessed June 13, 2025.
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No. 86-5020 I n the iwprpmp Qkutrt nt % Itutpib States October Term, 1986 J ohn B ooth, v. State op Maryland, Petitioner, Respondent. O N W R IT OP CERTIO RA RI TO T H E COU RT OP A PPEA L S OP M A RYLAND BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. IN SUPPORT OF PETITIONER J ulius L. Chambers J ames M. Nabrit, III J ohn Charles Boger V ivian Berger* 99 Hudson Street New York, New York 10013 (212) 219-1900 A nthony 0 . Amsterdam New York University School of Law 40 Washington Square South New York, New York 10012 (212) 598-2638 Attorneys for the NAACP Legal Defense and Educational Fund, Inc. ^Counsel of Record QUESTIONS PRESENTED 1. Does the admission at a penalty trial of so-called victim impact evidence — which is by nature inflammatory, irrelevant to any legitimate capital sentencing purpose, and conducive to death sentences imposed on the basis of race, social class, and other impermissible factors — violate the Eighth and Fourteenth Amendments? 2. Did the introduction at petitioner's sentencing of a "Victim Impact Statement," as mandated under Maryland law, violate this petitioner's rights under the Eighth and Fourteenth Amendments? i TABLE OF CONTENTS Page Questions Presented .............. i Table of Authorities ............. iv Statement of Interest of Amicus Curiae ................. 1 Summary of Argument .............. 3 Argument ......................... 4 The Use of "Victim Impact" Evidence at the Penalty Phase of a Capital Trial, As Man dated Under Maryland Law, Injects Irrational, Arbitrary and Imper missible Considerations into the Life-or-Death Decision, and Is Unconstitutional ....... 4 1. Much of the Matter Required by Maryland Law to Be Included in Victim Impact Statements Bears No Conceivable Rela tionship to the Legitimate Ends of Capital Sentencing .. 7 2. By Deflecting the Jury From Its Proper Task of Objectively Considering the Par ticularized Circum stances of the Individual Offender ii and Crime, Introduc tion of Victim Impact Statements at the Penalty Phase En courages Arbitrary Sentences of Death .. 22 3. Admission of Victim Impact Evidence Would Necessitate Admission of Expansive Proof of a Similar Type, Offered On Behalf of Defendants .... . 31 4. Victim Impact State ments Invite the Jury to Impose Sentences of Death for Consti tutionally Impermis sible Reasons ....... 36 II. The Admission at Peti tioner's Penalty Trial of a Long, Irrelevant, Inflammatory Victim Impact Statement Vio lated Petitioner's Rights Under the Eighth and Fourteenth Amendments 40 Conclusion ....................... 46 iii TABLE OF AUTHORITIES Cases Page Adams v. Texas, 448 U.S. 38 (1980) ......................... 2 Barefoot v. Estelle, 463 U.S. 880 (1983) ......................... 2 Booth v. State, 306 Md. 172, 507 A.2d 1098 (1986) .... 13 n.7,34,37,38 n.18,41 n.20,45 Brooks v. Kemp, 762 F .2d 1383 (11th Cir. 1985) (en banc), vacated, ___ U . S . ___, 92 L.Ed. 2d 732 (1986) ......... 38,39 Caldwell v. Mississippi, ___ U.S. ___, 86 L.Ed. 2d 231 (1985) .... 5 California v. Ramos, 463 U.S. 992 ( 1983) ................. 6 r.. 2,15, 16,17,23 Chambers v. Mississippi, 410 U.S. 284 (1973) ............ 32 Coker v. Georgia, 433 U.S. 584 (1977) ......................... 22 Coppola v. Commonwealth, 220 Va. 243, 257 S.E. 2d 797 (1979), cert, denied, 444 U.S. 1103 ( 1980) .................... 35 n. 17 Eddings v. Oklahoma, 455 U.S. 104 (1982) ............ 21 Enmund v. Florida, 458 U.S. 782 (1982) ....... 2,15,16,21,22 Estelle v. Smith, 451 U.S. 454 (1981) ............ 2 IV 20 Evans v. State, 422 So. 2d 737 (Miss. 1982), cert, denied, 461 U.S. 939 (1983) ............... Fisher v. State, 482 So. 2d 203 (Miss. 1985} .................. . Furman v. Georgia, 408 U.S. 238 ( 1972) ...................... 2,4,2 Fuselier v. State, 468 So. 2d 45 (Miss. 1985) .................... Gardner v. Florida, 430 U.S. 349 (1977) ....22 n.12,23 Godfrey v. Georgia, 446 U.S. 420 (1980) ............ Grant v. State, 703 P .2d 943 (Okla. Crim. App. 1985) ....... Green v. Georgia, 442 U.S. 95 (1979) ................. ........ Gregg v. Georgia, 428 U.S. 153 (1976) ..2,4,15,17.n . Henderson v. State, 234 Ga. 827, 218 S.E. 2d 612 (1975) ........ Ice v. Commonwealth, 667 S.W. 2d 671 (Ky.), cert, denied, 469 U.S. 861 (1984) ............ Lockett v. Ohio, 438 U.S. 586 (1978) .... 16,27-28 Lodowski v. State, 302 Md. 691, 490 A.2d 1228 (1985), vacated, ___ U.S. ___, 89 L .Ed.2d 711 (1986) ..... 5 n.1,9&.n.4,13-14.& 19,24,25 29 1,24,36 26 n.13 ,27,30, 33 n.16 22,23 29,30 32 8,23,24 28,29 26 n.14,30 n.7,18, ,42 n .21 v Moore v. Zant, 722 F .2d 640 (11th Cir. 1983), reh'g en banc granted, 738 F .2d 1126 (11th Cir. 1984) .11,14,19&.n .9,20& n.10, 35 n.17,36,38 n.19,39 Muckle v. State, 233 Ga. 337, 211 S .E .2d 361 (1974) --- 11 n. 5 People v. Bartall, 98 111. 2d 294, 456 N.E. 2d 59 (1983) ......... 29 People v. Brown, 40 Cal. 3d 512, 709 P. 2d 440, 220 Cal. Rptr. 637 (1985), cert, granted, ___ U.S. , 90 L.Ed. 2d 717 (1986T~T...................... . n.14 People v. Easley, 34 Cal. 3d 858, 671 P .2d 813, 196 Cal. Rptr. 309 (1983) ......................... 27 n -14 People v. Free, 94 111. 2d 378, 447 N.E.2d 218, cert, denied, 464 U.S. 865 (1983) .11 n.5,18,25-26 n.13 People v. Holman, 103 111.2d 133, 469 N.W.2d 119 (1984), cert. denied, 469 U.S. 1220 (1985) .18,19,26,39 People v. Lanphear, 36 Cal.3d 163, 680 P .2d 1081, 203 Cal. Rptr. 122 (1984) ..................... 27 n -14 People v. Levitt, 156 Cal. App. 3d 500, 203 Cal. Rptr. 276 (1984) ...11 n.5 ,1 7 ,1 8 ,20 n.10,28,30 n.15 People v. Love, 53 Cal.2d 843, 350 P .2d 705, 3 Cal.Rptr. 665 (I960) ................ .....21 n.11,23,24 People v. Ramirez, 98 111.2d 439, 457 N.E. 2d 31 (1983) ......... 25 n.13 vi Skipper v. South Carolina, _____ U.s. ... , 90 L.Ed. 2d 1 "( 1986) .......27 n . 14 , S2-33& n. 16,35 n.17 State v. Gaskins, 284 S.C. 105, 326 S.E. 2d 132 (1985) ........ 35 n. 17 State v. Reeves, 216 Neb. 206, 344 N.W. 2d 433 (1984) ......... 10 n.4 State v. Rushing, 464 So.2d 268 (La. 1985), cert, denied, U.S. ___, 90 L.Ed. 2d 703 (1986) ........................ . n.22 State v. Sprake, 637 S .W .2d 724 (Mo. Ct. App. 1982) ............ 29 State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984) ........ 9-10 & n.4 Tobler v. State, 688 P.2d 350 (Okla. Crim. App. 1984) 14,26 Turner v. Murray, ___ U.S. ___, 90 L.Ed. 2d 27 (1986) ..... 5,6.n .2,30,39 Vela v. Estelle, 708 F.2d. 954 (5th Cir. 1983), cert, denied, 464 U.S. 1053 (1984) 26,27 Welty v. State, 402 So.2d 1159, (Fla. 1981) 29 Wiley v. State, 484 So.2d 339 (Miss. 1986) 26 Witherspoon v. Illinois, 391 U.S. 510 (1968) 2 Woodson v. North Carolina, 428 U.S. 280 (1976) .......... 4,6 n.2,15 vii Zant v. Stephens, 462 U.S. 862 (1983) .................... 16,17,21,23,36 Statutes Fed. R. Crim. P. 32(c) .......... 6 n.2 Fed. R. Evid. 404(a) ............. 19 n.9 L.S.A. Code Crim Pro., art. 875 (A), (B) (Supp. 1986) . 9 n.4 Md. Code, art. 27, section 413(c) (iv)(Cum. Supp. 1984)........... 42& n.21 Md. Code, art. 41, section 124 (Cum. Supp. 1984) ..7-8& n.3, 9 n.4,10,11,18 Md. Rule 4-343 (d ) ................ 34 Neb. Rev. Stat. section 29-2261 ( 1985) 9 n.4 O.C.G.S. sections 17-10-1.1, 17-10-1.2 (Supp. 1986) 9 n.4 Okla. Stat. Ann. tit. 22, section 982 (1986) 9 n.4 Public Law No. 97-291, 96 Stat. 1248 (1982) 6 n.2 S.C. Code Ann. section 16~3~1550(A) ( 1985) 9 n.4 Other Authorities Henderson, The Wrongs of Victim's Rights, 37 Stan. L. Rev. 937 vi i i No. 86-5020 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1986 JOHN BOOTH, Petitioner, v . STATE OF MARYLAND, Respondent. ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. IN SUPPORT OF PETITIONER STATEMENT OF INTEREST OF AMICUS CURIAE The NAACP Legal Defense and Educational Fund, Inc., is a non-profit corporation established to assist black citizens in securing their constitutional rights. In 1967, it undertook to represent indigent death-sentenced prisoners for whom adequate representation could not otherwise be found. It has frequently represented such prisoners before this Court. E.g., Furman v. Georgia, 408 U.S. 238 (1972); Estelle v. Smith, 451 U.S. 454 (1981); Enmund v ■ Florida, 458 U.S. 782 (1982). The Fund has also appeared before this Court as amicus curiae in capital cases. E.g., Witherspoon v. Illinois, 391 U.S. 510 (1968); Gregg v. Georgia, 428 U.S. 153 (1976); Adams v. Texas, 448 U.S. 38 (1980); Barefoot v. Estelle, 463 U.S. 880 (1983). The Legal Defense Fund currently represents a substantial number of indigent condemned prisoners in states in the Fourth Circuit and elsewhere, whose cases are at various stages following affirmance of conviction and sentence by the state appellate courts. The Fund is also often called on, and tries to the extent of its capacities, to provide consultative assistance to attorneys representing other capital defendants across the nation. 2 The issues presented by this case are of utmost concern to death-sentenced prisoners throughout the country, including many represented by the Fund. Both petitioner and respondent have consented to the filing of this amicus curiae brief. SUMMARY OF ARGUMENT I. The admission of victim impact evidence at penalty trials violates the Eighth and Fourteenth Amendment rights of defendants on trial for their lives on a number of grounds. For one thing, its use advances no legitimate goal of capital sentencing. Further, because it is so inflammatory, it deflects the jurors from rational consideration of the life-or-death decision. Toleration of this evidence would, moreover, compel admission of wide- ranging proof of a similar nature offered by defendants, and thereby threaten the entire structure of death-sentencing 3 jurisprudence the Court has erected. Finally, victim impact evidence encourages jurors to base determinations of death on invidious, impermissible factors such as race and social class. II. in this case, the "Victim Impact Statement" admitted at the penalty trial was so inflammatory and irrelevant as clearly to violate petitioner's rights under the Eighth and Fourteenth Amendments. ARGUMENT I . THE USE OF "VICTIM IMPACT" EVIDENCE AT THE PENALTY PHASE OF A CAPITAL TRIAL, AS MANDATED UNDER MARYLAND LAW, INJECTS IRRATIONAL, ARBITRARY AND IMPERMISSIBLE CONSIDERATIONS INTO THE LIFE-OR-DEATH DECISION, AND IS UNCONSTITUTIONAL._____ Both in ushering out the old era of capital punishment, Furman v ..Georgia,, 40S U.S. 238 (1972), and in inaugurating the new, see, e.g., Gr egg_v^_G eonrgia, 428 U.S. 153 (1976); Woodson v . North Carolina, 428 U.S. 280 (1976), the Court announced a 4 strong commitment to eradicating arbitrary and invidious influences on death-penalty determinations. That commitment persists unabated. As recently as last Term's decision in Turner v. Murray, __ U.S.__, 90 L .Ed.2d 27 (1986), the Court reaffirmed its obligation to strike down death sentences imposed under circumstances that "'created an unacceptable risk'" of arbitrariness, caprice or mistake. Id. at 36, quoting Caldwell v. Mississippi, ___ U . S . ___, 86 L .Ed.2d 231, 248-49 (1985)(0'Connor, J., concurring in part and concurring in the judgment). So-called victim impact evidence, which in capital penalty proceedings mainly deals with effects of the crime on the victim's family1, offends this principle 1Lodowski v. State, 302 Md. 691, 760- 61, 490 A.2d 1228, 1263 (1985) (Cole, J., concurring), vacated on other grounds,__ U.S.__, 89 L.Ed. 2d 711 (1986). More detailed discussions of such evidence appear at pp. 40-45, infra. 5 for four interrelated reasons,2 First, such evidence intrudes into the penalty decision considerations that have no rational bearing on any legitimate aim of capital sentencing. Second, this proof is highly emotional and inflammatory, subverting the reasoned and objective inquiry which this Court has required to guide and regularize the choice between death and lesser punishments. Third, victim impact evidence cannot conceivably be received without opening the door to proof of a similar ^The Court need not now determine the appropriate role, if any, of the victim or the victim's family at various stages of ordinary trials. See generally Henderson, The Wrong’s of Victim's Rights, 37 Stan. ITTr evT~9 3 7 ( 1985); see , e . g ._j_ Pub. L. No. 97-291, 96 Stat. 1248 (1 9 8 2 )(amending Fed. R. Crim. P. 32(c)(2)). For, as the Court has often recognized; "' ••• [Tjhe qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.'" Turner, U.S. at 90 L.Ed.2d at 36, quoting California v. RamosL 463 U.S. 992, 998-99 (1983). See also Woodson v. North Carolina, 428 U.S. at 303-05 (opinion of Stewart, Powell and Stevens, JJ.). 6 nature in rebuttal or in mitigation, further upsetting the delicate balance that the Court has painstakingly achieved in this area. Fourth, the evidence invites the jury to impose death sentences on the basis of race, class and other clearly impermissible grounds. 1. Much of the Matter Required by Maryland Law to Be Included in Victim Impact Statements Bears No Conceivable Relationship to the Legitimate Ends of Capital Sentencing.__________________ ___ Article 41, section 124 of the Maryland Code, set out in pertinent part in the margin,3 provides for a Victim Impact 3Section 124(c)(3), (4) and (d) read as follows (emphasis added): (c ) ... (3) A victim impact statement shall: (i) Identify the victim of the offense; (ii) Itemize any economic loss suffered by the victim as a result of the offense; (iii) Identify any physical injury suffered by the victim as a result of the offense along 7 Statement ("VIS") to be encompassed in the presentence investigation. Originally enacted in 1982, the law did not apply at first to felonies that resulted in death. with its seriousness and permanence; (iv) Describe any change in the victim's personal welfare or familial relationships as a result of the offense; (v) Identify any request for psychological services initiated by the victim or the victim's family as a result of the offense; and (vi) Contain any other information related to the impact of the offense upon the victim or the victim’s family that the court requires. (4) If the victim is deceased, under a mental, physical, or legal disability, or otherwise unable to provide the information required under this section, the information__may be obtained from the_____personal representative, guardian, or_committee,__or__such family members as may be necessary. (d ) In any case in which the death penalty is__requested under Article 27, section 412, a presentence investigation, including a victim impact____ statement, shall____ be completed by the Division of Parole and Probation,__ and shall__be considered__by the court or .jury before whom the separate sentencing proceeding __is___conducted under Article 27, §413. 8 See Lodowski v. State, 302 Md. at 736-37 & n .4, 490 A.2d at 1251-52; id., 302 Md. at 760-63 & n .4, 490 A.2d at 1263-65 & n.4 (Cole, J., concurring) (discussing legislative history). The next year, the statute was amended, in haste and apparently without much thought, to require preparation and consideration by the sentencing body of a VIS in any case where the death penalty is requested (but not in other murder prosecutions). 4 4About 30 states have recently passed statutes authorizing victim input, in the form of statements or otherwise, in sentencing proceedings. Lodowski v. State, 302 Md. at 754-55 & n.3, ~490 A.2d at 1260 n.3 (Cole, J. concurring)(listing statutes). Most of these jurisdictions have also enacted capital punishment provisions. A number of states with both victim impact and death-penalty legislation expressly exclude capital sentencing from the ambit of the former statutes. See, e .q ,, L.S.A. Code Crim. Pro., art. 875(A),(B)(1984)(La.); O.C.G.S. sections 17-10-1.1, 17-10-1.2 (Supp. 1986)(Ga.); Okla. Stat. Ann. tit. 22, section 982(1986); S.C. Code Ann. section 16-3- 1550(A) (1985); but see Md. Code, art. 41, section 124 (Cum Supp. 1984); Neb. Rev. Stat. section 29-2261 (1985); State__v^ Williams, 217 Neb. 539, 541-42, 352 N.W.2d 9 Section 124 now calls for a VIS describing specific harms to the victim: economic, physical and emotional. The statute also expressly mandates inclusion in the statement of certain information regarding the family. For instance, the VIS must "[djescribe any change in the victim's personal welfare or__L^ i lial relationships" and "[identify any request for psychological services initiated by the victim or the victim's family that the court requires." Md. Code, art. 41, section 124(c)(3)(iv), (v), (vi)(emphasis added). Where the victim is deceased, a separate subheading explicitly provides for the needed data to be gotten "from the personal representative, guardian, or committee, or such family members as may be 538, 540-41 (1984) (presentence report admissible at penalty trial) ; State— ,v_i. Reeves, 216 Neb. 206, 221, 344 N.W.2d 433, 444 (1984)(per curiam)(same). See generally Henderson, supra note 2, at 986- 87 . 10 necessary. Id. (c )(4){emphasis added). See generally supra note 3. If one considers how, practically speaking, such a statute applies in a capital murder case, it is readily apparent why admission of a VIS or similar impact evidence5 at sentencing is "fraught with constitutional danger." See Moore v. Zant, 72 2 F .2d 640, 646 (11th Cir. 1983),reh'g en banc granted, 738 F .2d 1126 (11th Cir. 1984). Every murder trial includes, as part of the prosecution's case, the fact that a particular victim has died and the extent 5Because victim impact legislation is of recent origin, see supra note 4, the statutes themselves have generated few reported cases Even in the absence of statutes, however, proof of this type has at times been offered in capital and non capital trials, and courts have passed upon its propriety. See, e .g ., People v. Free, 94 111.2d 378, 447 N.E. 2d 218, cert. denied, 464 U.S. 865 (1983); Muckle v. State, 233 Ga. 337, 211 S.E.2d 361 (1974); People v. Levitt, 156 Cal.App.3d 500, 203 Cal.Rptr. 276 (1984). Examples of experience with similar evidence elsewhere illuminate the problems of the Maryland law, and are accordingly included here. 11 of his or her injuries. The killing is an element of the crime charged, and proof of injuries is typically relevant to intent and other issues of mens rea as well as to the means employed.® Further, special facts about the victim which aggravate the crime when known to the killer — such as the victim's status as a policeman on duty or vulnerable child or elderly person- will naturally emerge during trial; they will be highlighted in the penalty phase where a state has chosen to make them statutory aggravating circumstances. If a VIS is to have any significance, it would rest on the contents of the statement over and above all of this information. The matter, not bearing on the crime or the defendant's mental state in relation to it, is, of course, what this case is about. 6E.g., certain kinds of wounds, consistent with the close-range firing of a gun, would tend not only to prove the instrumentality of death but also, ordinarily, intent to kill. 12 Typically, those parts of the VIS that go beyond the evidence at trial portray grief--stricken relatives expressing their extreme sorrow, sense of loss, and anger over their bereavement — often in highly emotional terms. Sometimes, these survivors call, explicitly or implicitly (as here), for the death of the perpetrator, or announce their impatience with procedures and delays in the courts. They relate somatic and psychological symptoms of distress attributed by them to the murder, such as physical ailments, effects on pregnancy, lack of appetite, sleeplessness, nightmares, fears and depression. Frequently, too, the adult survivors describe these conditions in their children.7 7Samples of all the varieties of proof detailed in this paragraph and the next appear both in Booth, 306 Md. 172, 234-39, 507 A.2d 1098, 1130-33 (1986), and in Maryland's leading case on victim impact evidence, Lodowski v. State, 302 Md. at 764-72, 780-84, 490 A .2d at 1265-70, 1273- 13 Insofar as the VIS recounts matter pertaining to the actual victim, that too, ordinarily, has no bearing on the circumstances of the crime or the defendant. Frequently, (as here), family members were not present at the time of the killing and have no relationship with the killer. Hence, they tend to dwell upon general good character traits and achievements of the deceased, see , e .q ., Moore_v. Zant, supra (victim's education and work habits), and recollections of "happier days." See, e .g ., Lodowski, 302 Md. at 770 n .8, 490 A.2d at 1268 n.8 (Cole, J., concurring)(topic heading in victim's mother's VIS was entitled "'Our Past Happy Days'"); Tobler v. State, 688 P.2d 350 (Okla. Crim. App. 1984)(surprise Mother's Day family reunion involving the victim). 76 (Cole, J. concurring). See also infra at 40-45; Petitioner's Brief at ___ (Statement of the Case). 14 Such proof at a penalty trial fails to contribute "measurably" — or at all — to the recognized aims of capital sentencing, which, as the Court has often stated, are mainly retribution and general deterrence. See, e .q ■, Enmund v. Florida, 458 U.S. 782, 798 (1982); Greacr v. Georgia, 428 U . S . at 183 (opinion of Stewart, Powell and Stevens, JJ.); see also id. at 233 (Marshall, J., dissenting). These aims explain why capital punishment decisions since Gregg constantly recur to the theme of "personal responsibility and moral guilt," Enmund v. Florida, 458 U.S. at 801, and hence to the constitutional requirement that the 1 ife-or-death decision focus on "relevant facets of the character and record of the individual offender” and "the circumstances of the particular offense. Id. at 798; Woodson v. North Carolina ̂428 U.S. at 304 (opinion of Stewart, Powell and Stevens, JJ. ) . See, e . g , , Ca 1 i tor n i a . v_._ 15 Ramos, 463 U.S. at 1006; Zant v , Stephens, 462 U.S. 862, 879 (1983); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Gregg, 428 U.S. at 189 (opinion of Stewart, Powell and Stevens, JJ.). For Enmund v. Florida, supra, in barring the infliction of death upon a vicarious felony murderer who did not intend any killing to occur, made clear that both the retributive and the deterrent efficacy of capital punishment depend critically on the degree of a defendant's culpability and, above all, his intent -- considerations built into the death-selection standard revolving about the crime and the criminal. See id., 458 U.S. at 799-801. Executing a defendant on the basis of results over which he had no control and which he did not contemplate neither "educates" future offenders nor 16 constitutes "just deserts" for the actions of this particular offender.8 Unintended physical, emotional and psychological after-effects on relatives do not increase the moral blameworthiness of the killer beyond the onus he already bears for committing the murder, and are "constitutionally irrelevant." See California v. Ramos, 463 U.S. at 1001-02 (footnote omitted); Zant v. Stephens, 462 U.S. at 885. Since "the fact that a victim's family is irredeemably bereaved can be attributable to no act of will of the defendant other than" the killing, meting out death on account of "fortuitous circumstances" like "the composition of the ®Even if specific deterrence or incapacitation of the killer (preventing his commission of further crimes) were thought to justify capital punishment, cf. Gregg, 428 U.S. at 183 n.28 (opinion of Stewart, Powell and Stevens, JJ.) (taking no position on the question), achievement of these aims, too, would involve assessment of factors relating to the crime or the criminal. 17 Vk W s" fafnilyi Ptc>pU (/, , I S~C Cal. App.3d at 516-17, 203 Cal. Rptr. at 287-88, or survivors' need for "psychological services," Lodowski, 302 Md. at 764 n .6, 490 A.2d at 1265 n.6, 1267 (Cole, J., concurring); see Md. Code, art. 41, section 124(c)(3)(v), does not further deterrence or retribution. Indeed: It would be difficult to find anything less relevant to the circumstances of this offense or the character of this defendant than testimony concerning the reactions of family members of his unfortunate victims. Their reaction was not to the nature of his crime but to the fact that the crimes happened. People v. Free, 94 111. 2d at 436, 447 N .E .2d at 246 (Simon, J., concurring in part and dissenting in part). Similarly, proof of the victim's sterling character ordinarily has no legitimate place at a capital trial and serves only to inflame the jury. See, e.q.. People v. Holman, 103 111.2d 133, 166-67, 469 N.E. 2d 119, 134- 18 35 (1984), cert. denied, 469 U.S. 1220 (1985).9 In Lodowski, on which the Maryland Court of Appeals relied in Booth, the majority cursorily equated victim impact evidence with the "circumstances surrounding the crime" and therefore deemed it admissible. 302 Md. at 741-42, 490 A.2d at 1254. This argument is wholly unpersuasive. Lodowski, 302 Md. at 774, 490 A.2d at 1270 (Cole, J., concurring). Cf. Moore v. Zant,' 722 F . 2d at 653 n.3 (Kravitch, J., concurring in part and 9 In certain limited situations, facts concerning the victim's character may be relevant to guilt or innocence, or to the degree of the defendant's personal culpability, and hence admissible at capital trials as at others. See generally Fed. R. Evid. 404(a )(2)(permissible for state to show peaceable nature of victim to rebut evidence offered by defendant to prove victim was first aggressor). Compare Moore v. Zant, 722 F.2d at 645 (victim's character bore on existence of an aggravating circumstance) with__id._ at 651 (Kravitch, J., concurring and dissenting) (contra). 19 dissenting in part)("pure sophistry to subsume victim's "positive attributes" under "'circumstances of the crime'").10 On the one hand, to the extent that after effects are idiosyncratic, like the blighting influence on a granddaughter's wedding of the murder involved in this case (JA ___), such an expansive conception of "crime" suggests no principled outer limits germane to culpability. C_f. Evans_v . State, 422 So.2d 737, 743-44 (Miss. 1982)(error in admitting proof of victim's wife's pregnancy, unknown to defendant, at capital sentencing was cured by instruction). On the other hand, as to predictable effects — the likelihood, for 10By contrast, aggravating circumstances such as killing a victim who is known to be an on-duty police officer or especially vulnerable, see supra at 12, genuinely relate to the nature of the offense. See Moore v . Zant, 722 F .2d at 652 n.2 (Kravitch, J., concurring in part and dissenting in part); People v . Levitt, 156 Cal. App. 3d at 516-17, 203 Cal. Rptr. at 287-88. 20 instance, that someone will mourn the victim's loss — their very generality defeats the goal of individualization in sentencing. See, e.q., Zant v. Stephens, 462 U.S. at 879; Eddinqs v. Oklahoma, 455 U.S. 104, 110-12 (1982). In any event, Enmund made clear that the death penalty cannot be grounded on broad notions of responsibility for all foreseeable results of one's acts:11 death imposed on such a 11A pre-Furman state court decision, People v. Love, 53 Cal.2d 843, 350 P.2d 705, 3 Cal. Rptr. 665 (1960)(Traynor, CJ.), is very instructive in this regard. There, the court vacated a capital sentence because the state had presented proof of the victim's extreme pain, in the absence of any showing that the killer had intended to make her suffer when he shot her fatally at point-blank range. Operating under a system where (unlike now) the jury possessed "complete discretion" to assess sentence, and conceding that "retribution may be a proper [sentencing] consideration," the court nonetheless expressed strong doubt "that the penalty should be adjusted to the evil done without reference to the intent of the evildoer." 53 Cal.2d at 856-57 & n.3, 350 P.2d at 712- 13 & n.3, 3 Cal. Rptr. at 672-73 & n.3. 21 basisl2 amounts to "'nothing more than the purposeless and needless imposition of pain and suffering'" and thus to "unconstitutional punishment." See.Enmund, 458 U.S. at 798, quoting Coker.v . G eo rqia, 433 U.S. 584, 592 (1977). 2. By Deflecting the Jury From Its Proper Task of Objectively Considering the Particularized Circumstances of the Individual Offender and Crime, Intro duction of Victim Impact Statements at the Penalty Phase Encourages Arbitrary Sentences of Death._____________________ If a state wishes to authorize capital punishment, it "must channel the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death. Godfrey—v_. 12cf. Gardner_v. Florida, 430 U.S. 349, 359~(1977) : "If, as the State argues, it is important to use such information in the sentencing process, we must assume that in some cases it will be decisive in the [sentencer’s] choice between a life sentence and a death sentence." 22 446 U. S . 420,Georgia, 446 U.S. 420, 428 (1980) (plurality opinion) (citations omitted). Although the jury should have as much relevant data as possible to inform its choice, Gregg, 428 U.S. at 204 (opinion of Stewart, Powell and Stevens, JJ.); see Zant v. Stephens, 462 U.S. at 878, "[i]t would be erroneous to suggest that the Court has imposed no substantive limitations on the particular factors that a capital sentencing jury may consider in determining whether death is appropriate." California v . Ramos, 463 U.S. at 1000. Critically, evidence that introduces arbitrary variables into the life-or-death decision affronts the central constitutional tenet that a capital sentence must be "'based on reason1" -- in appearance and reality— "rather than caprice or emotion." Zant v. Stephens, 462 U.S. at 885, quoting Gardner v. Florida, 430 U.S. at 358. See also People v. Love, 53 Cal. 2d at 856, 350 P .2d 23 at 713, 3 Cal. Rptr. at 673 (pre-Furman case). Because Victim Impact Statements and similar forms of evidence virtually invite jurors to sentence on the basis of "'passion, prejudice or ... other arbitrary factor[s]'," no civilized system should sanction their use at the penalty phase of capital trials. Cf. Gregg, 428 U.S. at 166- 67, 198 (opinion of Stewart, Powell and Stevens, JJ.)(upholding Georgia's capital statutes in part because appellate review minimized the influence of these factors). Judge Cole, the dissenter on this point in Booth, captured the essence of the dangers posed to rational sentencing by such innately inflammatory evidence in his concurrence in Lodowski: In my view, the only purpose in allowing members of the victim's family in a capital sentencing proceeding to vent their passions and express their grief, as in this case, is to exacerbate the aggravating circumstances 24 established by the prosecution. These demonstrations are arbitrary and capricious and create a frenzied environment for the defendant. How can he challenge any testimony that expresses bereavement, religious harm, or infant sorrow? Id., 302 Md. at 786, 490 A.2d at 1276-77.13 130pinions in several capital cases from other jurisdictions articulate compatible views. See, e.q,, People v . Ramirez, 98 111. 2d 439, 453, 457 N.E.2d 31,’ 37 (1983)(citation omitted): "[Ejvidence that a murder victim has left a spouse or children is inadmissible since it does not enlighten the trier of fact as to the guilt or innocence of the defendant or the punishment he should receive, but only serves to prejudice and inflame the jury." See also People v. Free, 94 111.2d at 436, 447 N.E.2d at 246 (Simon, J., concurring in part and dissenting in part): An emotional rendition of the grief of a victim's family, while understand able, can only distract the jury from its weigh ing of the aggravating and mitigating factors 25 Several states have apparently recognized these risks, and responded to them sensitively, by exempting capital penalty trials from the requirements of victim input laws. See supra note 4. In the absence of governing statutes too, courts have disapproved the use in capital proceedings of testimony designed mainly to create sympathy for the victim or his or her family, and simultaneously to generate hatred toward the defendant. See, e .g ■, People v._Holman, 103 111.2d at 166-67, 469 N .E .2d at 134-35; Ice v. Commonwealth, 667 S .W .2d 671, 675-76 (Ky.), cert, denied, 469 U.S. 861 (1984); Wiley v. State, 464 So.2d 339, 348 (Miss. 1986); Tobler v. State, 688 peculiar to the defendant and his crime. Such tes timony is always inflam matory . Cf. Fuselier v. State, 468 So.2d 45 (Miss. 1985)(reversal of conviction and death sentence because victim's daughter was permitted to sit near the prosecutor and openly displayed emotion). 26 P •2d at 353-54; cf. Vela__v. Estelle, 708 F • 2d 954, 964-65 (5th Cir. 1983)(because of counsel s ineffectiveness, jury had been encouraged "to set punishment based on the goodness of the murder victim"), cert. denied, 464 U.S. 1053 (1984). Such rulings, whether or not expressly premised on the Eighth Amendment, effectuate its mandate to avert the risk of death sentences based on "caprice or emotion." See Gardner v, Florida, 430 U.S. at 358.14 They are bolstered by an 14This mandate in no way conflicts with the defendant's position in People v. Brown, 40 Cal.3d 512, 709 P.2d~440, 220 Cal. Rptr. 637 (1985), cert. granted, U-S. __, 90 L.Ed.2d 717 (1986), challenging a penalty-phase instruction that the jury should not be swayed by sympathy. The California Supreme Court had previously held that a jury may not rely upon factually untethered sympathy -- i.e ., sympathy not based on the evidence. People v.. Lanphear, 36 Cal. 3d 163, 168 n. 1, 680 P-2d 1081, 1084 n. 1, 203 Cal. Rptr. 122, 125 n.l (1984); see People v. Easley, 34 Cal. 3d 858, 876 671 P.2d'813," 824, 196 Cal. Rptr. 309, 320 (1983). In Brown, the defendant produced substantial mitigating evidence relating to his character and background, as he was clearly entitled to 27 additional line of precedent that holds inadmissible victim-character or generalized victim-sympathy proof -- as irrelevant or overly inflammatory -- even without regard to the special considerations obtaining in capital sentencing proceedings. See, e .g ., People v. Levitt, 156 Cal. App.3d at 517, 203 Cal. Rptr. at 288 (family's bereavement irrelevant to sentence of a defendant convicted of manslaughter); Henderson v. State, 234 Ga. 827, 828, 218 S.E.2d 612, 614 (1975)(generally, murder victim's do (see, e .g ., Skipper v. South Carolina, U.S. __", 90 L . Ed. 2d 1 (1986); Lockett v. Ohio, supra); the sole issue dividing the parties is whether the no-sympathy instruction foreclosed the jurors' consideration of this evidence, whose relevance no one disputes. See Brief for Respondent in People v. Brown, supra, at 9- 10, 24. Here, by contrast, the issue is precisely the relevance of evidence entirely unrelated to the character or background of a defendant or to his crime, but instead dealing only with collateral facts about a victim or surviving relatives character is irrelevant and inadmissible in a murder trial); Fisher v. State, 482 So.2d 203, 225 (Miss. 1985) (en banc) (same); Welty v. State, 402 So.2d 1159, 1162 (Fla. 1981) (preference for non-family member testimony, whenever feasible, to identify the deceased) ; c f . State_v.__Sprake, 637 S .W .2d 724, 727 (Mo. Ct. App. 1982) (in second-degree murder case, error to call widow solely to expose her to jury, to engender sympathy for the family and prejudice against the defendant); People v. Bartall, 98 111.2d 294, 322-23, 456 N .E .2d 59, 72-73 (1983) (prosecutor's summation on victim's rights held improper but harmless, in part because there had been "no presentation of irrelevant evidence about the grieving family"); Grant v. State, 703 P.2d 943, 945-47 (Okla. Crim. App. 1985)(prosecutor's statement that manslaughter victim was survived by eleven- 29 year old daughter held to be error although harmless) . Simply stated, courts have sought to avoid the dangers of exposing juries to emotion-laden evidence of dubious or non existent relevance, both in capital and ordinary trials. Whether or not the Constitution requires this caution in non capital cases, see supra note 2, it is "essential in capital cases," Lockett v. Ohio, 438 U.S. at 605, where the Eighth and Fourteenth Amendments demand the highest degree of protection against subjectivity and prejudice. E .g ., Gardner v._Florida, supra ; Turner v. Murray, supra. l50f course, under certain circumstances, evidence of the victim's character, good or bad, may bear sufficiently on issues pertinent to the trial to be admissible. See supra note 9. However, it is hard to envision any setting, in a criminal case, in which such matters as survivors' sorrow or physical or psychological symptoms are relevant. Cf. People v.__Levitt, 156 Cal. App. 3d at 157, 203 Cal. Rptr. at 288 (evidence of this sort "is relevant to damages in a civil action"). 30 3. Admission of Victim Impact Evidence Would Necessitate Admission of Expansive Proof of a Similar Type, Offered On Behalf of Defendants.______ A holding by the Court tolerating victim impact evidence would necessarily expand the scope of future penalty trials beyond all reason. For if the Court gives its imprimatur to a wholly new definition of relevance in capital sentencing — a definition loosed from the traditional moorings of the defendant's character, background and crime — it must also deem relevant in mitigation proof whose reach will be bounded only by the inventiveness of counsel. Take as an instance the subject of the victim's character. What principle of logic or fairness could deem it relevant that the deceased was a good person and at the same time irrelevant that he or she was bad? Were the state permitted to prove that a victim was educated and hard working, a defendant should be permitted to 31 show that a victim was a sixth-grade dropout, who never worked a day in his life. Similarly, if it "matters" in the context of capital sentencing that one victim left a family who loved her, it also "matters" that another was hated by surviving relatives — or, indeed, left no family at all. A defendant cannot constitutionally be foreclosed from offering evidence pertinent to the issues in a criminal trial, see, e.g., Chambers v. Mississippi, 410 U.S. 284 (1973), and the same rule applies at the penalty phase of a capital case. See, e.g., Green v. Georgia, 442 U.S. 95 (1979)(per curiam).16 16Where the prosecution has presented evidence enhancing the victim, there can simply be no way to avoid the conclusion that the defendant has a Fourteenth Amendment right to "'deny or explain'" it, by proving, e.g., that the victim was unworthy or unmourned. See, e.g., Skipper v. South Carolina, __ U.S. at ___ n. 1, 90 L . Ed . 2d at 7 , n.~ ~1 ; ___U.S. a t ____, 90 L.Ed.2d at 9-11 (Powell and Rehnquist, JJ., and Burger, CJ., concurring in the judgment) (capital defendant denied due process when he was barred from adducing 32 But if the spectacle of the defendant "trashing" the victim through proof and argument seems inappropriate, consider the further prospect of competing "victims" at penalty trials. Suppose, for example, that the Court sanctions introduction of a VIS containing (as here) graphic descriptions by family members of how the murder has destroyed their lives and thrown them into emotional turmoil. This very case, reveals the type of "contest of weeping families" that would predictably follow. In exercising his right under Maryland law to make an unsworn statement to the jury, Booth sought to portray his family as victims: evidence of his good behavior in custody to counter argument by prosecution that he would be a dangerous prisoner), quoting Gardner v. Florida, 430 U.S. at 362; see generally id. (due process violation where defendant was sentenced to death in part on the basis of confidential information, "which he had no opportunity to deny or ex plain" ) . 33 Now this case, it has had a terrible effect on me and my family and particularly my wife. My * wife has attempted suicide. My grandfather had a stroke. He's past [sic] away. He's deceased now as a result of me facing a death penalty in this case. * * * The effect of this thing on my grandmother has been hard. She is under doctor's care. She has heart problems and I think that if I am sentenced to death, that woman would actually die. I know i t . (JA __; see also JA __). The prosecution did not object to these comments— possibly because state law permits "allocution" by defendants on matters not confined to the record. See Booth, 306 Md. at 197-99, 507 A.2d at 1111 (discussing Md. Rule 4-343 (d)). It would seem, however, that once VIS evidence of the sort admitted against Booth is permitted, the defendant must have the constitutional right to 34 present sworn statements or testimony by parents, grandparents, children and siblings to describe in detail their own physical and psychological "victimization," which could be expected to result from their loved one’s execution.17 If the deceased's weeping mother has a role to play at sentencing, by the same token so must the defendant's: either such feelings properly enter the capital calculus or they do not. Yet to sanction such proof would 17Nothing in the Eighth Amendment compels admission of such collateral evidence, untethered to proof about the defendant1s own better qualities. See, e.q., Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979)(no error in excluding evidence of adverse effects on defendant's children of his prosecution for capital murder since it was irrelevant to mitigation), cert. denied, 444 U.S. 1103 (1980); see general1y Skipper v South Carolina. __U.S. at 90 L. Ed. 2d at 6, 8 n •2. See also Moore v. Zant, 722 F .2d at 653 n.4 (defendant should not be permitted "to argue the victim's worthlessness in mitigation"); State v. Gaskins, 284 S.C. 105, 128, 326 S .E .2d 132, 145 (1985)(no error in excluding confession of victim, a murderer under sentence of death, since victim's status "did not entitle [defendant] to kill him"). 35 be tantamount to toppling the entire edifice of rational capital sentencing jurisprudence which the Court has taken such pains to erect. 4. Victim Impact Statements Invite the Jury to Impose Sentences of Death for Constitutionally Impermissible Reasons. Worse, if possible, than death sentences that are entirely arbitrary in the sense that a strike of lightning is freakish, see Furman, 408 U.S. at 309-10 (Stewart, J., concurring), are those imposed on invidious grounds: where the lightning rod is race, religion, class or wealth, or some other constitutionally forbidden criterion. See Zant v. Stephens, 462 U.S. at 885; Furman, 408 U.S. at 249-51 (Douglas, J., concurring); id. at 310 (Stewart, J., concurring); id. at 363-66 (Marshall, J., concurring); Moore v. Zant, 722 F .2d at 645-46. In addressing the necessarily capricious quality of victim 36 impact evidence, Judge Cole once again gave eloquent voice to the basic problems: What can be a more arbitrary factor in the decision to sentence a defendant to death than the words of the victim's family, which vary greatly from case to case, depending upon the ability of the family member to express his grief, or even worse depending upon whether the victim has family at all? In more practical terms, a killer of a person with an educated family would be put to death, whereas in a crime of similar circumstances, the killer of a person with an uneducated family or one without a family would be spared. Booth. 306 Md. at 233, 507 A.2d at 1129 (Cole, J., concurring in part and dissenting in part). It is no great leap from the judge's perception of the arbitrariness of the listed factors to an understanding that these — and others— have a highly discriminatory potential. 37 This is so for a number of reasons. First, such characteristics as the articulateness of family members will often be the products of class or wealth, thereby serving as surrogates for impermissible status considerations that no one would claim should influence capital sentencing.18 Further, not only the mode of expression but also its substance typically encourages the jurors to consider the social value of the victim and "compare the relative worth of the victim and the defendant to society."19 See Brooks v. Kemp, 762 F.2d 1383, 1439 (11th Cir. 1985) 18It is instructive in this regard to compare the power of expression of the VIS in Booth, see infra at 40-45, with petitioner's admitted sense of inadequacy in allocution: "I've never been a real good speaker in front of people or anything like that. I'm not gifted with words or nothing like that." (JA ___). 19Cf. Moore v. Zant, 722 F.2d at 653 n.4 (Kravitch, J., concurring in part and dissenting in part)(invoking "spectre" of statute listing as aggravating factor that "victim of the murder was a valuable member of society and of her family"). 38 (en banc) (Clark, J., concurring in part and dissenting in part), vacated on other grounds, __ U.S. ______ 92 L . Ed. 2d 732 (1986); Moore v. Zant, 722 F.2d at 652-53 (Kravitch, J., concurring in part and dissenting in part). Social worth, as the jurors view it, will also tend to vary with factors like education, class and wealth, whether of the victim or the survivors— and, regrettably, often with race or religion as well. See, e .g ,, People v. Holman, 103 111. 2d at 167-68, 469 N.E.2d at 135 (death sentence vacated where prosecutor alluded to "religous moral fiber" of victim's mother as well as accomplishments of victim); see generally Turner v._Murray, supra (especially great risk of racial discrimination in capital sentencing). By its very nature, this type of evidence invites the jury to "choose up sides," to empathize with the (usually more attractive) victim or the victim's family, 39 in particular where these are white, middle-class, and otherwise similar to most of the jurors. II. THE ADMISSION AT PETITIONER'S PENALTY TRIAL OF A LONG, IRRELEVANT, INFLAMMATORY VICTIM IMPACT STATEMENT VIOLATED PETITIONER'S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS. Agent Michelle Swann of the Division of Parole and Probation prepared a four-page, single-spaced VIS in this case, reporting the reactions of the victims' son, daughter, son-in-law, and one granddaughter. The statement is fully set out in the Joint Appendix (JA ___) and is excerpted in Petitioner's Brief. See id . at ___ (Statement of the Case). For present purposes, a small sampling of the data contained within this document — which the prosecutor in his closing urged the jurors to "'read out loud'" in the jury room— provides a graphic illustration of why this 40 kind of proof is anathema to rational capital sentencing.2® First, the VIS was replete with emotional and incendiary comments. For example: "'The victims' son feels that his parents were not killed but were butchered like animals'." (JA ___). The victims' daughter "'saw the bloody carpet, knowing that her parents had been there, and she felt like getting down on the rug and holding her mother'." (JA ___). "'[S]he could never forgive anyone for killing them that way'" and "'states that animals wouldn't do this'." (JA___). Interspersed among such remarks were statements amounting to calls for a death 20Booth, 306 Md. at 240, 507 A.2d at 1133 (Cole, J., concurring in part and dissenting in part)(emphasis in original). In light of the prosecutor's exhortation and the fact that the VIS (and the rest of the presentence investigation report) comprised the entire state's case at sentencing, 306 Md. at 194, 507 A.2d at 1109, the use of this grossly inflammatory statement could not have amounted to harmless error. 41 sentence,21 expressions of sentiments of revenge, and implicitly adverse judgments about the course of the prosecution. The daughter, for instance, "'attended the defendant's trial and that of the co- defendant because she felt someone should be there to represent her parents'." (JA ). "'She doesn't feel that the people who did this would ever be rehabilitated and she doesn't want them to be able to do this again or put another family through this'." (JA ___). The son "'doesn't think anyone should be able to do something like this and get away with it'." (JA __ ). Further, "the victims' family members note that the trials of the suspects charged with these offenses have been delayed for over a year and the postponements have been very ^introduction of sentencing recommendations in a capital penalty trial is forbidden by Maryland law. Md. Code, art. 27, section 413(c)(iv). See Lodowski, 302 Md. at 775, 490 A.2d at 1271 (Cole, J., concurring). 42 hard on the family emotionally.... The family wants the whole thing to be over with and they would like to___see___swift and lust punishment ." (JA ___)(emphasis added). In addition to quoting more comments of a similar nature, the VIS recounted the various physical and psychological problems experienced by the interviewees as well as by other members of the family. The statement noted, for instance, that a granddaughter with whom the agent had not spoken had had her wedding, honeymoon and associated memories ruined by the tragic events of the time {JA ___); different grandchildren (also not interviewed by the agent) were poignantly reported as having first learned of their grandparents' death via television. (JA ___). The VIS also described the victims in extremely laudatory terms as "'amazing'" people, who enjoyed a "'very close relationship'," "'had made many devout 43 friends'" (JA ), and whose funeral was "'the largest in the history'" of the funeral home. (JA ___). Finally, it contained editorial comments by Agent Swann22 and global statements by the 22See, e.q.: "'Perhaps [the grand daughter] described the impact of the tragedy most eloquently when she stated that it was a completely devastating and life altering experience'." (JA ___). The agent's "peroration," with which the VIS ended, was as follows: "It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to recover fully from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken from them." (JA ) (emphasis added). C_f. State v. Rushing, 464 So.2d 268, 275 (La. 1985), cert, denied, _ _ U . S . ___, 90 L. Ed. 2d 703 (1986) (error to admit testimony that killing was one of most vicious policeman had ever seen since this was tantamount to 44 survivors that their lives would never be the same again. * * * No one could remain untouched by the genuine suffering conveyed in the statement. But that is, in fact, our point. This type of emotional, inflammatory evidence "has no place in a statutory weighing process which owes its very existence to the constitutional mandate that the death penalty must not be administered in an arbitrary or capricious manner." Booth, 306 Md. at 241, 507 A.2d at 1133 (Cole, J., concurring in part and dissenting in part). Survivors (and understandably sympathetic parole and probation agents) cannot be permitted to function as supplemental prosecutors, raising a hue and cry for vengeance. Because petitioner's sentence of death very opinion that alleged aggravating factor existed). 45 likely was -- and surely appeared to be-- based on caprice and emotion, not reason, this Court must overturn it. CONCLUSION The Court should reverse the judgment of the Court of Appeals of Maryland. Respectfully submitted, JULIUS L. CHAMBERS JAMES M. NABRIT, III JOHN CHARLES BOGER VIVIAN BERGER* 99 Hudson Street 16th Floor New York, New York 10013 (212) 219-1900 ANTHONY G. AMSTERDAM New York University Law School 40 Washington Square South New York, New York 10012 (212) 598-2638 Attorneys for the NAACP Legal Defense and Educational Fund,_Inc. By:_____________ Vivian Berger *Counsel of Record Dated: December 3, 1986 46 Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177