Gingles v. Edmisten and Pugh v. Hunt Supplemental Complaint of Plaintiffs Alan v. Pugh, et al. (81-1066-CIV-5) (Rule 15(d) F.R.C.P.); General Assembly of North Carolina Senate Bill 1; House Bill 1; Reapportionment Criteria 1; Reapportionment Criteria 2

Working File
February 2, 1982 - April 2, 1982

Gingles v. Edmisten and Pugh v. Hunt Supplemental Complaint of Plaintiffs Alan v. Pugh, et al. (81-1066-CIV-5) (Rule 15(d) F.R.C.P.); General Assembly of North Carolina Senate Bill 1; House Bill 1; Reapportionment Criteria 1; Reapportionment Criteria 2 preview

Cite this item

  • Brief Collection, LDF Court Filings. Aikens v. California Respondent's Brief, 1971. 6c5e6920-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/02171f78-5d9b-4df3-a53b-7089268e6248/aikens-v-california-respondents-brief. Accessed May 22, 2025.

    Copied!

    October Term 1971 
No. 68-5027

Earnest James Aikens, Jr.,

vs.
State of California,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court 
of the State of California

RESPONDENT’S BRIEF

Evelle J. Younger,
Attorney General of the 

State of California,
William  E. James,

Assistant Attorney General of 
the State of California,

R onald M. George,
Deputy Attorney General of 

the State of California,
500 State Building,
217 West First Street,
Los Angeles, Calif. 90012, 
(213) 620-2093,

Attorneys for Respondent.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622



SUBJECT INDEX
Page

Question Presented .....................................................  1

Statement of the Case ...............................................  1

A. History of the Case ....................................    1

B. Evidence Received at the Proceedings on
the Issue of Petitioner’s Guilt ................   5
1. The Murder of Kathleen Nell Dodd .. 5
2. The Murder of Mary Winifred Eaton

....................................................................  7
3. Statements and Conduct of Petitioner

Implicating Him in the Dodd and 
Eaton Murders .....................................  9

C. Evidence Received at the Proceedings on
the Issue of Penalty .....................................  19
1. The Murder of Clyde J. Hardaway .. 19
2. Other Felonious Conduct by Peti­

tioner: Burglaries, Attempted Rape, 
and Assault With Intent to Commit 
R ape........................................................  22

3. Psychiatric and Psychological Evi­
dence ....................................................  24

4. Defense Evidence Related to Peti­
tioner’s Background............................... 26

5. Findings of the Trial Court in Fixing
the Punishment at D eath ......................  29

Summary of Argument .........................................   34

Argument ................................................................... 38



11.

Petitioner’s Sentence of Death and Pending
Execution, Resulting From His Conviction of
First Degree Murder, Do Not Comprise Cruel
and Unusual Punishment ................. .............  38

A. Execution Is a Form of Punishment Ex­
pressly Recognized by Provisions of the 
Constitution and Upheld as Constitu­
tional in a Long Line of Decisions by 
This Court ...... ............ ............................ 38

B. Capital Punishment Is Widely Accepted
and Used in American Society and Com­
ports With Contemporary “Standards of 
Decency” .................................... .............  51

C. In View of Petitioner’s Inability to Make
a Clear Showing That the Death Pen­
alty Serves No Legitimate Function, the 
Federal Constitution Leaves the People 
of the State of California Free to De­
termine Through Their Elected Repre­
sentatives That the Protection of Society 
Under Present Conditions Requires 
Death as a Form of Punishment for 
Certain Serious Offenses ......................  71

D. The Death Penalty Is Not Arbitrarily or
Discriminatorily Imposed Upon Racial 
Minorities, the Poor, or the Uneducated 
in California; Prisoners Under Sentence 
of Death Constitute a Representative 
Cross-Section of California’s Criminal 
Population ........... ..................................  103

E. Death Is Not a Cruel and Unusual Pun­
ishment for Petitioner, the Unrepentant



111.

Page
Perpetrator of Three Known, Separate 
Murders Committed for Pecuniary Gain 
and Sexual Gratification ........................  114

Conclusion ......................................................... ..... 117

Appendix. Defendants Under Sentence of Death 
Reviewed by the California Supreme Court, 
1965-1971 ............................................. App. p. 1



IV.

TABLE INDEX Page
Table A Public Opinion Polls on the Death Pen­

alty: California—United States ............. ...........  56

Table B December 1970 Illinois Referendum on 
Whether to Abolish the Death Penalty ............ 57

Table C Number of Prisoners Received in Prison 
Under Death Sentence .......................................... 64

Table D Los Angeles Police Department Study 
of the Deterrent Effect of the Death Penalty, 
February, 1971 .................................................... 87

Table E Homicides in California Prisons, 1965- 
1971, Committed by Adult Felons ....................... 99

Table F Race and the Imposition of the Death 
Penalty in California........................   105

Table G Race and the Commutation of Death 
Sentences in California 1959-1971 ................. 108

Table H Defendants Under Sentence of Death 
Reviewed by the California Supreme Court, 
1965-1971 ..................... ....................._.App. p. 1



V.

TABLE OF AUTHORITIES CITED

Cases Page
Aikens v. California, cert, granted, __  U.S. __ ,

91 S. Ct. 2280.... .......... ............ ..................... 1, 4
Coolidge v. New Hampshire, __  U.S. __ , 91

S. Ct. 2022 ____________- ...............................  71
Francis v. Resweber, 329 U.S. 459 ..... .......... -46, 50
In re Anderson, 69 Cal. 2d 613, 447 P.2d 117

(1968)  ............ —-   ................................. 50, 70
In re Cathey, 55 Cal. 2d 679, 361 P.2d 426 

(1961) .............................      96
In re Kemmler, 136 U.S. 436 ................39, 45, 50
In re Morse, 70 Cal. 2d 702, 452 P.2d 601

(1969) ............................................................  100
In re Seiterle, 61 Cal. 2d 61, 394 P.2d 556

(1964), cert, denied, 379 U.S. 992 ..................  68
In re Seiterle, 71 Cal. 2d 698, 456 P.2d 129 

(1969) ................................................................  68
In re Terry, 4 Cal. 3d 911, 484 P.2d 1375

(1971) .................. .............................................. 68
Jackman v. Rosenbaum Co., 260 U.S. 22 ............ 71
Maxwell v. Bishop, 398 U.S. 262 ............................. 63
Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 

1968), vac’d, 398 U.S. 262 ..................— 77, 117
McGautha v. California, 402 U.S. 183 ..................

............................ 38, 42, 52, 63, 71, 75, 112, 118
McGowan v. Maryland, 366 U.S. 420 ....................  101
People v. Aikens, 70 Cal. 2d 369, 450 P.2d 258 

(1969) ............... ............ ........ ......................... 4
People v. Chessman, 52 Cal. 2d 467, 341 P.2d 

679 (1959), cert, denied, 361 U.S. 925 .........  70



VI.

Page
People v. Daniels, 71 Cal. 2d 1119, 459 P.2d 225 

(1969) ...................................... ............. ........74, 113
People v. Daugherty, 40 Cal. 2d 876, 256 P.2d 

911 (1953), cert, denied, 346 U.S. 827 ............ 50
People v. Friend, 47 Cal. 2d 749, 306 P.2d 463 

(1957) ................................................................  75
People v. Gilbert, 63 Cal. 2d 690, 408 P.2d 365

(1965), vac’d, 388 U.S. 263 .......................96, 97
People v. Goodridge, 70 Cal. 2d 824, 452 P.2d 

637 (1969) .........   .....63, 67
People v. Hall, 199 Cal. 451, 249 P. 859 (1926)

..... -----........... .......... ...................... ..................... 97
People v. Jensen, 43 Cal. 2d 572, 275 P.2d 25 

(1954)    96, 97
People v. Love, 56 Cal. 2d 720, 336 P.2d 33 

(1961) ..................62, 80, 85, 91, 92, 93, 101, 118
People v. Morse, 60 Cal. 2d 631, 388 P.2d 33

(1964)      66, 100
People v. Morse, 70 Cal. 2d 711, 452 P.2d 607

(1969) , cert, denied, 397 U.S. 944 . 100
People v. Mutch, 4 Cal. 3d 389, 482 P.2d 633 

(1971) ................................................................... 74
People v. Peete, 28 Cal. 2d 306, 169 P.2d 924 

(1946), cert, denied, 329 U.S. 790 ................. 95
People v. Purvis, 52 Cal. 2d 871, 346 P.2d 22 

(1959) ................................................................... 96
People v. Robinson, 61 Cal. 2d 373, 392 P.2d 

970 (1964) ..........................................................  67
People v. Robles, 2 Cal. 3d 205, 466 P.2d 710

(1970) ..................................................................  96



V1X.

Page
People v. St. Martin, 1 Cal. 3d 524, 463 P.2d 

390 (1970) ..............................      96
People v. Seiterle, 56 Cal. 2d 320, 363 P.2d 913

(1961) ............................    68
People v. Seiterle, 59 Cal. 2d 703, 381 P.2d 947

(1963) , cert, denied, 375 U.S. 887 .............  68
People v. Seiterle, 65 Cal. 2d 333, 420 P.2d 217

(1966), cert, denied, 387 U.S. 912 ..................  68
People v. Stanworth, 71 Cal. 2d 820, 457 P,2d 

889 (1969) .........................     67
People v. Terry, 57 Cal. 2d 538, 370 P.2d 985

(1962) , cert, denied, 375 U.S. 960 ...............  68
People v. Terry, 61 Cal. 2d 137, 390 P.2d 381

(1964) , cert, denied, 379 U.S. 866 ......... ........ 68
People v. Terry, 70 Cal. 2d 410, 454 P.2d 36 

(1969), cert, denied, 399 U.S. 811 ............... 68
People v. Thornton, L.A. Super. Ct. No. 328445

...............................................................................  60
People v. Vaughn, 71 Cal. 2d 406, 455 P.2d 122 

(1969) .................................     96
Powell v. Texas, 392 U.S. 5 14 .... ............... ............

..............................................49, 72, 75, 93, 95, 102
Robinson v. California, 370 U.S. 660 ..............49, 51
Robinson v. United States, 324 U.S. 282 .............. 92
Rudolph v. Alabama, 375 U.S. 889 ..................... . 76
Seiterle v. Superior Court, 57 Cal. 2d 397, 369 P.

2d 697 (1962) ...................... ............................. 68
Stein v. New York, 346 U.S. 156 .........................  113
Spencer v. Texas, 385 U.S. 554 ................... .........  118
Trop v. Dulles, 356 U.S. 86 ..... 35, 40, 47, 48, 51

............................................  ......52, 54, 63, 70, 76



V lll.

Page
United States ex rel. Townsend v. Twomey, 322 F. 

Supp. 158 (N.D. 111. 1971) ...... ............. ............  68
Walz v. Tax Commission, 397 U.S. 664 ................  71
Weems v. United States, 217 U.S. 349 __ 41, 45, 46

.................................................-................ 48, 51, 71
Wilkerson v. Utah, 99 U.S. 130 ........................ 44, 50
Williams v. New York, 337 U.S. 241 ..66, 75, 76, 113
Williams v. Oklahoma, 358 U.S. 576 ..... ..............  48
Winston v. United States, 172 U.S. 303 ................  75
Witherspoon v. Illinois, 391 U.S. 510 .............. 55, 66

Statutes
Act of April 30, 1790, ch. 9, §§ 1, 3, 8, 14, 33,

1 Stat. 112 ....................................................   43
Act of April 2, 1792, ch. 16, § 19, 1 Stat. 246 .... 43
Cal. Code Civ. Proc. § 170.6 ................................... 2
Cal. Mil. & Vet. Code § 1670 ........................    73
Cal. Mil. & Vet. Code § 1672(a) ........................... 73
Cal. Pen. Code:

§ 37 .........          73
§ 128 ............................     73
§ 187 ............... ............. ......... ..........................2, 3
§ 188......................... ................... ........................ 3
§ 189 ..........................................   3
§ 190 ................................................................ 3, 73
§ 190.1 ................. ......................................3, 4, 103
§ 209  ......................... ............. ............ 73, 74, 95
§ 2 1 3 ..................................................................... 90
§ 2 1 9 .............................................................   73
§ 461 .............................................................  90



IX .

Pag©
§ 671 ..........      90

§§ 1026-27 ..........................................................   103
§ 1181(6) (7) ..................     113
§ 1193 ......................................   4, 69
§ 1227 ........................................................ .........  69
§ 1239 .................................... ............... ..............  67
§ 1239(b) ................................................. ......4, 113

§§ 1368-70 .................................... ............ ...........  103
§ 3046 ................   95, 99
§ 3604 .......................................      4

§§ 3700-06 ...........................      103
§ 4500 .....................      73

§§ 4800-06 ........................................................   103
§ 4801 ..............................    113
§ 4812 ....................   113
§ 12310 .......................................   62, 73

18 U.S.C. § 1751 ......................................... ..........  62
49 U.S.C. § 1472(i) .............................................. 62

Constitutions
Cal. Const. Art. I, § 6 ...............
Cal. Const. Art. V, § 8 ............
U.S. Const. Art. I, § 9 ...............
U.S. Const. Art. II, § 2 ...............
U.S. Const. Art. Ill, § 3 .............

..............................  44

....-........................ 95
..........................................  39

..............................  38
..........................................  39

U.S. Const. Amend. V ..................................... 34, 39
U.S. Const. Amend. VIII ....34, 40, 41, 42, 43, 44, 45

.........................46, 47, 48, 49, 50, 65, 70, 102, 117
U.S. Const. Amend. X ............................................  39
U.S. Const. Amend. XIV ............ 40, 46, 49, 70, 118



X.

Texts Page
American Bar Association, Section of Criminal 

Law Proceedings— 1959      ...................... 85
Amsterdam, Comment, Racism in Capital Punish­

ment: Impact of McGautha v. California, 1 
Black L. J. 185 (1971) ....... ........... ...............  306

2 Basic Writings of St. Thomas Aquinas 712, 843 
(Pegis ed. 1945) ......................   54

Bedau, Death Sentences in New Jersey 1907-1960,
19 Rutgers L. Rev. 1 (1964) ............. ...106, 107

Bedau, The Death Penalty in America 6, 20,
123, 130, 154 (rev. ed. 1967) ..........39, 58, 80, 94

Black’s Law Dictionary 1466 (4th ed. 1951) .....  39
4 Blackstone, Commentaries 18 (Tucker ed. 1803)

...........    91
California Assembly, Report of the Select Com­

mittee on the Administration of Justice, Parole 
Board Reform in California 13 (1970) ..............  98

California Bureau of Criminal Statistics, Crime 
and Delinquency in California— 1969 (1970) .. 105

California Bureau of Criminal Statistics, Death in 
Custody—California 1962-1968 (1969) ...........   114

California Department of Corrections, California 
Prisoners— 1970 (197..) ...................................  105

California Department of Corrections, California 
Prisoners— 1968 (1969) ...............................64, 111

California Department of Corrections, Executions 
in California 1943 Through 1963 (1965) ....79, 94
..............................................96, 109, 111, 112, 114

California Legislature, Final Calendar of Legisla­
tive Business: Regular Session 1970, Assembly 
Final History (Bill 20) 52 ...........    62



XI.

Page
California Legislature, Legislative Index (August

17 ,1971)................................. .......................... 62
California Legislature, Senate Weekly History 

(September 9, 1971) .................. ....................... 62
California Senate, Hearing Report and Testimony 

on Senate Bill No. 1, 1960 Second Extraordi­
nary Session, Which Proposed to Abolish the 
Death Penalty in California and to Substitute 
Life Imprisonment Without Possibility of Parole 
133-35, 149-54, 156, 161 (March 9, 1960) ..92, 96

Coakley, Capital Punishment, 1 Am. Crim. L. Q.
27 (May, 1963) ........ .........................85, 110, 111

Erskine, The Polls: Capital Punishment, 34 Pub.
Op. Q. 290 (1970) .................. ................  56, 109

Federal Bureau of Investigation, Uniform Crime 
Reports—-1970, 7-8, 118, 131 (August 31, 
1971) ........................................... 78, 106, 108, 117

Florida Special Commission for the Study of Abo­
lition of Death Penalty in Capital Cases, Re­
port 31 (1965) ................... ...........................58, 81

Goldberg & Dershowitz, Declaring the Death Pen­
alty Unconstitutional, 83 Harv. L. Rev. 1773 
(1970) .............................................................. 44

Granucci, “Nor Cruel and Unusual Punishments 
Inflicted:” The Original Meaning, 57 Calif. L.
Rev. 839 (1969) ...................    40

Holy Bible (King James version) ........   53
Illinois Secretary of State, Constitution of the State 

of Illinois & United States 13 (1971) ..... ...... 57
Laurence, A History of Capital Punishment 1 

(1932) ...............    52



Xll.

Page
Legislative Drafting Research Fund, Columbia 

University, Index Digest of State Constitutions 
343 (2d ed. 1959) ..... ............. ......... ..............  44

Legislative Reference Service, Library of Congress, 
Constitution of the United States of America 28 
(rev. ann. ed. 1964) ..........................................  38

National Commission on Reform of Federal Crim­
inal Laws, 2 Working Papers 1359 (n. 47) 
0970) ................................................................. 75

Hearings Before the Subcommittee on C rim inal 
Laws and Procedures of the Senate Committee 
on the Judiciary on S. 1760, To Abolish the 
Death Penalty, 90th Cong., 2d Sess. 212 
(1970) ................................................................. 74

Note, The Effectiveness of the Eighth Amendment:
An Appraisal of Cruel and Unusual Punish­
ment, 36 N.Y.U. L. Rev. 846 (1961) .......... 40, 44

Packer, Comment, Making the Punishment Fit the 
Crime, 77 Harv. L. Rev. 1071 (1964) ....65, 66, 75

Post—Conviction Remedies in California Death 
Penalty Cases, 11 Stan. L. Rev. 94 (1958) .. 69

Powers, Crime and Punishment in Early Massa­
chusetts 308 (1966)........     42

Report of New Jersey Commission to Study Capi­
tal Punishment 8, 9-10 (October, 1964) ..94, 106

- ............................................................................................................. 110, 112
Royal Commission on Capital Punishment 1949-

1953 Report, 24, 274, 335, 340 (1953) .......  78
........................................ -............................... 85, 92

St. Augustine, City of God 27 [Book I, ch. 21] 
(Mod. Library ed. 1950) .................................  54



XIII.

Pago
Special Issue, A Study of the California Penalty 

Jury in First-Degree Murder Cases, 21 Stan. L.
Rev. 1297 (1969) ........ ........... .............. '...106, 109

Schuessler, The Deterrent Influence of the Death 
Penalty, 284 Annals of the Am. Acad, of Pol.
and Soc. Sci. 54 (Nov. 1952) ............................  106

State of California, Joint Legislative Committee 
for Revision of the Penal Code, The Criminal 
Code §315(a)(1) (Staff Digest) 18 (1971) .. 62

United Nations, Department of Economic and So­
cial Affairs, Capital Punishment 9 (1968) .. 65

U.S. Bureau of Prisons, National Prisoner Statis­
tics Bulletin: Capital Punishment 1930-1968 
(August, 1969) 7 (Table I), 11 (Table 3), 12
(Table 4), 30 (Table 15) ........44, 62, 64, 68
.................................................................. 74, 79, 105

Van Den Haag, On Deterrence and the Death 
Penalty, 60 J. Crim. L. C. & P. S. 141 (June, 
1969) ..................................... 77, 86, 101, 110, 113

Miscellaneous
Allen, Capital Punishment: A Matter of Human 

and Divine Justice, The Police Chief, vol. 27
(March, 1960) 1 ...................... .....................54, 59

Allen, Capital Punishment: Your Protection and 
Mine, the Police Chief, Vol. 27 (June, 1960)
2 2 ........................................... .................... -.........  59

California State Prison at San Quentin, Capital 
Punishment in California 3 (August 1, 1970) .. 70

California State Prison at San Quentin, Execution
Data (September 1, 1971) ............................67, 104

Christianity Today, vol. IV, No. 1 (October 12,
1959) 7 .......... ................... ....... ........ ....... ....... 58

District Attorneys’ and County Counsels’ Associa­
tion of California, Official Position on Capital 
Punishment 1 (September 2, 1971) ..................  86



XIV.

Page
Field Research Corporation, The California Poll,

Release No. 635 (May 22, 1969) ...... .............. . 56
Field Research Corporation, The California Poll,

Release No. 726 (September 14, 1971) ............  56
Gallup International Inc., Gallup Opinion Index 15 

(Report No. 45, March, 1969) ......................... 56
Los Angeles Police Department, Detective Bu­

reau, Administrative Analysis Section, A Study 
by the Los Angeles Police Department on 
Capital Punishment 3, 11 (February, 1971) ....
....................... .................. .............—.86, 87, 88, 89

Los Angeles Times:
Part I, p. 1 (Dec. 13, 1958) ............................. 96
Part I, p. 8 (Feb. 14, 1959) ......   57
Part I, p. 1 (Aug. 10, 1963) ............................. 58
Part I, p. 21 (Nov. 16, 1966) ............    59
Part II, p. 6 (May 26, 1967) .........    I l l
Part III, p. 8 (July 15, 1967) ............................  58
Part I, p. 20 (Dec. 18, 1969) ...........................  58
Part I, p. 1 (Aug. 8, 1970)..........     97
Part I, p. 3 (Jan. 31, 1971) ...........................  98
Part I, pp. 1, 3 (June 23, 1971) ................59, 92
Part I, p. 15 (Aug. 12, 1971) ......................  65
P arti, p. 1 (Aug. 22, 1971) ............................... 97
Part I, p. 3 (Aug. 25, 1971) ...........................  97
Part I, p. 1 (Sept. 14, 1971) .................    98
Part I, p. 1 (Sept. 15, 1971) ................. ...59, 98

New York Times, p. 31 (July 23, 1971) .............. 69
Sacramento Bee (May 5, 1967) ..........................  86
The American Scholar, vol. 31, No. 2 (Spring

1962) 181-91 ____ _________ ___ ___ ______  59
The New Leader, vol. 44 (April 3, 1961) 18 __  59
The Tidings 9 (Feb. 13, 1959) ...................... 54, 59



IN THE

Supreme Court of the United States
October Term 1971 

No. 68-5027

Earnest James A ikens, Jr .,

vs.
State of California,

Petitioner,

Respondent.

On Writ of Certiorari to the Supreme Court 
of the State of California

RESPONDENT’S BRIEF

QUESTION PRESENTED

The petition for writ of certiorari was granted lim­
ited to the following question:

“ ‘Does the imposition and carrying out of the 
death penalty in this case constitute cruel and un­
usual punishment in violation of the Eighth and 
Fourteenth Amendments?’ ,n

STATEMENT OF THE CASE

A. History of the Case
In an indictment returned by the Grand Jury of 

Ventura County, State of California, on April 30, 1965, 
petitioner was charged with the murder of Mary Wini-

K... U.S......, 91 S. Ct. 2280.



—-2—

fred Eaton on April 26, 1965, a violation of California 
Penal Code section 187. [R., Cl. Tr. I, p. I .]2 The 
same grand jury on August 13, 1965, indicted peti­
tioner for a second violation of the same provision, the 
murder of Kathleen Nell Dodd on April 4, 1962. [R., 
Cl. Tr. Ill, p. 1.]

In each case two attorneys were appointed to rep­
resent petitioner. [R., Cl. Tr. I, pp. 4, 6; Cl. Tr. Ill, 
p. 3.] On motion of defense counsel the court ordered 
that $750 might be expended by said counsel for in­
vestigation purposes, $350 for employment of a psy­
chiatrist, and $750 for an electroencephalographer. 
[R., Cl. Tr. I, pp. 6, 20; Cl. Tr. Ill, p. 19.] Petitioner’s 
motions for discovery of the prosecution’s evidence were 
also granted. [R., Cl. Tr. Ill, p. 19; Cl. Tr. II, p. 115.1

Petitioner pleaded not guilty to each charge, and the 
two cases were consolidated for trial. [R., Cl. Tr. I, 
pp. 21, 54; Cl. Tr. II, p. 8.] Petitioner then exercised 
his right under California law3 to disqualify the judge 
to whom the case was initially assigned for trial. [R., 
Cl. Tr. Ill, pp. 43-44.] Thereafter on three occasions 
petitioner personally, both his counsel, and the prose­
cuting attorney waived trial by jury. [R., Cl. Tr. I, pp. 
72, 77, 96-100, 109-13; Cl. Tr. II, p. 115.]

After presentation of the evidence on the issue of 
guilt and extensive arguments thereon, the court found

References are to the record in the state proceedings. Pend­
ing is a motion filed by respondent, with petitioner’s acquiescence, 
requesting that the Court consider this case upon the original 
record and dispense with the printing of an appendix, since the 
record comprises several thousand pages. The designations Cl. 
Tr. I and II  refer to the two volumes of clerk’s transcript in 
case CR 5527 and the designation Cl. Tr. I l l  to the single vol­
ume of clerk’s transcript in case CR 5705.

sCal. Code Civ. Proc. § 170.6.



—3

petitioner guilty of murder4 as charged in both in­
dictments and found the offenses to be in the first de­
gree.5 [R., Cl. Tr. II, p. 209. |

During the course of the further proceedings which 
took place on the issue of penalty,B a difference of 
opinion arose between petitioner and his counsel7 as 
to whether petitioner should take the stand in his own 
behalf, and the trial court appointed a third attorney 
for the limited purpose of advising petitioner of his 
rights and the consequences of taking the stand. After 
consultation with counsel, and a day’s deliberation, pe­
titioner chose to abide by the advice of counsel not to 
testify. [R., Cl. Tr. II, pp. 269-70.]

After presentation of the evidence on the issue of 
penalty and extensive argument thereon by counsel 
(and by petitioner personally, by leave of the court), 
the court fixed the penalty at death on the Eaton mur­
der. [R., Cl. Tr. II, pp. 274, 296.] After argument on 
petitioner’s motions for new trial or for reduction of 
punishment, including argument by petitioner person-

4Until its amendment in 1970 to include feticide, California 
Penal Code section 187 provided: “Murder is the unlawful 
killing of a human being, with malice aforethought.” Malice is 
defined in California Penal Code section 188.

"Premediated and deliberate murder, as well as murder com­
mitted in the perpetration of certain felonies (e . g robbery, bur­
glary, or rape), is murder in the first degree. Cal. Pen. Code 
§ 189.

''■First degree murder is pupishable in California in the alter­
native by death or life imprisonment, at the discretion of the 
trier of fact, while second degree murder is punishable by im­
prisonment from five years to life. Cal. Pen. Code § 190. Cali­
fornia provides for bifurcated proceedings on the issues of guilt 
and penalty in capital cases. Cal. Pen. Code § 190.1,

7One of petitioner’s two appointed attorneys became ill during 
the course of the penalty proceedings, which continued in his 
absence at the request of petitioner’s other attorney. [R., Cl. 
Tr. II, p. 244.]



4

ally, said motions were denied by the trial court. [R., 
Cl. Tr. II, p. 299.] On April 7, 1966, petitioner was 
sentenced to death" on the Eaton murder and to 
life imprisonment on the Dodd murder,9 the sentences 
being ordered to run concurrently. [R., Cl. Tr. II, p. 
300; Cl. Tr. Ill, pp. 134-35.]

Petitioner filed notice of appeal from the judgment 
imposing the punishment of life imprisonment. [R., 
Cl. Tr. Ill, p. 137.] Appeal to the California Supreme 
Court from a judgment imposing the death penalty is 
automatic under California law.10 On February 18, 
1969, the California Supreme Court, in a unanimous 
opinion written by Justice Peters, affirmed the judg­
ment in its entirety. People v. Aikens, 70 Cal. 2d 369 
[450 P. 2d 258] (1969). On March 25, 1969, the 
trial court fixed June 4, 1969, as the date for peti­
tioner’s execution.11

Justice Douglas extended the time for filing a peti­
tion for writ of certiorari until May 30, 1969, and on 
May 23, 1969, stayed petitioner’s execution. The pe­
tition was filed on May 29, 1969, and, with petitioner’s 
motion for leave to proceed in forma pauperis, was 
granted on June 28, 1971.12

"California Penal Code section 3604 provides: “The punish­
ment of death shall be inflicted by the administration of a lethal 
gas.”

California Penal Code section 190.1 provides in part: “The 
death penalty shall not be imposed, however, upon any person 
who was under the age of 18 years at the time of the commission 
of the crime.” The record (reporter’s transcript, references to 
which are cited herein as R.) indicates that petitioner’s age was 
several days under 17 years at the time of the Dodd murder, and 
20 years at the time of the Eaton murder. [R. 4474.]

10Cal. Pen. Code § 1239(b).
n See Cal. Pen. Code § 1193.

U.S......, 91 S. Ct. 2280.



B. Evidence Received at the Proceedings on the Issue 
of Petitioner’s Guilt

1. The Murder of Kathleen Nell Dodd
In April of 1962 Kathleen Nell Dodd, a 25-year-old 

Caucasian woman, lived in the City of Ventura, Cali­
fornia, with her husband, Ventura County Deputy 
Sheriff Robert Dodd, and their two daughters, aged 
three and one. [R. 57-58, 61, 88, 2860, 2882.] Mrs. 
Dodd was five months pregnant at that time. [R. 127.] 
Mrs. Dodd had expressed concern over the type of 
neighborhood in which she lived. Shortly before her 
death, a two- to three-foot length of pipe was thrown 
through her front window while her husband was away 
at work, and during the week or two preceding her 
death she had observed a brown Dodge or Chevrolet 
parked nightly near her residence between midnight and 
5:00 a.m. She always locked her doors and before 
opening them always ascertained the identity of her 
visitors even when their arrival was expected. She had 
even told a neighbor that in the event a criminal were 
to intrude into her house, she would run outside in 
order to lead him away from her children. [R. 59, 
2001-02, 2006, 2021-22.]

At 6:30 p.m. on April 3, 1962, Deputy Dodd left 
to attend his evening college classes. [R. 62.] About 
midnight Mrs. Clair McWilliams, a resident in the area, 
was awakened by “a very high, shrill, prolonged scream. 
It had a very unearthly sound to it.” She ran to the 
driveway on the adjoining property and observed a 
figure running toward the gate of the patio in a rapid 
zig-zag motion. She also heard the sound of twigs crack­
ling to her left. As Mrs. McWilliams approached with 
her 17-year-old son, who was armed with a rifle, and 
her small dog, she realized that the figure was that of



—6—

a woman, from whom a steady stream of blood was 
flowing, emitting the sound of a running faucet. The 
blood-covered body immediately collapsed, and the 
woman, later identified as Mrs. Dodd, appeared to be 
dead. [R. 24-33, 54.]

Upon his return to the Dodd residence at 1:30 a.m. 
after visiting some friends, Deputy Dodd had noticed 
that the back door was unlocked; the television was 
on; the two little girls were asleep, but Mrs. Dodd was 
absent. Wet stains which he noticed on the floor, the 
coffee table, and two chairs appeared to be tea stains. 
Sixty dollars from a drawer, and a knife normally in 
a kitchen knife rack, were missing. After several tele­
phone calls to various friends to ascertain the where­
abouts of his wife, Deputy Dodd contacted the Ven­
tura Police Department. [R. 62-64, 67-68, 72, 80, 83, 
85.]

Police inspection of the neighborhood disclosed the 
following. Marks in the driveway where Mrs. Dodd’s 
body was found were indicative of a struggle. A pack 
of matches and a package of Salem cigarettes (a brand 
smoked by both Mrs. Dodd and petitioner) were found 
in this area. A trail of blood led from them to the lo­
cation of the body. Across from the driveway in a 
grassy area were signs of a person’s having crawled 
along the ground. [R. 92, 140, 154-55, 1321-22, 1491.]

On a railroad embankment about 600 feet from 
the Dodd home, the police found the missing knife be­
longing to the Dodds, a pair of panties, and Mrs. Dodd’s 
eyeglasses. An indentation in the soil suggested that a 
person had been sitting or lying with his head at the 
top of the embankment, and further down another 
indentation suggested the former presence of a kneeling



-7—

person. Other marks indicated that someone had gone 
up the side of the embankment and slipped backward. 
[R. 83, 86, 142-43, 148-49, 153.]

The autopsy performed on Mrs. Dodd’s remains dis­
closed several knife wounds in the neck penetrating 
the carotid artery, the thyroid, and the voice box, caus­
ing extensive hemorrhaging. There were also pressure 
mark abrasions on the neck, bruises on the arms and 
legs, and knife wounds on one arm and three fingers 
and in the chest, one of the lungs, the abdomen, the 
liver, and the back. The autopsy verified the presence 
of a 5-month-old male fetus and in the vaginal area the 
presence of sperm and acid phosphatase, a chemical 
substance produced by the male sexual organs. In the 
opinion of the pathologist, sexual intercourse had oc­
curred no longer than two to three days prior to death. 
[R. 180-205, 210, 215-16, 677.] Deputy Dodd last 
had sexual intercourse with his wife about nine days 
prior to her death. [R. 125.] Soil deposited in the 
crease between the deceased’s buttocks was similar in 
type to that found on the railroad embankment. [R. 
217, 616-19, 677-78.]

2. The Murder of Mary Winifred Eaton

In April of 1965 Mary Winifred Eaton, a Caucasian 
woman in her sixties, lived with her husband Frank 
Eaton in the City of Ventura, California, with their 
adopted children, Eddie Eaton and Susan Mann, and 
Susan’s husband, David Mann. [R. 1128-A, 1740-41, 
1802-03, 2860.] On April 26, 1965, Mr. Eaton left 
for work at 7:35 a.m. and Susan, David, and Eddie left 
the house at 8:20 a.m. [R. 848, 1741.] At that time 
Mrs. Eaton told Susan that she was going to wax the 
floors, as she apparently began to do later in the morn-



— 8

ing. [R. 1742, 1749-50.] A commercial census taker 
who had previously known Mrs. Eaton received no 
answer upon knocking at the Eaton residence at 10:00 
a.m. but did speak to Mrs. Eaton on a second visit that 
morning between 11:00 and 11:30. No witness testi­
fied to seeing her alive after that hour. [R. 771-75.]

Upon returning home about 3:40 p.m., Susan and 
David were greeted by petitioner from across the street. 
[R. 1742-43.] Mr. Eaton returned home about 5:00 
p.m. |R. 849-50.] The Eaton family became concerned 
when Mrs. Eaton did not return, and they began a 
search of the house. Her automobile was in the garage, 
and a door between two adjoining garages, usually kept 
closed, was open. [R. 857-59.] Money was missing 
from a grocery purse, and a vacuum cleaner was over­
turned. [R. 852, 856-57, 1746, 1763-65.] At 6:45 
p.m. Mrs. Eaton’s body, initially overlooked because it 
was mostly covered with bedding, was discovered by 
her husband in Eddie’s bedroom. [R. 861.]

Mrs. Eaton’s hands were bound behind her with a 
belt, and another belt was tied around her neck. [R. 
902-04, 1358-59.] An autopsy revealed that a knife, 
apparently taken from a drawer in the Eaton residence, 
had been used to stab her repeatedly; the major cause 
of death was hemorrhage and shock caused by a large 
wound in the neck severing the jugular vein and the 
trachea and reaching the spine. Other knife wounds 
were located in the back of the neck and the chest, 
with five entries into the heart. A vaginal smear taken 
from Mrs. Eaton disclosed the presence of sperm and 
seminal fluid. [R. 1631-38, 1643-46, 1649, 1662, 1807, 
1834, 1839.] Mrs. Eaton had last had sexual relations 
with her husband seven days prior to her death, and



—9—

apparently he was physiologically incapable of pro­
ducing sperm. [R. 867, 1596.]

Mrs. Eaton’s body had been partially covered with 
bedding, and an attempt had been made by her assail­
ant to remove blood from the knife prior to replacing it 
in the kitchen drawer. [R. 861, 1288-89, 1839.] Two 
purses were found near her body. [R. 862-63.]

3. Statements and Conduct of Petitioner Implicating Him in the 
Dodd and Eaton Murders

On August 25, 1961, petitioner, a Negro, was de­
livered to the Southern Reception Center of the Cali­
fornia Youth Authority at Norwalk; he was transferred 
to the Preston School of Industry on October 10, 1961, 
and paroled on March 12, 1962. [R. 1966-67, 2850. ]

On March 27, 1962, petitioner’s mother, Mrs. Liller 
Lewis, purchased a brown and tan 1953 Chevrolet from 
McMonica Motors. Thereafter petitioner stopped by the 
agency frequently; he was driving the vehicle. [R. 2432- 
37, 2479-81.]

On April 3, 1962, petitioner asked Mike Dixon to 
drive him home from the residence of a friend named 
Carter. When Dixon refused, petitioner pulled a knife 
on him, but Dixon viewed the incident as a joke, and 
he and Thomas Chambers drove petitioner home about 
11:00 p.m. Petitioner told Dixon that he had a date 
with a “white woman” that evening. [R. 495-99, 508- 
09, 512-13.] Three or four days earlier petitioner had 
spoken to Chambers about a “white woman” and had 
stated that “she had a good pussy.” [R. 238.]

Dixon saw petitioner at police headquarters on the 
morning after the Dodd murder, at which time peti­
tioner related that he was being held on suspicion of



- 10-

having killed Mrs. Dodd. [R. 502-03. j On the fol­
lowing day, at Carter’s house, petitioner told Dixon, 
“ ‘I killed the Dodd woman’ ” because “ ‘[s]he was 
going to cut me loose.’ ” Asked about a scratch on his 
face that had not been there the evening before, peti­
tioner replied, “ ‘Nothin’ but that good lovin’.’ ” When 
petitioner removed his shirt while washing an automo­
bile, scratches on his back were apparent. Asked about 
them, he reiterated his previous remark. [R. 503, 505- 
07.]

However, on the evening after the Dodd murder 
Chambers had seen petitioner at Carter’s house and 
had asked him about the scratch on petitioner’s face. 
Petitioner replied that Ida Spellman, a policewoman, 
had slapped him (which in her testimony she denied). 
[R. 240-41, 607-08. j Two or three days later petitioner 
told Dixon, as well as petitioner’s parole officer, that 
he had scratched his face on a nail in a garage. |R. 
241, 601, 605.] When Dixon and Carter confronted 
him with his inconsistent explanations concerning the 
scratch, petitioner said he did not wish to discuss the 
matter. About this time petitioner was present when 
the Dodd murder was discussed and said he did not 
want to hear about it. Petitioner had money at this 
time, and four or five days after the Dodd murder he 
apparently lost $75 or $80 gambling. [R. 241-43.]

Three months after the murder, Deputy Dodd saw pe­
titioner at the booking office of the Ventura County 
Jail. At that time Deputy Dodd was not investigating 
any crime involving petitioner, nor did he interrogate 
him. Petitioner initiated a conversation and asked Depu­
ty Dodd if he was the deputy sheriff whose wife had 
recently been killed. When Deputy Dodd replied af­
firmatively, petitioner declared, “ ‘It must have been a



— 1 1 -

pretty bad guy that would do something like that.’ ” 
[R. 87-89, 92.]

On July 19, 1962, petitioner was returned to the cus­
tody of the Youth Authority at the Preston School of 
Industry and transferred to the Southern Reception 
Center on September 28, 1962. He was paroled on 
December 20, 1962, only to be returned to the South­
ern Reception Center on February 20, 1963, and trans­
ferred to the Youth Training School at Ontario, Cali­
fornia, on March 1, 1963. Paroled again on January 
16, 1964, petitioner was returned to the Southern Re­
ception Center on March 30, 1964, apparently on a 
charge of assault and battery, and transferred to the 
Youth Training School on April 20, 1964. [R. 1375, 
1966-67.]

During these periods of custody he made the follow­
ing incriminating statements to other inmates.

In July of 1962, Barney White met petitioner in 
the Ventura County Juvenile Hall. The two of them 
observed Deputy Dodd and shortly thereafter petitioner 
told White that when he was burglarizing the Dodd 
house, Mrs. Dodd had tried to get him to leave; he 
had picked up a knife, chased her outside through a 
field near the railroad tracks, and raped and killed her, 
leaving the knife near the tracks. [R. 453-56.]

About the same time, petitioner pointed out Deputy 
Dodd to another inmate as the deputy whose wife had 
been killed, and told the inmate, Bennie Rochester, that 
petitioner had killed her. Subsequently, petitioner said 
he “was just kidding,” and upon encountering Roches­
ter shortly before the present trial, three years later, pe­
titioner told him he was “going to get” him. [R. 468- 
71.]



-1 2 -

At the Preston School of Industry, petitioner ap­
proached Gene Noreen, who was reading a comic book. 
Petitioner was “bragging” about “raping” and “killing” 
a “ ‘sheriffs wife.’ ” |R, 427-28, 434, 440. J He related 
that he had gone up to her house and knocked, that 
she opened the door a bit, then tried to close it; he 
forced his way in and tried to rape her, but she scratched 
him. He related tearing off Mrs. Dodd’s clothes, chas­
ing her, and cutting her up. [R. 432, 442-44.] Petition­
er had a knife, which he kept sharpened, during his 
stay at the institution. [R. 433. |

Richard Carreiro knew petitioner at Preston in 1962. 
Petitioner told him he had gotten into an argument 
with a “white girl” and had killed her. In 1963 the 
two inmates saw each other at the Youth Training 
School, where petitioner repeated his statement, and 
possibly said he was “going with” her; he said he 
“ [s] lapped her around, she started running. He was 
chasing her through back ways, caught her in the yard 
and stabbed her” “a lot.” [R. 474-77, 484.]

On February 26, 1965, petitioner was paroled from 
the Youth Training School. [R. 1966-67.]

During the second week of April, 1965, petitioner 
showed up at the office of Inspector King, Chief of 
Detectives of the Ventura Police Department, and told 
him that he had information on narcotics and wanted 
to work as a narcotics agent. Inspector King said he 
would discuss the matter in the event petitioner pro­
duced some reliable information. When petitioner ap­
peared at Inspector King’s office a week later and 
claimed to be broke, King gave him $2 of King’s own 
money. |R. 1399-1401. | During this period another of­
ficer gave $1 of his own money to petitioner when he



showed up at the station claiming he was short of 
money. [R. 621-22.]

On April 13, 1965, thirteen days prior to the rape- 
murder of Mrs. Eaton, the county health department 
tested petitioner, found him to have gonorrhea, treated 
him, and told him to return monthly for blood tests. 
[R. 1939-41.]

Petitioner was an acquaintance of Eddie Eaton and 
had been inside the Eaton residence on five occasions. 
Mr. Eaton described him as a “rather sharp boy” who 
“knows what he sees,” and who “could do almost 
anything if he decided to really do it”; a person “having 
lots of ability” but not always truthful. [R. 886-90, 
1803-06.]

On the Saturday night preceding Mrs. Eaton’s death, 
petitioner and some acquaintances went to Michael 
Lawthorn’s house. When the conversation turned to 
girls, petitioner remarked that he knew quite a few, 
that he had been out with Caucasian girls, and “that 
they were a nice piece of ass.” [R. 345-49.] On the 
following evening petitioner advised Lawthorn on the 
subject of “how to make girls hot.” [R. 352.] Peti­
tioner also attempted to listen through the wall to a 
“young couple that lived next door, . . . getting ready 
to go to bed,” and proposed a scheme to take photo­
graphs of persons through their windows at night and 
blackmail these individuals. [R. 354-55.]

On April 26, 1965, petitioner was seen in the 
general neighborhood of the Eaton residence by var­
ious witnesses — at 10:30 a.m., before 11:00 a.m., 
around 11:00 a.m., and at 11:30 a.m. [R. 722-23, 763, 
2376-77, 2381-82, 2396-97.] About noon, petitioner 
asked Mr. and Mrs. Ira Shinavar, who lived approx-



— 14-

imately across the street from the Eatons, whether 
there was any work for him to do. Petitioner was of­
fered a dollar to catch a gopher under their lawn. 
Petitioner replied, “ ‘Well, I just got to see about get­
ting me some work,’ ” and walked across the street to 
the house of Mrs. Catherine Lopez. [R. 801-05.]

Mrs. Lopez, who was not fully dressed, heard a 
man say “hello,” thought it was her son-in-law, and 
was surprised upon looking up to see petitioner through 
the screen door. He was giggling and, when asked what 
he wanted, asked if he could cut her lawn. As he 
spoke to her, he jiggled the doorknob. Mrs. Lopez 
declined his offer, and he walked toward the corner 
house where Mrs. Eaton resided. She placed the time 
of his departure shortly before 12:27 p.m., because 
she placed a telephone call in order to check on the 
time so she would not miss the 1:00 p.m. bus. ]R. 
649-54.]

Some time prior to 1:00 p.m., petitioner returned to 
the Shinavars with a cultivator and some wire to use 
in catching the gopher, a task which he unsuccessfully 
attempted for a few minutes. Mr. Shinavar said peti­
tioner had been gone 35-40 minutes between the two 
times that Mr. Shinavar had seen him. Petitioner re­
lated that he had “scrounged” the cultivator and the 
wire “on the corner” (the residence of the Eatons, to 
whom the implement belonged) and that no one was 
home. Petitioner then left the Shinavars and walked to 
his home, where he was met by his parole officer, 
Mr. Eugene Ansell, at 1:10 p.m. [R. 806-09, 817, 
865-66, 885-86, 906-07, 1372.] That afternoon he told 
Mr. Ansell, “ ‘It seems like every time things start to 
go well for me something happens to mess it up.’ ” 
[R. 1383.]



— 15—

Later that day petitioner persuaded a friend, Willie 
Tenner, to drive him to Pasadena, in Los Angeles 
County. Petitioner, who had not had enough money 
for bus fare that morning, purchased some perfume, 
went to buy a pair of shoes, paid $5 for gas, and pur­
chased a six-pack of beer. [R. 373-74, 760-63, 925- 
33, 1405.] They then proceeded to Pasadena to the 
home of a girl known by petitioner and spent the eve­
ning with some girls, during which petitioner bought 
cigarettes and a bottle of vodka for Tenner, ciga­
rettes, soft drinks, bread, and popcorn for the mother 
of one of the girls, four phonograph records, and more 
beer. [R. 933-39, 1024-25, 1030-31.]

Petitioner tried to slip a silver ring on the finger of 
Anita Jones, but she refused it, telling him to give it 
to his girl friend Corina Franklin (who was only two 
days from giving birth). When she asked where he ob­
tained it, he said never mind where. Petitioner showed 
two rings, subsequently identified as Mrs. Eaton’s wed­
ding band and engagement ring, to Margaret Knowles 
and told her he planned to give them to Corina. He 
told her he had purchased the rings. Petitioner visited 
Corina on a date which she placed at April 26, 1965. 
He stayed at her house occasionally and kept some of 
his clothes there. He showed her Mrs. Eaton’s two 
rings. The wedding band fit her finger, but she was un­
able to remove it; the engagement ring was too 
small for her to wear. When Corina asked petitioner 
where he had obtained the rings, he at first ignored 
the question and then said he had a job as a fry cook 
in Ventura. When Gorina’s mother twice asked that 
same question, petitioner did not respond but indicat­
ed that he was singing at a night club and working 
as a fry cook. [R. 993-96, 1101-09, 1146, 1153, 1193.]



— 16

That same evening petitioner slipped Mrs. Eaton’s 
engagement ring on the finger of Belinda Pickens, tell­
ing her that he hoped he had gotten the right size. He 
declined to tell her where he had obtained it. [R. 
1021-23, 1026-29.] Thereafter petitioner, Belinda, and 
some of their friends drove into the mountains. When 
they parked, they “heard something,” and petitioner 
took a long knife from under the car seat. [R. 1034- 
36.] Later that night petitioner and Belinda spent some 
time on a blanket in a park, where she declined his of­
fer of sexual relations. [R. 1038-39.]

As petitioner and Tenner drove back to Ventura 
that night, petitioner said to him, “ ‘When I gets back 
to Ventura, the police will probably be waiting for me 
when I gets back. They will probably be settin’ on my 
doorstep when I get to Ventura.’ ” [R. 947.]

Indeed, they were. As he walked up his driveway 
at 6:00 a.m. on April 27, 1965, petitioner noted the 
presence of police officers, who had awaited him 
there since 2:30 a.m. [R. 1251-53.] Petitioner inquired, 
“ ‘You guys looking for me?’ ”, and accompanied the 
officers to Inspector King’s office, where he appeared 
very nervous, was unable to stop pacing, and expressed 
his impatience. [R. 1253-54.]

Two days later, while in custody, petitioner was in­
formed by Inspector King that Mrs. Eaton’s rings had 
been found and remarked, “ ‘Oh man, I’ve been had. 
Them damn rings.’ ” [R. 1431.] The rings, which 
Mrs. Eaton had been seen wearing the day before her 
death, had wax on them, possibly the type she was 
using on the floor, and a quantity of blood too small to 
type. [R. 1847-48, 2407-10.] Petitioner told Inspector 
King the following conflicting stories concerning Mrs.



— 17—

Eaton’s rings, which bore her initials and her hus­
band’s he had had them “ ‘for so goddamn long it’s 
been pitiful’ ”; he “ ‘bought them from some cat . . . 
down on the corner, yesterday,’ ” and that when he ob­
tained the cultivator from the Eaton residence he saw 
the rings “ ‘laying on the ground and I picked them up 
and stuck them in my pocket.’ ” [R. 1431-32, 1436, 
1444.]

In early May petitioner told an inmate in the jail, 
David Luker, that he had “killed the woman . . . but he 
didn’t rape her.” [R. 1694-95, 1698.]

A cellmate of petitioner’s, Bobby Williamson, testi­
fied to the following statements made to him by peti­
tioner in late April or early May of 1965. Petitioner said 
he knew who killed Mrs. Eaton but that it was not he; 
that he had gone to her house to borrow some tools, 
saw the rings inside the open door, and took them. 
The only person he saw on the premises was “a boy 
leaving there with bloody gloves in his pocket.” [R. 
1125, 1128-A, 1129.]

With reference to Mrs. Dodd, petitioner told William­
son that he had been approached by two male Negroes, 
one of whom was “going with” her, and that they had 
asked him “did he want some pussy.” Petitioner re­
sponded affirmatively, but when informed that they 
were referring to Mrs. Dodd, declined the offer be­
cause he “didn’t want to get in any more trouble.” 
Petitioner told Williamson that someone in a bar had 
approached him to tell him that Mrs. Dodd had been 
raped, killed, and “thrown out in an alley.” Nonethe­
less, petitioner recounted that he might as well plead 
guilty since “the district attorney’s office was going to 
railroad him anyway.” [R. 1131-33.]



- 1 8 -

In June or July of 1965, petitioner showed William­
son his sexual organ and said he would show it to the 
doctor to demonstrate that, having gonorrhea, he could 
not have raped Mrs. Eaton. Petitioner also inquired 
whether Williamson thought “if he tried to act insane, 
would it do him any good,” and Williamson said he 
“didn’t think it would with the charge he had on him.” 
[R. 1133-34.] On August 19, 1965, petitioner told 
Williamson, “if they didn’t get him out of that county 
jail, he was going to kill someone else.” [R. 1133.]

Near the end of October, 1965, petitioner told Lieu­
tenant Urias of the Ventura Police Department that one 
of his fellow inmates, Sam Waldron, had made state­
ments indicating the inmate’s involvement in the Dodd 
murder. Petitioner also told Urias, “ ‘Well, look, I’m a 
marked man. . . . And now a story about some rings. 
I’m doomed.’ ” [R. 1715, 1717, 1720-21.]

On November 8, 1965, at the jail, petitioner ap­
proached Deputy Sheriff Gary Markley and inquired 
when petitioner would get back his shoes. When told 
that they were in evidence, petitioner became excited 
and said, “ ‘Those weren’t even the shoes I was wear­
ing when I—’ he then stopped himself, and his face
went blank. [R. 1821-23.] On November 24, 1965, 
Deputy Sheriff Don Kent, who had custody over peti­
tioner during the present trial, heard petitioner make 
the following statement during the course of the testi­
mony of Mrs. McWilliams, the woman who found Mrs. 
Dodd’s body: “ ‘She is saying things that only I know.’ ” 
While Deputy Dodd was testifying with reference to the 
amount of money in the drawer at the Dodd residence, 
petitioner told Deputy Kent: “ ‘He wouldn’t know that 
unless someone told him.’ ” During the course of a re­
cess later that day, petitioner asked Deputy Kent



— 19—

on three occasions to ask Deputy Dodd who it was 
who had given him all his information. And with refer­
ence to Mrs. McWilliams and her son, who had ap­
proached Mrs. Dodd’s body armed with a gun and in 
the company of a small dog, petitioner said, “ ‘They 
were out there to kill me.’ ” [R. 1825-27.]13

C. Evidence Received at the Proceedings on the Issue 
of Penalty

1. The Murder of Clyde J. Hardaway

On the morning of June 7, 1962, Edward Danner, 
an employee of the Park Department of the City of 
Pasadena, California, discovered a body, later identi­
fied as that of Clyde J. Hardaway, a male Negro in his 
forties, in a park located near Devil’s Gate Dam. [R. 
3424, 3481-83, 3865.] Mr. Danner attempted to 
rouse the man and, realizing that he was dead, sum­
moned the police. [R. 3482, 3485.]

When the police turned the body over on its back, 
the penis was exposed through the fly of the pants. [R. 
3881, 3883, 3929.] There was blood around the face 
and skull portions of the body. [R. 3879.] Automobile 
tracks were apparent near the body as well as two 
moist spots which, the officers concluded, were where 
two persons had urinated on the ground. [R. 3871, 
3930.] An autopsy determined the cause of death to 
be hemorrhage and brain damage resulting from two 
gunshot wounds, in the left temple and the rear of the 
skull, with particles of burned gunpowder embedded 
in the area of the wounds. The fatal weapon, which 
ballistics tests showed might have been a derringer, 
was determined to have been fired in each instance

13The trial court’s findings of fact on the issue of guilt ap­
pear at R. 3372-3419.



— 20—

from less than four inches from the victim’s head. 
There was also an abrasion on the victim’s forehead 
and a contusion over one of his eyes, apparently caused 
by the assailant’s dragging the body along the ground. 
[R. 3498-3501, 3512-16, 3528, 3921-23, 4229, 4236.] 
Laboratory analysis showed 0.15 percent alcohol in the 
deceased’s blood, which would have made him a 
borderline drunk driver, and indicated the presence of 
blood and semen on the fly area of the boxer shorts 
worn by Mr. Hardaway at the time of his death. [R. 
3519, 4177.]

Petitioner was identified as Hardaway’s assailant 
through circumstantial evidence and his own state­
ments.

On the night of his death the deceased, a homo­
sexual, had been drinking heavily and had on his per­
son $100-$200. He was planning to send money to his 
daughter in Texas, although it was also his habit to 
carry large sums of money on his person. [R. 3575- 
78.] That night a friend of his saw Hardaway talk­
ing to a young male Negro in Hardaway’s automobile, 
and apparently saw Hardaway hand the person some 
money. [R. 3565-67.]

On the morning of June 8, 1962, the deceased’s ve­
hicle was found abandoned in Oxnard (a city adjacent 
to Ventura). Blood spots were observed on the out­
side of the vehicle. [R. 3854, 3857-59.]

On June 7, 1962, petitioner had purchased a used 
automobile in the City of Ventura, making a $107 
cash down payment on the $132 vehicle. [R. 416.] 
That same day he was back in Pasadena giving Corina 
Franklin a ride in his new acquisition. When she asked 
him where he had obtained it, he replied, “ ‘None of



— 21—

your business.’ ” [R. 3659-61.] That same day peti­
tioner pulled out a gun and said he was going to shoot 
a dog that had been playfully chasing them. Gorina’s 
inquiry as to where petitioner had obtained the weap­
on met with the same response. [R. 3661-62, 3673- 
74.] The vehicle was later found abandoned on a Los 
Angeles street. [R. 4091-92.]

A gun having the same appearance as the one 
viewed by Corina, a derringer with white handles, had 
been stolen from Mr. Roy Young in Ventura on June 
6, 1962, the day before Hardaway’s body was found. 
The gun, which Mr. Young kept under the head of his 
bed, was taken when someone broke the window over 
his bed and entered while Mr. Young was at work. 
The theft took place one or two days after Mr. Young 
had shown the weapon to petitioner and let him fire it. 
[R. 3661, 3968-72, 3975, 4156-57.] Petitioner had 
told a friend, “ ‘I got a little derringer.’ ” [R. 3896.] 
Petitioner’s presence in Ventura on the day of the theft 
was established. [R, 4166-68.]

On June 11, 1962, a male Negro approximating peti­
tioner’s physical description, although described as 
about 22 years of age, pawned Mr. Hardaway’s camera 
in Pasadena, signing petitioner’s name, but never re­
claimed the camera after a notification of the expira­
tion of the pawn period was sent to 1950 Mentone 
Street, Pasadena, the former address of petitioner’s half 
sister. [R. 3944-51, 4016-18, 4173, 4590, 4823.]

In June and July of 1962, petitioner volunteered to 
John Pena and Arthur Pena, in the juvenile tank of the 
Ventura County Jail, that petitioner had been picked 
up hitchhiking in Los Angeles by a “queer,” went into 
the mountains with him, pulled out his derringer, made



— 22—

him get down on his knees, and when “the guy bent 
down to blow him” shot him in the head a couple of 
times, killing him, taking his wallet, and using the 
money to buy an automobile. [R. 4024, 4026-27, 4029- 
31.] '

Sometime in 1963 or 1964, at the correctional 
Youth Training School, petitioner volunteered to an­
other inmate, Richard Carreiro, that he had shot a homo­
sexual “ ‘blood’ ” (fellow Negro) in the head and killed 
him, that it was like “playing the part of the Deacon” 
(a hired gunman, portrayed on television, who made 
his victims kneel and then shot them in the forehead). 
[R. 3547-49, 3557.) At this institution petitioner 
showed a photograph of Mr. Hardaway’s daughter, in­
scribed to Hardaway and taken from his wallet, to other 
inmates in the course of their showing each other their 
girl friends’ pictures. [R. 3889-90, 3893.]

2. Other Felonious Conduct by Petitioner: Burglaries, At­
tempted Rape, and Assault With Intent to Commit Rape

On July 6, 1961, petitioner burglarized Scritchfield 
Motors in the City of Ventura. Petitioner broke several 
windows, entered the premises, and attempted to steal 
an automobile. Petitioner managed to elude a pursuing 
police officer who fired a shot at him. [R. 4201-04, 
4243-44.]

Sometime during the summer of 1962 between 9:00 
and 10:00 one evening, petitioner removed the screen 
and opened a window in Louise Gunn’s house in the 
City of Ventura. Mrs. Gunn took her gun, “eased out” 
the back door, and observed petitioner, leveling the 
gun at him. He ran away and then proceeded to walk 
to his house, whistling. On the following day Mrs. 
Gunn spoke to petitioner and his mother about the in-



•—23-

cident, and he “said something smart” to her. Mrs. 
Gunn told them that the only reason she did not shoot 
him was that she had known petitioner’s mother for 
years, and that if he did it again petitioner would be 
killed. [R. 4094-98.] Within two weeks the gun was 
stolen from her house. [R. 4118.]

On Christmas Day of 1962, Dorothy Ann Piggee, 
then 15 years of age, met petitioner in the City of 
Pasadena. After spending some time with him and 
some friends, she accepted his offer to “walk me home 
and see that I got home safely.” On the way, 
petitioner suddenly pulled her down. When she began 
to scream, he put his hand over her mouth and told 
her to “shut up or he would kill me.” Petitioner 
then terrified her by placing a letter opener at her neck 
and tore off her underpants. In the victim’s words, “he 
tried to have an intercourse with me, but he couldn’t. 
. . . [H]e put his finger up there, and he broke my 
maidenhead,” and bloody fluid was emitted from her 
sexual organ. Petitioner was unsuccessful in achieving 
entry with his sexual organ. He told her, “ ‘How would 
you feel, not having a girl for a year.’ ” She then ran 
home, with petitioner in pursuit, and complained to her 
mother, who decided to take her to the emergency 
hospital. Petitioner then came up to her mother and 
“told her that he had did it.” [R. 4250-54, 4261, 
4264, 4281-83.] The victim was medically treated for a 
tear in her hymenal ring. [R. 4123-24, 4129.]

Emory McMurray, Jr. had petitioner assist him in 
his commercial rubbish collection business. He directed 
petitioner to pick up some refuse from Mrs. Beverly 
Metcalf, but never from Mrs. Deborah Bunnell. [R. 
4316-21.] On February 4, 1964, petitioner drove a 
truck to Mrs. Metcalf’s residence and picked up the



-2 4 -

trash. He asked Mrs. Metcalf how her husband was 
and whether they had a dog. Then he asked to use the 
bathroom. After hesitating, she gave him permission, 
and while he did so he left the bathroom door open. 
After returning to the trash receptacles outside, peti­
tioner tried to re-enter through the back door, but it 
was locked. Mrs. Metcalf then denied his request to 
enter to use the telephone. [R. 4330, 4333-36, 4338- 
40.]

Less than an hour later, petitioner appeared at Mrs. 
Bunnell’s house and asked to use the telephone, which 
she let him do. He chatted with her a few minutes, 
and then she suggested it might be time for him to re­
turn to work. Instead of going out the front door as 
she expected him to do, he sat down on a chair in the 
living room. She then repeated her suggestion, where­
upon he got up, spun her around, grabbed her across 
the chest, and placed a hand over her mouth, dragging 
her some distance. She screamed and fought him, 
liberating herself and reaching the front door, and he 
finally obeyed her command to leave. Petitioner’s shirt 
was filthy, and she found her face and shirt covered 
with black dirt. [R. 4330, 4362-71, 4378.] Her 
mouth was full of soot and dirt from petitioner’s gloves, 
[R. 4380.] Mrs. Bunnel reported the incident to the 
police as an assault with intent to commit rape. [R. 
4296-97.]

3. Psychiatric and Psychological Evidence

Three psychiatrists and one psychologist testified at 
the penalty proceedings, all having been called by the 
prosecution.

On March 20, 1957, Dr. Walter Streitel, a psy­
chiatrist, examined petitioner at Juvenile Hall in Ven­
tura. At that time, when petitioner was 11 years of



- 2 5 -

age, he had a history of “difficulties with the law.” Dr. 
Streitel “found absolutely no indication of any psychotic 
manifestations”; petitioner “fitted most adequately in 
the category of a sociopathic personality disturbance.” 
[R. 4049-52.J Dr. Streitel noted, “we haven’t seen 
much benefit from all of the efforts made to rehabili­
tate this kind of a person.” [R. 4053-54.] Petitioner’s 
commission of the Eaton and Hardaway murders was 
“entirely consistent” with the foregoing diagnosis, and 
in conjunction with the commission of the Dodd murder 
led Dr. Streitel to conclude: “It is rather unlikely that 
rehabilitation could be expected.” [R. 4056-63.]

On September 15, 1961, Dr. Stephen Howard made 
a psychological evaluation of petitioner at the Southern 
Reception Center and Clinic of the California Youth 
Authority. Dr. Howard concluded that petitioner was 
a person “of adult normal intelligence” with “strong 
underlying anger and aggression” and therefore “po­
tentially dangerous.” Dr. Howard “diagnosed him basi­
cally as an inadequate personality,” finding that his 
character disorder was “entrenched” and that “ ‘the 
prognosis is poor’ ” for change in the future. [R. 4071- 
75.]

In 1963, at the Southern Reception Center and Clinic, 
Dr. Joseph Veich, a psychiatrist, examined petitioner 
and developed a history of his mental background. 
Dr. Veich concluded that petitioner was not a “sexual 
pervert or sadist” and that petitioner had no mental 
or emotional disorders. Dr. Veich did not find him to 
be a sociopath. Petitioner was mentally normal and 
did not give much indication of remorse. [R. 3474-78.]

In April of 1964, Dr. Veich again saw petitioner at 
the same institution and found his mental condition



—26—

unchanged—mentally normal and essentially healthy. 
[R. 3478-79.]

On April 27, 1965, Dr. Donald Patterson, a psy­
chiatrist, examined petitioner at the Ventura Police 
Station. Petitioner showed no evidence of a psychotic 
reaction and was fully in contact with reality. Dr. Pat­
terson’s conclusion was “that he did not present a 
mental illness or psychosis, but that rather he pre­
sented evidence of a long-standing personality malad­
justment . . . which in my opinion qualified me to 
diagnose him as presenting a sociopathic personality 
disturbance.” [R. 4185-87, 4191-93.] Asked what 
the prospects for rehabilitation were for a man with 
petitioner’s sociopathic personality difficulties, Dr. Pat­
terson concluded, on the basis of petitioner’s “long his­
tory of difficulties of an overt nature,” “problems in 
the home situation,” “his general attitude, which is one 
of tendency to deny responsibility, . . .  the marked trend 
toward untruthfulness,” and petitioner’s tendency to 
blame the, community for not understanding him and for 
treating him unfairly, that the “prospects . . .  for help­
ing this individual are extremely limited.” [R. 4194-96. ]

4. Defense Evidence Related to Petitioner’s Background14

Petitioner’s mother testified in his behalf. She was 
59 years of age at the time of trial, was born in 
Louisiana, had little schooling, and claimed to be il­
literate. She described her first marriage, at the age of 
13, and a second marriage to a pastor, her move to 
California in 1930, her separation from her husband, 
and her move to Ventura in 1936. She had supported

, 14The defense evidence which purported to controvert pe­
titioner’s guilt of the charged offenses and certain of the col­
lateral offenses was inconsequential and is therefore not sum­
marized by respondent.



—27—

herself and her two daughters since then by doing day 
housework. [R. 4469-73.] After cohabiting with an­
other man, she met a serviceman who fathered peti­
tioner. However, Mrs. Lewis never married again, and 
shortly after petitioners birth on April 18, 1945, she 
ceased seeing petitioner’s father, who failed to con­
tinue supporting her or petitioner. A year after the 
birth of petitioner, his father ceased writing to Mrs. 
Lewis. Petitioner never saw his father thereafter. [R. 
4474-77, 4480.]

She ceased doing housework at $1 an hour when 
welfare officials told her to stay home to care for 
petitioner and gave her $80 a month for support. [R. 
4478-79.] Because she was illiterate she could not 
help petitioner with Ms school homework. [R. 4480.] 
She moved to $30-a-month federal housing, by which 
time her welfare had increased to $110, and she 
worked to bring in additional money. [R. 4481-82.]

Petitioner had trouble with the law and for about 
a year was placed in the custody of Thelma Callo­
way, a half sister who lived in Pasadena. [R. 4482-84.] 
Her testimony described this period in his life. [R. 
4579-82.] Petitioner returned to Ventura to live with 
his mother. [R. 4485-87. ] Thereafter petitioner did 
“o.k.” in school and had no trouble there. He was 
under the supervision of a probation officer at the 
time. [R. 4488-89.] Petitioner also spent about a year 
in San Diego with his other half sister at this juncture 
in his life, thereafter again returning to his mother in 
Ventura. [R. 4489-90.] Petitioner went to school, was 
arrested, and was then committed to the Los Priestos 
School. Upon his release he continued his schooling in 
Ventura until he was again picked up and committed 
to Preston School. [R. 4490-93.] Shortly after his re-



—28-

lease in 1962, petitioner and his mother visited in 
Pasadena, where he was again committed, because of 
“something about a girl.” [R. 4494-96.] Upon his re­
lease and return to his mother’s house, he got a job 
for a couple of weeks wiping cars on a used-car lot. 
He also had occasional other work, including two or 
three weeks’ work with the McMurray Trash Serv­
ice. Thereafter petitioner was again committed to the 
California Youth Authority. Upon his release he re­
turned to his mother’s house and began to seek a job. 
At that point in time petitioner was arrested on the 
charge of murdering Mrs. Eaton. [R. 4498-4500.] At 
no time in petitioner’s life “did any man act as a 
father for him.” [R. 4501.]

On cross-examination Mrs. Lewis denied the truth 
of Mrs. Gunn’s accusation that petitioner had broken 
into her house. Petitioner’s mother denied knowing 
whether petitioner’s step-sisters had sent him home to 
Ventura because he got into difficulties and they could 
not handle him. [R. 4502-03.] Mrs. Lewis also did not 
know whether petitioner had been in “serious trouble” 
prior to his eighth birthday. She had no recollection 
of a complaint from a Mrs. Kelso that petitioner had 
molested her little girl. [R. 4502-04.] Petitioner al­
legedly was committed to the Youth Authority on 
frequent occasions when he was innocent of any wrong­
doing. [R. 4511.] Mrs. Lewis did remember that peti­
tioner had once escaped from Juvenile Hall. [R. 
4512.]15

Petitioner’s half-sister from Pasadena, Mrs. Callaway, 
was a clerical supervisor, had a college education,

15Mrs. Lewis had also taken the stand at the proceedings on 
the issue of guilt, where she likewise testified to her hard-working 
schedule and cash subsidies to petitioner. [R. 2241, 2269, 2318- 
20, 2224.]



—29—

and was working toward a degree in sociology. [R. 
4604.]

The defense also called four officers of the Cali­
fornia Youth Authority, who testified that during his 
various periods of commitment petitioner appeared well- 
adjusted, obedient, agreeable, and generally coopera­
tive. Petitioner was an especially good athlete and con­
sidered the “possibility of a future in collegiate ath­
letics” since one or two colleges had made him an offer. 
[R. 4605-08, 4611-12, 4643-45, 4649-52, 4659-64.] 
However, during his confinement he was involved in 
instigating a fight, which caused a month’s postpone­
ment of his parole. [R. 4654.] And one of the Y'outh 
Authority officers conceded, with respect to petitioner’s 
various commitments, “I honestly don’t feel that there 
was a great deal of rehabilitation done with [him].” 
[R. 4675.]

5. Findings of the Trial Court in Fixing the Punishment at 
Death

The Honorable Jerome H. Berenson, Judge of the 
Ventura Superior Court, made the following findings 
as trier of fact in fixing the punishment at the con­
clusion of the proceedings on the issue of penalty:

“ [Fundamental, as I see it, is the grave responsi­
bility of the Court to weigh and to ponder the 
ultimate question, not only by a review of all of 
the past criminal record and conduct of this de­
fendant, but also from as incisive an inquiry as 
possible into his background, his personal history, 
and his personality. In addition, in my opinion, 
it is essential that the Court should probe the pos­
sibility or probability or likelihood that, when and 
if such opportunity should at some time in the



-—30-

future exist, the defendant would or might repeat 
and recommit crimes of extreme violence. And I 
must necessarily be concerned with whether or not 
there is a reasonable prospect of the rehabilitation 
of this individual.

“Earnest Aikens has since the age of eleven 
years of age, or thereabouts, been involved in 
an almost continuous pattern of anti-social and 
criminal behavior of one sort or another. He has 
graduated from petty and minor nuisances and 
offenses through more serious proceedings that 
have involved Juvenile Court wardship and a 
commitment to Los Priestos Boys’ School and to 
more recent commitments at the Preston School of 
Industry and the Youth Training School, both ad­
ministered by the California Youth Authority. In 
the instances of his parole from the Authority 
level, his periods of surcease from criminal behav­
ior have been of short duration. Now he stands 
convicted of two brutal, cold-blooded and vicious 
killings, together with the finding that I have here 
earlier made of his responsibility for a third homi­
cide. Interspersed with the foregoing have been in­
stances of assault, rape and robbery. Such record, 
at the very least, demonstrates an indifferent, ar­
rogant and obvious disregard for the dignity and 
value of human life and the rights of others.

“The question must then be asked as to what 
kind of person, now at the very threshold of his 
majority, would or could so conduct himself. Dr. 
Streitel, who examined the defendant when he 
was eleven years of age, reached the conclusion 
at that time that he then fitted into the category 
of a sociopathic personality disturbance. In re­
sponse to Mr. Deem’s hypothetical questions con-



— 31

cerning and pertaining to the facts of the Harda­
way and the Eaton incidents, the doctor stated 
that the conduct there indicated was consistent 
with the diagnosis that he had made of the de­
fendant several years before. According to this 
qualified psychiatrist a sociopath, despite the 
possibility of being a pleasant and charming per­
son, has neither regard for the truth or for re­
sponsibility. He is self-centered, with little, if any, 
concern or respect for laws or rights of others, 
and because of his inability to learn from expe­
rience, he constitutes a potential threat of violent 
criminal conduct. Dr. Streitel expressed the opin­
ion that we have not seen much benefit in the 
past from all of the efforts made to rehabilitate this 
kind of person.” [R. 4986-88.]

Judge Berenson then reviewed the opinions of Dr.
Howard and Dr. Patterson and continued,

“It has been suggested to this Court by counsel 
for the defendant in a most eloquent and moving 
plea in his behalf that Earnest Aikens should not 
be held here accountable alone for the terrible 
circumstances in which he now finds himself. Mr. 
Ashby would urge that he is but the product of an 
American tragedy, for which he is not fundamen­
tally responsible. This encompasses a cold, un­
relenting, a bleak and loveless environment, to­
gether with the frustrations of poverty and of re­
jection and, perhaps, of color-—all of this part of 
a certain social and economic disorder of the day. 
Because of his growing up in this kind of frustrat­
ed existence, the defendant, as Mr. Ashby views 
the situation, should thus be understood as to the 
reasons for his emergence as a person who is



—32—
scornful, who is outraged and who feels alone in 
society. That this young man may well have been 
deprived of some of the environmental or other 
advantages that others have enjoyed cannot, of 
course, under any circumstances be denied, but X 
have gained the conviction in my efforts here to 
seek out the truth that he has been abundantly 
provided the opportunity to obtain an education 
without expense to himself or his family; that 
he has not gone hungry or ill-clothed; that he 
has been provided the chance to learn responsibil­
ity, self-respect, personal dignity and the benefits 
that may come to one who lives within the rules of 
society on the occasions when he lived and had 
the opportunity to be with his sisters in their 
homes, each of which persons to this Court, and 
from my observation of them they have impressed 
me with their demonstrated intelligence, a stabil­
ity, a social adjustment, and an exemplary personal 
conduct; and beyond any question of doubt this 
defendant has had the constancy of a love and a 
loyalty given to him by a mother, too doting and 
protective, perhaps, at times, but who without 
education or material advantage to herself has 
sought by virtue of her own long and hard toil 
and labor to provide the defendant with a home, 
some respectability in the community, and some 
measure of economic assistance. Mrs. Liller Lewis 
is not, in my judgment, a person here to be con­
demned nor to be censured, but she is to be pitied.

“And I cannot avoid the observation that there 
are many, many persons with early backgrounds 
much worse, indeed, than that of this young man 
who have developed and lived as useful and



•33—-

law-abiding citizens within their respective com­
munities, and who by their own hard diligence, 
persistence and personal efforts have risen above 
a questionable environment to which they may 
have been exposed during their formative years. 
I cannot accept the premise that this defendant 
should be excused his conduct or that such should 
be deemed substantially mitigated in its serious­
ness because he has not had a father, or because 
his family has not been more wealthy, or for any 
of the other reasons that have here been expressed 
by his counsel.

“In my opinion, he has failed for lack of any 
apparent desire to help himself or to emulate 
those around him who have been honest, decent 
people. Nor does it appear to me, despite the op­
portunities that have been given to him for an ef­
fective rehabilitation, that he has made any real 
or conscientious effort to become so rehabilitated.

“Finally, I have without avail searched and 
sought for some indication in this defendant of 
remorse, of regret, of self-reproach for his acts, 
of any expressed repentance, or of contrition. It is 
worthy of note that although . . .  [the Youth Au­
thority officers] could speak of the social adjust­
ment made and the athletic prowess demonstrat­
ed by the defendant while institutionalized, the 
record is completely barren from their testimony 
concerning any show of words or deeds of this 
young man evidencing any of the foregoing.

“No more awesome or lonely duty, I am sure, 
can be cast upon any individual than that which 
this Court is now required to discharge. In the 
final analysis I must reach a decision consistent



■34—

with the dictates of my mind and conscience and 
heart in accordance with the laws of this state and 
my responsibility as a judge. The Court seeks to 
be merciful, but also it must be just. That I 
feel a compassion and pity for a fellow human 
being so young in years is manifest. That I must 
also be sorely concerned with the multiple and 
aggravated crimes of this defendant against the 
victims here involved and, indeed, against society 
in general, is self evident. Against the background 
of these several considerations I cannot, nor do, 
reach any other conclusion or finding than that 
the penalty to be imposed should and must be 
death.” [R. 4989-92.]

SUMMARY OF ARGUMENT.

The Fifth Amendment, ratified simultaneously with 
the Eighth Amendment in 1791, recognized in its ex­
press reference to “capital” offenses what had been im­
plied in provisions of the Constitution as originally 
drafted, that death was among the forms of punish­
ment available to the federal government. The fact 
that, in the period immediately preceding and following 
adoption of the Eighth Amendment, state and federal 
constitutional prohibitions against cruel and unusual 
punishment coexisted with state and federal enactments 
punishing a wide variety of offenses with death, is in­
dicative of the intent of the Framers to bar only those 
punishments which are both cruel and unusual either 
in their inherent form or as grossly excessive in their 
application in relation to the seriousness of a particu­
lar criminal act. A long line of decisions by this Court 
confirms this view of the Eighth Amendment.

This Court’s use of the words “evolving standards 
of decency that mark the progress of a maturing so-



— 35—

ciety,” concurrently with an express recognition of the 
continued constitutional validity of the death penalty,16 
did not sound a talismanic death knell of three hun­
dred years of capital punishment in this country. The 
deep-rooted history of capital punishment in this country 
and in our cultural and religious heritage, and the 
widespread support for the death penalty among the 
majority of our population and in most segments of 
our society, disprove the assertion that the death pen­
alty is a barbaric relic of the past. The failure of the 
almost annual efforts in the California Legislature 
to abolish the death penalty, and the concurrent 
expansion of the list of federal and state capital of­
fenses, are indicative of the continuing recognition of 
the need for the death penalty as a protection for so­
ciety.

Petitioner’s preoccupation with the judicially-arrest­
ed rate of executions, as an alleged indicator of popular 
disfavor with the death penalty, ignores the reality that 
a much more accurate barometer of the “evolving stand­
ards of decency” is the constant number of defendants 
whom juries annually send to the nation’s prison sys­
tems under sentence of death.

Most of petitioner’s arguments could more properly 
be directed to a legislative body, and respondent is 
hard pressed to comprehend how a constitutional issue 
is raised by petitioner’s claim that alternative remedies 
to capital punishment are available to the state and 
federal governments. Respondent does not view its task 
as encompassing conclusive proof of the social utility of 
capital punishment. The burden, if any, which re­
spondent must assume is only to demonstrate that there

wTrop v. Dulles, 356 U.S. 86, 99, 101 (plurality opinion 
of Warren, C.J.).



•36—

is in fact a basis upon which the California Legislature 
could reasonably conclude that certain serious offenses 
should be punishable by death.

There exist obvious flaws in the methodology of the 
theoretical studies upon which petitioner relies. On the 
other hand there are numerous graphic illustrations of 
the deterrent effect of the death penalty collected by 
respondent, as well as proof of the inadequacy of 
incapacitation by life imprisonment as protection of 
society. Thus petitioner has failed to make his case 
that no legitimate social aim can be furthered by im­
position of the death penalty.

Hard figures from the files of the California State 
Prison at San Quentin and other sources put the lie 
to the frequently voiced myth that the death penalty 
is arbitrarily and discriminatorily imposed upon racial 
minorities, the poor, the uneducated, the mentally 
deficient, and the “friendless.”

Finally, it is clear on the facts of the present case 
that death is not a cruel and unusual punishment for 
petitioner, the unrepentant perpetrator of three known 
separate murders committed for pecuniary gain 
and sexual gratification, as well as numerous other in­
stances of violent felonious conduct. The psychiatric and 
psychological evidence is unanimous in establishing 
that petitioner had no mental disorder and in dem­
onstrating that the likelihood of petitioner’s being re­
habilitated is very slight. The validity of this con­
clusion is further supported by petitioner’s repeated in­
carcerations and failures at rehabilitation, and his 
statement, while awaiting trial on the present charges, 
to a fellow inmate, that he would kill someone else if 
he was not released from custody.



—3 7 -

Respondent submits that nothing has happened in 
the 180-year history of the Constitution, or in the 300- 
year history of capital punishment in this nation, which 
can alter the fact of the Framers’ contemplation of the 
death penalty as a form of punishment of necessity 
available to the States for the protection of society in a 
case such as the one at bar.



- 3 8 -

ARGUMENT
Petitioner’s Sentence of Death and Pending Execution, 

Resulting From His Conviction of First Degree 
Murder, Do Not Comprise Cruel and Unusual 
Punishment

A. Execution Is a Form of Punishment Expressly Recognized 
by Provisions of the Constitution and Upheld as Constitu­
tional in a Long Line of Decisions by This Court

The sole question before this Court, as set forth in 
its grant of certiorari, is: “ ‘Does the imposition and 
carrying out of the death penalty in this case constitute 
cruel and unusual punishment in violation of the Eighth 
and Fourteenth Amendments?”17

Justice Black defined the nature of the task presently 
facing the Court when he noted last Term with refer­
ence to procedural attacks on the death penalty:

“The Constitution grants this Court no power to 
reverse convictions because of our personal beliefs 

, , Our responsibility is rather to determine 
whether petitioners have been denied rights ex­
pressly or impliedly guaranteed by the Federal Con­
stitution as written. . .

McGautha v. California, 402 U.S. 183, 225-26 
(Black, J., concurring). See also id., 195- 
96, 221-22.

The Constitution as originally18 written contained 
only indirect allusions to capital punishment.19

U.S......, 91 S. Ct. 2280.
18The Constitution was adopted by the Constitutional Con­

vention in 1787 and ratified by the States in 1788. Legislative 
Reference Service, Library of Congress, Constitution of the United 
States of America 28-31 (Rev. Ann. ed. 1964).

19Two of the constitutional provisions suggest that the Fram­
ers of the original Constitution contemplated capital punishment 
as an available form of punishment. Article II, Section 2, gives the 

(This footnote is continued on next page)



—39

Among the Constitution’s objectives, as set forth in the 
preamble, were to “establish justice, insure domestic 
tranquility, provide the common defense, promote the 
general welfare, and secure the blessings of liberty to 
ourselves and our posterity.” The specification of these 
objectives suggests that the Framers intended the new 
federal government to have the inherent power of all 
governments to decree whatever customary punish­
ments for criminal conduct were deemed necessary “to 
protect the lives, liberties and property of its citizens,” 
In re Kemmler, 136 U.S. 436, 449, absent particular 
prohibitions written into the Constitution.'20 Similarly 
three years later the Tenth Amendment recognized 
that powers not prohibited to the States (or delegated 
to the federal government) were reserved to the respec­
tive States or to the people.

The first ten Amendments to the Constitution were 
proposed by the First Congress and in turn ratified by 
the States in 1791. Among these the Fifth Amendment 
recognized expressly what had been implied in the afore­
mentioned provisions of the original Constitution, that 
death was among the forms of punishment, for criminal 
conduct, available to the federal government. That 
Amendment contains the mandate that “No person

President the “power to grant reprieves,” the latter term being 
defined in Black’s Law Dictionary 1466 (4th ed. 1951) as 
primarily “ [t]he withdrawing of a sentence of death for an in­
terval of time, whereby the execution is suspended,” and secon­
darily as “the withdrawing of any sentence for a period of time.” 
Article III, section 3, provides in part that “The Congress shall 
have power to declare the punishment of treason.” The common 
punishment for treason in 1787, and a common one now in 
American jurisdictions retaining capital punishment, is death. 
Bedau, The Death Penalty in America 6, 43 (rev. ed. 1967).

20Compare the absolute prohibition against bills of attainder 
and ex post facto laws and the prohibition against suspension 
of the right to habeas corpus except in limited circumstances. 
Art. I, § 9.



—40

shall be held to answer for a capital, or otherwise in­
famous crime, unless on a presentment or indictment 
of a grand jury” and further commands that no per­
son “be twice put in jeopardy of life,, without due 
process of law. (Emphasis supplied.) The same lan­
guage from the due process provision was reenacted 
and made applicable to the States in 1868 by the Four­
teenth Amendment.

It is in this context that one must evaluate the nebu­
lous21 provision of the Eighth Amendment that “Ex­
cessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted.”

One scholarly inquiry into the history of the Eighth 
Amendment casts doubt upon the precision with which 
the Amendment’s framers selected the prohibition 
against “cruel and unusual punishments.” Granucci, 
“Nor Cruel and Unusual Punishments Inflicted:” The 
Original Meaning, 57 Calif. L. Rev. 839, 840-41 (n. 
8) (1969).22 The commentator, quoting from the

21Chief Justice Warren’s opinion in Trop v. Dulles, 356 U.S. 
86, 100(n.32), stated: “Whether the word ‘unusual’ has any 
qualitative meaning different from ‘cruel’ is not clear. On the 
few occasions this Court has had to consider the meaning of the 
phrase, precise distinctions between cruelty and unusualness do 
not seem to have been drawn.” Commentators have remarked of 
the Amendment that “many important points concerning its mean­
ing, scope and application are still in doubt.” Note, The Effec­
tiveness of the Eighth Amendment: An Appraisal of Cruel and 
Unusual Punishment, 36 N.Y.U. L. Rev. 846 (1961).

22“The history of the writing of the first American bills of 
rights and constitutions simply does not bear out the presup­
position that the process was a diligent or systematic one. Those 
documents, which we uncritically exalt, were imitative, deficient, 
and irrationally selective. In the glorious act of framing a social 
compact expressive of the supreme law, Americans tended simply 
to draw up a random catalogue of rights that seemed to satisfy 
their urge for a statement of first principles—or for some of 
them. That task was executed in a disordered fashion that verged 
on ineptness. The inclusion or exclusion of any particular right 
neither proved nor disproved its existence in a state’s colonial 
history.” Ibid.



—41

meager debate that attended the insertion of this phrase 
into Virginia’s constitution of 1776 (which was fol­
lowed by the phrase’s appearance in the constitutions 
of several other States and the federal Northwest Or­
dinance of 1787), the debates of the various state con­
ventions called to ratify the federal Constitution, and 
the brief discussion of the proposed Eighth Amendment 
in the First Congress,23 concludes that “the cruel and 
unusual punishments clause was directed at prohibiting 
certain methods of punishment.” (Emphasis sup­
plied.) Id., 840-42.

The wording of the clause was a verbatim copy of 
a prohibition in the English Bill of Rights of 1689. 
Id., 840. The commentator makes a convincing showing 
that the English antecedent of the Eighth Amendment 
was “first, an objection to the imposition of punish­
ments which were unauthorized by statutes and out­
side the jurisdiction of the sentencing court, and 
second, a reiteration of the English policy against dis­
proportionate penalties,” and that the framers of the 
state constitutions and the American Bill of Rights in­
advertently misinterpreted the language of the English 
clause as a prohibition against the torturous punish­
ments of seventeenth century England.24 Id., 860.

Whether those responsible for the enactment of the 
Eighth Amendment were directing their concern against

23This discussion, and portions of the debates of the state con­
ventions. are set forth in Weems v. United States, 217 U.S. 349, 
368-69,'372.

24At that time the traditional English penalty for women felons 
was to be burned alive, which penalty might be commuted to be­
heading. Id., 853. The penalty for treason “consisted of draw­
ing the condemned man on a cart to the gallows, where he was 
hanged by the neck, cut down while still alive, disembowelled 
and his bowels burnt before him, and then beheaded and quar­
tered.” Id., 854.



•—42—

torturous methods of punishment or instead against un­
authorized or disproportionate punishment, the penal 
history of England (illustrated in the preceding foot­
note) as well as contemporary colonial penal experience 
indicate that the Eighth Amendment was not intended 
to prohibit the government at that time or any future 
time from providing death as a penalty for serious of­
fenses.

As Justice Black noted in his concurring opinion in 
McGautha v. California, 402 U.S. 183, the Eighth 
Amendment’s “words cannot be read to outlaw capital 
punishment because that penalty was in common use 
and authorized by law here and in the countries from 
which our ancestors came at the time the Amendment 
was adopted. It is inconceivable . . . that the framers 
intended to end capital punishment by the Amend­
ment.” Id., 226.

The experience of Massachusetts is a graphic illus­
tration of the fact that those who adopted the consti­
tutional prohibition against cruel and unusual punish­
ment had absolutely no intent thereby to abolish the 
death penalty for all offenses. The Constitution of the 
Commonwealth of Massachusetts, approved by the 
people in 1780, declared that “no magistrate or court 
of law, shall . . . inflict cruel or unusual punishments.” 
Within four years the Commonwealth saw fit “to place 
upon the statute books of the new government seven 
laws that called for the penalty of death that seemed 
to the General Court, at the end of the eighteenth 
century and at the beginning of the nineteenth century, 
to constitute the most serious threats to the peace and 
welfare of the state.” Powers, Crime and Punishment 
in Early Massachusetts 308-09, 608-09 (1966). These 
seven capital offenses, which represented a reduction



—43

from fourteen capital offenses in effect in the immedi­
ately preceding period,25 comprised wilful murder, 
treason, sodomy, rape, arson, robbery, and burglary. 
id., 309.

The following chronology as well clearly refutes the 
theory that those who enacted the Eighth Amendment 
intended thereby to abolish capital punishment. The 
Amendment passed the First Congress on September 
25, 1789. That same Congress, a mere seven months 
later, enacted An Act for the Punishment of Certain 
Crimes Against the United States, which statute made 
the following offenses punishable by death by hanging: 
treason, murder within federal territory, piracy, and 
counterfeiting of public securities. Act of April 30, 
1790, ch. 9, §§ 1, 3, 8, 14, 33, 1 Stat. 112. The 
Eighth Amendment was ratified by the States on De­
cember 15, 1791, and less than four months later, on 
April 2, 1792, the Second Congress made it a capital 
offense to debase coins of the United States Mint. 
Act of April 2, 1792, ch. 16, § 19, 1 Stat. 246.2e

The subsequent history of the Eighth Amendment, 
as it has been interpreted by this Court in the 180 years 
of the provision’s existence, likewise lends no support

25During the period 1630 to 1692 the Bay Colony had twenty- 
five capital laws, although persons were executed only for viola­
tion of nine of them: murder, treason, beastiality, adultery, rape, 
arson, witchcraft, defiance by Quakers, and piracy. Id., 287.

26“The constitutions of 48 states contain some provision 
against excessive punishment; wording of the prohibitions varies 
from ‘cruel and unusual’ to ‘cruel or unusual’ or simply ‘cruel,’ 
while a few state constitutions provide that penalties shall be 
proportioned to the nature or character of the offense. Connec­
ticut and Vermont have no constitutional prohibition, but Conn. 
Gen. Stat. Ann. § 53-20 (1960) makes cruel or unlawful punish­
ment a crime. With respect to the law of Vermont, see Vt. Stat. 
Ann. tit. 1, § 271 (1959), incorporating into local law the com-

(This footnote is continued on next page)



44

for petitioner’s claim that the death penalty is unconsti­
tutional when carried out without unnecessary cruelty 
as punishment for a serious offense such as murder.

Former Justice Goldberg of this Court has noted 
with reference to this Court’s treatment of the Eighth 
Amendment’s prohibition against cruel and unusual 
punishment:

“Indeed, the clause has been substantially dis­
cussed—either by members of the majority or the 
dissent on the Court—on only ten occasions. Only 
three decisions since the adoption of the Bill of 
Rights have interfered with a government’s choice 
of punishments, and in only one of those were 
five Justices willing to invoke the clause. . . .” 
(Footnotes omitted.) Goldberg & Dershowitz, 
Declaring the Death Penalty Unconstitutional, 83 
Harv. L. Rev. 1773, 1777-78 (1970).

It was not until 1878 that this Court, in Wilkerson 
v. Utah, 99 U.S. 130, had occasion to discuss at any 
length the meaning of the constitutional prohibition 
against cruel and unusual punishment. In that case the 
Court upheld the mode of execution (shooting) as not 
forbidden by the Constitution’s prohibition against 
cruel and unusual punishment, id., 134-35, noting the

mon law of England, which in turn prohibits cruel and unusual 
punishment. . . . See also Vt. Const, ch. 1, art. 18, which im­
pliedly restrains the legislature and courts in this regard.” Note, 
The Effectiveness of the Eighth Amendment: An Appraisal of 
Cruel and Unusual Punishment, 36 N.Y.U. L. Rev. 846, 847 
(n.7) (1961). See also Legislative Drafting Research Fund, 
Columbia University, Index Digest of State Constitutions 343 
(2d ed. 1959) and 1958-1964 Supp. at 71. California’s provi­
sion states, “nor shall cruel or unusual punishments be inflicted.” 
Cal. Const, art. I, § 6. Concurrently 41 States today retain the 
death penalty. U.S. Bureau of Prisons, National Prisoner Statis­
tics Bulletin: Capital Punishment 1930-1968 (August, 1969) 
at 30 (table 15).



45-

“difficulty” in defining “the extent of the constitutional 
provision” but the applicability of the provision to 
“punishments of torture . . . and all others [involving] 
unnecessary cruelty.” Id., 136.

In 1890, the Court denied an application for writ of 
habeas corpus sought on an allegation that death by 
electrocution constituted a cruel and unusual punish­
ment. In re Kemmler, 136 U.S. 436. The Court denied 
the application on the ground that the Eighth Amend­
ment did not apply to state legislation, but added the 
comment:

“Punishments are cruel when they involve torture 
or a lingering death; but the punishment of death 
is not cruel, within the meaning of that word as 
used in the Constitution. It implies there something 
inhuman and barbarous, something more than 
the mere extinguishment of life.,, (Emphasis sup­
plied.) Id., 447.

In Weems v. United States, 217 U.S. 349, the Court, 
in 1910, for the first time overturned a punishment as 
cruel and unusual. In that case the defendant, upon 
conviction of falsifying an official document, had been 
sentenced to fifteen years of hard and painful labor 
to be served in wrist and ankle chains, with attendant 
life-long disabilities and a severe fine. Id., 358, 364-65. 
The case arose under the Philippine Bill of Rights, 
whose prohibition against the “infliction of cruel and 
unusual punishment, was taken from the Constitution 
of the United States and must have the same mean­
ing.” Id., 367.

The Court was not troubled by the circumstance that 
the punishment was somewhat novel in the context of 
the type of punishment to which the cruel and unusual



—46

punishment clause was thought to apply, noting that 
the clause, like all principles, “to be vital must be 
capable of wider application than the mischief which 
gave it birth.” Id., 373.

Quoting Cooley’s Constitutional Limitations, the 
Court stated that it was probable that “ ‘any punish­
ment declared by statute for an offense which was 
punishable the same way at common law could not be 
regarded as cruel or unusual, in a constitutional sense.’ ” 
Id., 375.

In setting aside the punishment, the Court in 
Weems noted that “ [t]here are degrees of homicide 
that are not punished so severely,” id., 380, and that 
the statute in question had no parallel in American 
legislation and came from a government of different 
origins. Id., 377. The Court found the statute “cruel in 
its excess of imprisonment and that which accompanies 
and follows imprisonment. It is unusual in its char­
acter. Its punishments come under the condemnation 
of the bill of rights, both on account of their degree 
and kind.” Ibid.

The 1947 case of Francis v. Resweber, 329 U.S. 
459, presented the issue whether a pending second elec­
trocution of a condemned murderer, following an un­
successful first attempt at execution, constituted cruel 
and unusual punishment. The Court rejected the claim 
of unconstitutional punishment. In an opinion joined 
by three other members of the Court, Justice Reed in 
announcing the judgment of the Court discussed the 
issue “under the assumption, but without so deciding,” 
that a violation of the Eighth Amendment would be 
violative of the Fourteenth Amendment’s due process 
clause. Id., 462. The opinion concluded:



—47

“We find nothing in what took place here which 
amounts to cruel and unusual punishment in th 
constitutional sense. . . . The traditional humanity 
of modern Anglo-American law forbids the in­
fliction of unnecessary pain in the execution of the 
death sentence. Prohibition against the wanton 
infliction of pain has come into our law from the 
Bill of Rights of 1688. The identical words appear 
in our Eighth Amendment. The Fourteenth would 
prohibit by its due process clause execution by a 
state in a cruel manner. . . .
“. . . The cruelty against which the Constitution 
protects a convicted man is cruelty inherent in the 
method of punishment, not the necessary suffer­
ing involved in any method employed to extinguish 
life humanely. . . .” (Emphasis supplied.) Id... 
463-64.

The next occasion on which this Court examined 
the scope of the Eighth Amendment’s prohibition 
against cruel and unusual punishment was in 1958, 
in the case of Trop v. Dulles, 356 U.S. 86, where Chief 
Justice Warren, joined by three other members of the 
Court, concluded that denationalization of a native- 
born citizen for less than one day’s desertion from 
military duty constituted unconstitutional punishment. 
Justice Brennan found the enactment of such punish­
ment beyond the power of Congress to legislate, and 
four justices rejected both of these theories and would 
have upheld the statute upon which denationalization 
was premised.

Chief Justice Warren’s opinion noted initially, “Since 
wartime desertion is punishable by death, there can 
be no argument that the penalty of denationalization 
is excessive in relation to the gravity of the crime.”



— 48—

Id., 99. Cf. Williams v. Oklahoma, 358 U.S. 576, 
586-87.

While recognizing that the phrase cruel and unusual 
punishment was not precise, the opinion clarified the 
scope of the constitutional prohibition against such 
punishment by stating, “Fines, imprisonment and even 
execution may be imposed depending upon the enor­
mity of the crime, but any technique outside the 
bounds of these traditional penalties is constitutionally 
suspect.” (Emphasis supplied.) Trap v. Dulles, supra 
at 100. Thus the penalty in Weems was characterized 
as meeting the two-prong test of being “cruel in its 
excessiveness and unusual in its character,” id., as was 
the penalty in the case then before the Court. Stating 
that the Eighth Amendment “must draw its meaning 
from the evolving standards of decency that mark the 
progress of a maturing society,” Chief Justice Warren 
concluded that denationalization, under the circum­
stances before the Court, constituted “a form of punish­
ment more primitive than torture.” Id., 101.

Significantly, Chief Justice Warren’s opinion stated: 
“At the outset, let us put to one side the death 

penalty as an index of the constitutional limit on 
punishment. Whatever the arguments may be 
against capital punishment, both on moral 
grounds and in terms of accomplishing the pur­
poses of punishment—and they are forceful—the 
death penalty has been employed throughout our 
history, and, in a day when it is still widely ac­
cepted, it cannot be said to violate the constitu­
tional concept of cruelty. . . .” Id., 99.

Thus the opinion, while recognizing “forceful” legis­
lative arguments against the death penalty, rejected the



—49—

constitutional argument against that form of punish­
ment.

Any doubt whether the Eighth Amendment’s ban on 
cruel and unusual punishment applies to the States, 
through the operation of the Fourteenth Amendment, 
was dispelled in 1962 by the decision in Robinson v. 
California, 370 U.S. 660, invalidating punishment of 
imprisonment imposed on the defendant by reason 
of his being found to be addicted to narcotics.

The Court’s opinion focused not on the nature of 
the punishment (ninety days in county jail), but on its 
inappropriateness as applied to a status, that of being a 
narcotic addict. Id., 667.27

In 1968 this Court refused to extend its ruling in 
Robinson to the punishment (by fine of $50) of a de­
fendant convicted of the crime of being intoxicated in 
a public place, Powell v. Texas, 392 U.S. 514, the 
plurality opinion of the Court distinguishing the punish­
ing of status, involved in Robinson, from the punishing 
of the uncompelled act before the Court in Powell. 
Id., 532-33.

If the decisions of this Court applying the cruel and 
unusual punishment clause are susceptible of synthesiza- 
tion into a consistent body of principles, the cases ap-

27“To be sure, imprisonment for ninety days is not, in the 
abstract, a punishment which is either cruel or unusual. But 
the question cannot be answered in the abstract. Even one day 
in prison would be a cruel and unusual punishment for the 
‘crime’ of having a common cold.” (Emphasis supplied.) Id. 
“A punishment out of all proportion to the offense may bring it 
within the ban against ‘cruel and unusual punishments.’ . . . 
[T]he principle that would deny power to exact capital punish­
ment for a petty crime would also deny power to punish a per­
son by fine or imprisonment for being sick.” (Emphasis sup­
plied.) Id., 676 (Douglas, J., concurring). “Cruel and unusual 
punishment results not from confinement, but from convicting 
the addict of a crime.” Ibid.



-5 0 -

pear to stand for the following propositions. Punish­
ment will be held unconstitutional if it is both cruel 
and unusual either as (1) a punishment inherently 
cruel and inherently unusual in its form, or (2) a pun­
ishment not inherently cruel and unusual but grossly 
excessive as applied (a) in relation to the seriousness 
of a particular criminal act or (b) to any status which 
does not involve an uncompelled act.

Imposition of the death penalty for wilful homicide, 
in the present case first degree murder, clearly passes 
muster under the foregoing principles. Execution by 
means (such as the administration of lethal gas, here 
involved) which do not cause unnecessary pain or suf­
fering is not an inherently cruel and unusual form of 
punishment.28

The method by which the punishment of death is 
effected in California is commonly recognized as more 
humane than the methods in use at the time the 
Eighth Amendment was adopted and appears to be 
frequently less cruel and painful than the death by 
natural causes that comes eventually to us all.29 And 
the common use of the death penalty in this country, 
from the seventeenth century to the present, as indicat­
ed previously herein and at greater length in the pages 
that follow, renders the supreme penalty anything but 
“unusual.”

Assuming then the validity of the death penalty as a 
form of punishment not intrinsically cruel and unusual

28Francis v. Resweber, 329 U.S. 459, 463-64 (second at­
tempt at electrocution); In re Kemmler, 136 U.S. 436, 447-49 
(electrocution); Wilkerson v. Utah, 99 U.S. 130, 134-35 (shoot­
ing); In re Anderson, 69 Cal. 2d 613, 629-32 [447 P,2d 117, 
128-30] (1968) (lethal gas).

wSee People v. Daugherty, 40 Cal. 2d 876, 894-96 [256 
P.2d 911, 922-23] (1953), cert, denied, 346 U.S. 827.



-51-

in its form, a remaining question is whether the penalty 
is unconstitutional under the foregoing principles as 
excessive in its application to first degree murderers, 
such as petitioner. The negative answer to this ques­
tion need not be belabored since petitioner’s offenses 
indisputably involved overt criminal conduct rather than 
status, and since, as petitioner concedes, if the death 
penalty may constitutionally be imposed for any civil­
ian, peacetime crime, it can properly be imposed upon 
petitioner for first degree murder. (Pet. Br. p. 5.)

B. Capital Punishment Is Widely Accepted and Used in Ameri­
can Society and Comports With Contemporary “Standards 
of Decency”

Despite the relatively precise showing required by 
this Court, under the principles previously discussed, 
as justification for overturning an imposed punishment 
as cruel and unusual, something this Court has done in 
only three extreme situations in its history,30 petitioner 
and amici have seized upon some of the language of the 
plurality opinion in Trop v. Dulles, 356 U.S. 86, as 
proof that that decision signaled the end of the right 
of the people of the various States to prescribe death 
as the punishment for first degree murder.

Almost ignoring the fact that the opinion in ques­
tion went out: of its way to recognize the continued 
constitutional validity of the death penalty, id., 99, 
petitioner prophesizes that the use of the words “evolv­
ing standards of decency that mark the progress of a

30Robinson v. California, 370 U.S. 660 (punishing of status 
as narcotic addict); Trop v. Dulles, 356 U.S. 86 (punishment of 
denationalization, opinion of four members of the Court); and 
Weems v. United States, 217 U.S. 349 (punishment blatantly 
cruel and unusual both in the severity of its form and in its 
excessiveness in relation to the particular offense).



•52-

maturing society,” id., 101, sounded a talismanic death 
knell of three hundred years of capital punishment in 
this country. However, in all fairness to petitioner, his 
fixation with this phrase is understandable in view of 
its providing the only arguable escape from the his­
torical reality of capital punishment’s recognition as a 
legitimate penalty, outside the scope of cruel and un­
usual punishment, in the wording of the Constitution 
and in the law that preceded and followed adoption 
of that document and the Bill of Rights.

In his attempt “to avoid the impact of this his­
tory,”31 petitioner has failed to demonstrate that any­
thing that has transpired in the last thirteen years has 
impugned the validity of the observation, in 1958, that 
the death penalty “in a day when it is still widely ac­
cepted . . . cannot be said to violate the constitutional 
concept of cruelty.” Trop v. Dulles, 356 U.S. 86, 99 
(plurality opinion of Warren, C.J.).

The history of capital punishment in this country, 
and the deep-rooted origins of that form of punishment 
in the religious and moral heritage of contemporary 
Americans, provide clear indications that the death 
penalty is no barbaric relic of the past.

The history of the death penalty is as old as the his­
tory of man himself. Records of death as a punishment 
ordered by the state go back to ancient China, As­
syria and early Egypt (as far back as 1500 B.C.), and 
the Greeks. The first record of capital punishment in 
England is from 450 B.C. Laurence, A History of 
Capital Punishment 1-2 (1932).

The reliance of some of amici on biblical references 
and religious principles, in support of their assertion

slMcGautha v. California, 402 U.S. 183, 203.



—53
that the death penalty is immoral and unjustified, is 
particularly inappropriate in light of the Old Testa­
ment’s repeated recognition of the death penalty as a 
proper form of punishment. These references indicate a 
clear distinction between the sin of an individual’s tak­
ing life and the right of the State to take the life of a 
murderer for the protection of society. Thus the Sixth 
Commandment, “Thou shalt not kill” (Holy Bible, Au­
thorized King James Version, Exodus 20:13), is preced­
ed by the admonition, “Whoso sheddeth man’s blood, 
by man shall his blood be shed” {id., Genesis 9:6), 
and followed by numerous other references justifying 
the death penalty for murder,32 including the decree, 
“He that smiteth a man, so that he die, shall be surely 
put to death.” (Id., Exodus 21:12.) The New Testa­
ment as well contains references to the death penalty 
for murder.33

With reference to the Church’s attitude toward the 
death penalty during the Middle Ages, a religious 
scholar has written in a Catholic periodical published 
in Los Angeles:

“ [Individual Popes, theologians and councils of 
the Church have explicitly approved of it at dif­
ferent periods of history.

U

“Pope Innocent the Third (1198-1216 A.D.) 
. . . reiterated this right. ‘The secular power can 
inflict the death penalty,’ the Pope remarked, ‘with­
out grievous sin.’ (Denzinger, Enchridion No. 
425).

■ 32/c/., Leviticus 24:17, 21; Numbers 35:16-18, 30-31; Deuter­
onomy 19:11-12.

8SId., St. Matthew 5:21-22, 26:52; St. John 19:10-11; Acts 
25:11; Romans 13:1-4; Revelation 13:10.



—54—

“And the Catechism of the Council of Trent 
observes that the state in executing this right is 
‘not only not guilty of murder, but eminently fol­
lows the law (the Fifth Commandment) which 
prohibits murder.’ (Catechism of the Council of 
Trent, Part 3, Chap. 6, Q. 4).” The Tidings (Feb­
ruary 13, 1959), p. 9.

The writings of other religious authorities confirm the 
fact that capital punishment is consistent with our 
Christian heritage. In the fifth century St. Augustine 
wrote “of the cases in which we may put men to death 
without incurring the guilt of murder.” St. Augustine, 
City of God 27 [Book I, ch. 21] (Mod. Library ed. 
1950). In the thirteenth century St. Thomas Aquinas 
wrote of the justification for the death penalty as a 
form of punishment. 2 Basic Writings of Sf. Thomas 
Aquinas 712 [Q. 87, Art. 3], 843-44 [Q. 100, Art. 
8] (Pegis ed. 1945). Reference to philosophers (Pla­
to, Pascal, Locke, Kant, Montesquieu, Rousseau), who 
over the centuries have written in support of the 
death penalty, are quoted in Allen, Capital Punish­
ment: A Matter of Human and Divine Justice, The 
Police Chief, vol. 27 (March, 1960) at 1.

Despite the position that the foregoing religious and 
philosophical authorities occupied in the heritage of 
the Framers of the Constitution, and the bearing that 
they continue to have on our present-day beliefs and 
practices, petitioner implies that it is only police of­
ficers and prosecutors, presumably vengeful and out of 
step with “the evolving standards of decency that mark 
the progress of a maturing society,”34 who are in favor 
of the death penalty today. (Pet. Br. 43.)

SiTrop v. Dulles, 356 U.S. 86, 101.



—55—
There are innumerable indicia of the general public’s 

continued acceptance of the death penalty as a neces­
sary form of punishment consistent with contemporary 
religious and moral standards of decency and the dig­
nity of man.

Respondent wishes to emphasize its position that the 
meaning of the cruel and unusual punishment clause 
cannot expand and contract with the ebb and flow 
of something as fickle as public opinion as reflected in 
polls and surveys. Nevertheless since opponents of the 
death penalty have relied on such indicators in sup­
port of their contention that the death penalty is out of 
favor with all but the police, prosecutors, and a few 
misguided others, respondent feels compelled to put the 
lie to this contention. Public sentiment has swung 
strongly in favor of the death penalty since this Court, 
citing a 1966 Gallup Poll, characterized the United 
States as a “nation less than half of whose people be­
lieve in the death penalty.” Witherspoon v. Illinois, 
391 U.S. 510, 520. The most recent Gallup Poll and 
California Poll indicate the following attitudes of the 
public.



—56—

TABLE A

Public Opinion Polls on the Death Penalty 
California36

Retain
Captital

Punishment

Abolish
Captital

Punishment
Qualified or 
No Opinion

1971 (August) 58% 34% 8%
1969 65% 26% 9%
1966 54% 30% 16%
1965 51% 39% 10%
1960 55% 35% 10%

United States36
1969 51% 40% 9%
1966 42% 47% 11%
1965 45% 43% 12%
1960 51% 36% 13%

The most recent large-scale expression of public opin­
ion, of which respondent is aware, occurred on Decem-

85The 1960-1969 figures are taken from Field Research Cor­
poration, The California Poll (Release No. 635, May 22, 1969). 
The question posed to a “representative sample of Californians, 
numbering 1,011, in a survey taken early this month was the 
same one which has been asked of other representative samples 
over the years: ‘As you know, this state has capital punishment— 
that is, execution— as a form of punishment for criminals. How 
do you personally feel about capital punishment—would you be 
in favor of doing away with the death sentence, or do you feel 
that the death sentence should be kept as a punishment for 
serious crimes, as it is now?’ ” Ibid. These figures are also re­
produced in Erskine, The Polls: Capital Punishment, 34 Pub. 
Op. Q. 290, 295 (1970). The 1971 results, based on a sampling 
of the opinion of 508 persons, are taken from Field Research 
Corporation, The California Poll (Release No. 726, September 
14, 1971).

88Gallup International Inc., Gallup Opinion Index 15-16 (Re­
port No. 45, March, 1969). The question posed to “a minimum 
of 1,500 adults” approximately “2 or 3 weeks prior to publica­
tion,” was “are you in favor of the death penalty for persons 
convicted of murder?” Ibid. The results of this poll are reproduced 
in Erskine, The Polls: Capital Punishment, 34 Pub. Op. Q. 290, 
291-94 (1970).



—57—

ber 15, 1970, when the voters of the State of Illinois, 
in conjunction with a vote on whether to ratify the new 
constitution adopted by their constitutional convention, 
were asked to ballot as to whether the death penalty 
should be abolished in that jurisdiction. The following 
referendum results with respect to the latter question 
are probably a good indication of national sentiment 
in view of Illinois’ position as a large State having sub­
stantial metropolitan and rural populations.

TABLE B

December 1970 Illinois Referendum on Whether
to Abolish the Death Penalty37

Votes Percentag

Yes 676,302 35.7%
No 1,218,791 64.3%
Total 1,895,093 100%

The large majority of persons convinced of the need 
for capital punishment in America in recent years re­
flects a cross-section of the nation’s population.38 At 
the height of the unsuccessful campaign to abolish the 
death penalty in California, in the late 1950’s and 
early 1960’s, a Committee to Oppose Abolition of Cap­
ital Punishment was formed “to include in our numbers 
the vast majority of citizens who feel the abolition of 
the death penalty cannot serve the better interests of 
the California community.”33 Undoubtedly retail 
clerks, grocery and liquor store operators, pharmacists, 
bank tellers, gas station attendants, and others who like

37Illinois Secretary of State, Constitution of the State of Illi­
nois and United States 13, 15 (1971).

38This proposition is supported by the reported breakdown 
of the figures produced in the national poll cited in n. 36, infra.

39Los Angeles Times, Part I, p. 8 (Feb. 14, 1959).



■58-

police officers have frequent occasion to look down 
the “business end” of a robber’s pistol or shotgun, 
do not share petitioner’s sentiment that the death pen­
alty is a barbaric relic of the past. And a recent meeting 
of the International Federation of Airline Pilots’ Asso­
ciations in London demanded the death penalty for 
airplane hijackers.40

Even the religious community is divided on the issue 
of capital punishment. At least two ministers have gone 
before California legislative committees to testify in 
favor of the death penalty, one of them a former 
chaplain at California’s Folsom Prison,41 and the 1967 
biennial governing convention of the 2.8-million-member 
Lutheran Church Missouri Synod adopted a resolution 
stating, “ ‘Capital punishment is in accord with the 
Holy Scriptures and the Lutheran confessions.’ ”42 The 
Associate Executive of the United Presbyterian Church 
in the United States has written in favor of capital 
punishment,43 as have representatives of the Catholic

MId., Part I, p. 20 (Dec. 18, 1969).
41 Id., Part I, p. 1 (Aug. 10, 1963); Id., Part I, p. 5 (June 

3, 1963). Representatives of the Protestant, Catholic, and Jewish 
faiths testified in favor of the death penalty in Florida. Florida 
Special Comm’n for the Study of Abolition of Death Penalty in 
Capital Cases, Report 31 (1965).

43Los Angeles Times, Part III, p. 8 (July 15, 1967).
43Vellenga, Christianity and the Death Penalty, in Bedau, The 

Death Penalty in America (rev. ed. 1967) 123, 129, reprinted 
from Is Capital Punishment Wrong?, Christianity Today, vol. 
IV, no. 1 (October 12, 1959), at 7-9: “No one can deny that 
the execution of a murder is a horrible spectacle. But we 
must not forget that murder is more horrible. . . . The law of 
capital punishment must stand as a silent but powerful witness 
to the sacredness of God-given life. Words are not enough to 
show that life is sacred. Active justice must be administered 
when the sacredness of life is violated.”



—5 9 -

Church44 and noted contemporary scholars and phi­
losophers.46

The death penalty is also favored by those who have 
the most extensive contact with the criminal element, 
law enforcement46 and correctional officers.47 Signifi­
cantly, on September 14, 1971, the Conference of Dele­
gates of the State Bar of California voted to support 
the retention of capital punishment, reversing its 
stand of two years earlier.48

In short, contrary to the impression that peti­
tioner seeks to convey, there appears to be substantial 
support for the death penalty in almost all social, eco-

44E.g., Father John V. Sheridan in The Tidings, supra at 
9 (February 13, 1959).

*6E.g., Jacques Barzun, Dean of Faculties and Provost of 
Columbia University, in Barzun, In Favor of Capital Punish­
ment, in Bedau, The Death Penalty in America (rev. ed. 1967) 
154, reprinted from The American Scholar, vol. 31, no. 2 (Spring 
1962), at 181-91; and Sidney Hook, Professor of Philosophy 
and Chairman of the Graduate Philosophy Department at New 
York University, in Hook, The Death Sentence, id., at 146, re­
printed from The New Leader, vol. 44 (April 3, 1961) at 
18-20.

i6E.g., J. Edgar Hoover, Statements in Favor of the Death 
Penalty, id., 130, reprinted from law enforcement publications; 
and the Chief of Police of Santa Ana, California, writing in 
Allen, Capital Punishment: Your Protection and Mine, id., at 
135, reprinted from The Police Chief, vol. 27 (June, I960) at 
22, the official publication of the International Association of 
Chiefs of Police; Allen, Capital Punishment: A Matter of Human 
and Divine Justice, The Police Chief, vol. 27 (March, 1960) 
at 1. Associations of peace officers and district attorneys again 
opposed abolition of the death penalty before the California 
Legislature this year. Los Angeles Times, Part I, pp. 3 24 
(June 23, 1971).

41E.g., The Prison Officers Assn, of Great Britain has de­
manded the return of the death penalty, stating that “since aboli­
tion of capital punishment . . ., ‘There is nothing to deter the 
growing number of long-term criminals from killing prison officers 
in an attempt to escape.’ ” Los Angeles Times, Part I, P 21 
(Nov. 16, 1966).

48Los Angeles Times, Part I, p. 1 (September 15, 1971).



— 60—

nomic, and occupational groups, and indeed the pre­
ponderance of public opinion is in favor of retaining 
the death penalty as one of the alternative forms of 
punishment available for serious offenses.

Thus it is highly misleading for amicus curiae the 
American Civil Liberties Union to quote from only 
selected portions of the transcript of a trial (in which 
one of counsel for such amicus appeared as counsel 
of record), without reference to any of the contrary 
testimony, in an effort to convey the impression that 
the evidence at such proceedings establishes the un- 
constitutionality of the death penalty. That evidence, 
which was never before the state courts at trial or on 
appeal in the present case, is extensively referred to 
throughout the brief of amicus.49

Thus while respondent deems it inappropriate to 
argue the evidence presented in that collateral proceed­
ing,50 the following information is conveyed in order 
to correct the misimpression created by amicus. In 
addition to the ten defense witnesses who appeared be­
fore the trial court at the hearing to determine the 
constitutionality of the death penalty, fifteen prosecu­
tion witnesses appeared and testified in support of 
capital punishment. These supporters of capital punish­
ment included a Presbyterian minister (who as a former 
correctional officer at San Quentin had witnessed 
executions and been on duty on Death Row), a

49 At pp. 8-9, 14, 15(n.l0), 17-18(n.27), 19(n.28), 20 
(n.34), 21-22(nn.35, 36), 24-28, 29(n.46), 31, 35-37, 44(n. 
61) and the entire Appendix A to said brief (pp. la  through 
58a).

50People v. Thornton, Los Angeles Superior Court No, 328- 
445, presently pending before the California Supreme Court.



- 6 1 -

Catholic priest, a psychiatrist, an eminent professor of 
law, a defense attorney formerly against the death 
penalty who previously as a deputy district attorney 
had prosecuted a robber who had moved his operations 
to a non-death-penalty State because of fear of that 
punishment, a state senator, a state assemblyman, two 
chiefs of police, a chief of detectives, a former deputy 
sheriff who heard two criminal suspects tell a news 
reporter that fear of the death penalty had kept them 
from killing the arresting officers, an undercover officer 
who overheard a criminal (unaware of the officer’s 
identity) advise a cohort not to murder because there 
was the risk of the death penalty, the wife of a grocery 
store owner who heard a robber make a similar state­
ment to a cohort during the course of a holdup, a 
former president of the county medical association 
whose colleague had a similar experience, and the 
present warden of San Quentin Prison who testified 
as to death row inmates receiving meals superior to 
those given the general prison population, and regard­
ing other favorable aspects of the living arrangements 
on death row, the general opinion of prison personnel 
that their work would be almost impossible without 
the death penalty, and the request (granted) of a non­
capital inmate upon his release to be shown the gas 
chamber as a reminder never to commit murder. Upon 
the conclusion of the foregoing proceedings the trial 
court made findings of fact and stated conclusions of 
law rejecting the position of amicus.

The popular sentiment in favor of the death penalty 
as a necessary form of punishment is reflected in the 
number of American jurisdictions retaining the supreme 
penalty: the federal government, the District of Colum­
bia and forty-one of the fifty States (eight of which



-62-

experimented for varying periods with abolition of the 
death penalty, only to restore it, Delaware as recently 
as 1961).51

In California, at least, the introduction and defeat of 
a bill to abolish the death penalty has become an 
almost annual ritual. Such a bill was again defeated 
by the Legislature in 1970.52 In contrast a new capital 
offense was added to the California Penal Code in 
1970,53 and bills are before the 1971 California Legisla­
ture which would add additional capital offenses.54 
After extensive study, the staff of a California legisla­
tive committee has recommended that a revised penal 
code retain capital punishment.55 And two additional 
federal capital offenses were enacted as recently as 
1965 and 1961.56

51U.S. Bureau of Prisons, National Prisoner Statistics Bulle­
tin: Capital Punishment 1930-1968 (August, 1969) at 30 (Table 
15).

52California Legislature, Final Calendar of Legislative Busi­
ness: Regular Session 1970, Assembly Final FTistory 52 (Bill 20). 
See also People v. Love, 56 Cal.2d 720, 737-38 1366 P. 2d 
33,42] (1961) (McComb, J., dissenting).

53Section 12310, explosion or ignition of a destructive device 
or explosive causing mayhem or great bodily injury.

54Assembly Bill 619 would make it a capital offense to as­
sault a peace officer or fireman and thereby proximately cause 
his death. Assembly Bill 1525 would make it a capital offense 
to kidnap any elected public officer. Senate Bill 112, passed by 
the Senate and sent to the Assembly, would provide for an auto­
matic finding of first degree murder for any person convicted of 
committing murder of a peace officer. California Legislature, 
Legislative Index (August 17, 1971); California Legislature, 
Senate Weekly History (September 17, 1971).

55State of California, Joint Legislative Committee for Revi­
sion of the Penal Code, The Criminal Code 8315(a)(1) (Staff 
Draft) 18-19 (1971).

5618 U.S.C. § 1751 (assassination of the President, Vice 
President or other officer in the line of succession); 49 U.S.C. 
§ 1472(i) (aircraft piracy).



It is ridiculous for petitioner and amici to focus 
upon the small number of executions in recent years 
as an indicator of declining popular acceptance of the 
death penalty, when it is common knowledge that these 
figures are the result of reversals and stays of execution 
granted by state57 and federal courts, including this 
Court, during the pendency of various legal challenges 
to the death penalty made in cases such as Maxwell v. 
Bishop, 398 U.S. 262; McGautha v. California, 402 
U.S. 183, and the case at bar.

A much more accurate barometer of the “evolving 
standards of decency that mark the progress of a ma­
turing society”58 is the constant number of defend­
ants whom juries annually send to the nation’s prison 
systems under sentence of death, as indicated in the fol­
lowing figures. j °

57 See, e.g., People v. Goodridge, 70 Cal. 2d 824, 839 [452 
P. 2d 637, 646] (1969): “Although defendant had not chal­
lenged the constitutionality of the death penalty, this court de­
layed filing its opinion in this case until that question was re­
solved in In re Anderson, 69 Cal.2d 613 [. . . 447 P,2d 
117]. This court further delayed action in all pending automatic 
appeals to permit defendants to challenge the composition of the 
jury following Witherspoon v. Illinois, 391 U.S. 510. . .

58Trop v. Dulles, 356 U.S. 86, 101 (plurality opinion of 
Warren, C.J.).



- 6 4 -

t a b l e  c

Number of Prisoners Received in Prison Under Death Sentence

California59 United States60

1970 36 —

1969 14 ■ —

1968 27 102
1967 20 85
1966 27 118
1965 22 86
1964 19 106
1963 24 93
1962 21 103
1961 20 140

The foregoing figures with respect to the imposition 
of capital punishment are hardly indicative of “ex­
treme contemporary rarity resulting from a demonstrat- 
able historical movement which can only be interpreted 
fairly as a mounting and today virtually universal re­
pudiation.” (Pet. Br. p. 12.)

Respondent questions, and fails to perceive the rele­
vancy of, petitioner’s assertion that “there is evident a 
definite, continuing, long-term, accelerating, worldwide

59California Department of Corrections, California Prisoners 
1968 (June, 1969), at 92 (Table 35) (the latest edition of this 
publication available at the present time). The 1969 and 1970 
figures are statistics from the files of the Department destined 
for publication in the next two editions.

60U.S. Bureau of Prisons, National Prisoner Statistics Bulle­
tin: Capital Punishment 1930-1968 (August, 1969) at 12 (Table 
4) (the latest edition of this publication available at the present 
time).



—65

trend toward ending the use of the penalty of death.”01 
(Pet. Br. 4e.) That is a frail foundation upon which 
to postulate the unconstitutionality of the death pen­
alty. This Court’s interpretation in 1971 of what the 
Framers of the Eighth Amendment had in mind in 
1789 can hardly be affected by petitioner’s characteriza­
tion of Liechtenstein, Luxembourg, Nicaragua, and 
Surinam as having de facto abolished the death penalty. 
(Pet. Br. 2e.) Suffice it to say that (1) the total 
number of nations which are abolitionist de jure or 
de facto represents a distinct minority in the world 
community,62 (2) the conditions that lead a jurisdic­
tion to conclude that a particular punishment is or is 
not required for the protection of its populace vary 
from nation to nation,63 as they vary from State to 
State within our own federal republic, and (3) peti­
tioner has not pointed to any abolitionist nation which 
has TcjecEd the death penalty by judicial declaration 
of unconstitutionality. In any event, “ [o]n the evidence

81“A trend requires a base, and movement from it. . . . Inspec­
tion of the cited data reveals, however, no base and no move­
ment, only a description of the present legislative situation. . . . 
[I]f, as appears to be true, for a number of years the situation 
has been relatively stable, . . . then it is hard to see how ‘evolv­
ing standards of decency’ . . . can be said to be violated.” 
Packer, Comment, Making the Punishment Fit the Crime, 77 
Harv. L. Rev. 1071, 1073-74 (1964).

e2United Nations, Department of Economic and Social Af­
fairs, Capital Punishment 9-11, 83-85 (1968). Included among 
the nations retaining the death penalty are countries as civilized 
as ours (e.g., France, Spain, Australia, and Japan). Id., 9, 
83.

68Compare the following remarks of one of the justices who 
acquitted seven persons in Papua-New Guinea this year of a 
charge of cannibalism: “ [Cjannibalism was not improper or in­
decent in the men’s community. One cannot conceive that the 
legislature would have intended to impose uniform standards of 
decency and propriety on all the peoples of this country.” Los 
Angeles Times, Part I, p. 15 (Aug. 12, 1971).



— 66—

available it does not appear that this is a case for due 
process by head count.”64

If indeed the “relevant Eighth Amendment touch­
stone is the judgment of enlightened public opinion” 
(Pet. Br. 24(n.40)), then what more enlightened assem­
blage could there be than the twelve jurors in the 
hundreds of pending capital cases who on the basis of 
the evidence presented to them in court solemnly exer­
cised their judgment on the ultimate question whether 
the defendant was “fit to live.”85 As this Court has 
recognized, “one of the most important functions any 
jury can perform in making such a selection is to main­
tain a link between contemporary community values 
and the penal system.” Witherspoon v. Illinois, 391 
U.S. 510, 519(n. 15). “In our criminal courts the jury 
sits as the representative of the community; its voice 
is that of the society against which the crime was com­
mitted.” Williams v. New York, 337 U.S. 241, 253 
(Murphy, J., dissenting).

The specter often raised of a wholesale bloodbath 
in the event all of the 600 to 700 prisoners under sen­
tence of death were to be executed in the coming year 
is first of all irrelevant to a constitutional determina­
tion of whether the States remain free to decree that 
alternate punishment for murder. Also irrelevant in the 
present context is whether it costs more to execute a 
man than to keep him alive; and whether capital 
cases have an adverse effect on our court system.

“ Packer, supra, at 1074. “Of course it is true that by the 
middle of the nineteenth century the very considerable list of 
capital offenses in most jurisdictions had been cut down to a 
much smaller number. (Citation.) But that movement appears 
to have ended by about 1900.” Id., 1073 (n. 9.)

65Witherspoon v. Illinois, 391 U.S. 510, 521 (n.20); People 
v. Morse, 60 Cal. 2d 631, 647 [388 P.2d 33, 43] (1964).



— 67—

Such considerations bear solely on the legislative de­
sirability of the death penalty. Secondly the specter of 
mass execution is an unrealistic parade of horribles. 
By way of example, only 25 of the 102 prisoners on 
death row in California have had their judgments 
of conviction imposing the death penalty affirmed by 
the California Supreme Court; the remainder have yet 
to have their cases reviewed on automatic appeal66 
or instead are awaiting new trials on the issue of 
penalty. California State Prison at San Quentin, Execu­
tion Data (September 1, 1971). Of those 25 a great 
number have petitions for writ of certiorari pending in 
addition to future clemency hearings67 and issues 
available upon which to base collateral proceedings in 
the state and lower federal courts.

Respondent fails to comprehend how the length of 
the average inmate’s confinement on death row can 
render his ultimate execution cruel and unusual, par­
ticularly since part of the delay in carrying out the judg­
ment is occasioned by the States’ desire for a full and 
adequate appellate review of the proceedings which led

6«Cal. Pen. Code §1239 (providing for an automatic appeal 
since 1935). Under this section review of the case and reversal 
may occur even contrary to the defendant’s wishes. People v. 
Stanworth, 71 Cal. 2d 820, 832-35 [457 P.2d 889, 895-900] 
(1969). The California Supreme Court considers itself bound to 
review the record for errors not raised by the defendant when 
the case is a capital one. See People v. Goodridge, 70 Cal. 
2d 824, 839 [452 P.2d 637, 646-47] (1969); People v. Robin­
son, 61 Cal. 2d 373, 388(n,14) [392 P.2d 970, 979] (1964). 
If the California Supreme Court’s review of these cases follows 
the pattern of the past six years, the majority of these individuals 
will have their judgments imposing the death penalty reversed 
or modified to impose a life sentence. See infra, Appendix p. 1, 
Table H.

67Petitioner recognizes that “governors will almost never give 
consideration to commutation in a capital case while judicial pro­
ceedings are pending. . . .” (Pet. Br. 40 (n.78)).



-68—

to the imposition of the death sentence. Innovative 
decisions by this Court and other federal and state 
courts have contributed to lengthening the appellate and 
collateral review of capital cases, and thereby to in­
creasing the median elapsed time of prisoners on death 
row in the various jurisdictions from 14.4 months at 
the end of 1961 to 33.3 months at the end of 1968.68 
Some of this delay may be a temporary phenomenon! 
rather than an unavoidable characteristic of our ju­
dicial system. But thus a large part of the delay has 
been for the benefit of the condemned prisoners, who 
would be the first to complain of undue haste if 
they were accorded less due process on review of their 
judgments of death.69 However, in addition to the 
foregoing meaningful review, there are countless friv­
olous actions filed by such inmates which, in conjunc­
tion with stay applications filed therewith, result in the

68U.S. Bureau of Prisons, National Prisoner Statistics Bulletin: 
Capital Punishment 1930-1968 (August, 1969) at 12 (Table 
4).

69The course of two California cases through the official re­
ports is illustrative of why it takes so long for the judgment in a 
capital case to become final: (1) People v. Seiterle, 56 Cal. 2d 
320 [363 P.2d 913] (1961); Seiterle v. Superior Court, 57 Cal. 
2d 397 [369 P.2d 697] (1962); People v. Seiterle, 59 Cal. 2d 
703 [381 P.2d 947] (1963), cert, denied, 375 U.S. 887; In re 
Seiterle, 61 Cal. 2d 651 [394 P.2d 556] (1964), cert, denied, 
379 U.S. 992; People v. Seiterle, 65 Cal. 2d 333 [420 P.2d 
217] (1966), cert, denied, 387 U.S. 912; In re Seiterle, 71 Cal. 
2d 698 [456 P.2d 129] (1969); (2) People v. Terry, 57 Cal. 
2d 538 [370 P.2d 985] (1962), cert, denied, 375 U.S. 960; 
People v. Terry, 61 Cal. 2d 137 [390 P.2d 381] (1964), cert, 
denied, 379 U.S. 866; People v. Terry, 70 Cal. 2d 410 [454 
P.2d 36] (1969), cert, denied, 399 U.S. 811; In re Terry, 4 
Cal. 3d 911 [484 P.2d 1375] (1971); fifth retrial of the issue 
of penalty is presently pending in Los Angeles Superior Court. 
Id., 915 [484 P.2d at 1378-79]. See also the chronology set 
forth in United States ex rel. Townsend v. Twomey, 322 F. 
Supp. 158, 160-61 (N.D. 111. 1971.)



—69—

setting aside of execution dates previously fixed.70 In 
other words the State does not purposefully, or even 
negligently, subject the inmate to an unduly long pe­
riod of pre-execution incarceration on death row; it is 
often the inmate, unsatisfied with a full and ade­
quate appellate review, who himself prolongs his time 
on death row to that extreme length which places in 
disrepute the entire system of administration of jus­
tice.71

Nor is there anything cruel and unusual in the physi­
cal surroundings of the men awaiting execution, as is 
evident from a recent article in the New York Times 
authored by one of the inmates on San Quentin’s death 
row.73 Further detail regarding the routine of these 
men is provided below.73

70In California an execution date is set 60-90 days after 
the initial appeal is determined and 30-60 days after any sub­
sequent appeal is determined. Cal. Pen. Code §§ 1193, 1227.

71One study contains suggestions as to how the “unnecessarily 
slow process” in capital cases could be expedited. Post-Con­
viction Remedies in California Death Penalty Cases, 11 Stan. 
L. Rev. 94, 132-35 (1958.)

72Welch, San Quentin’s Death House, New York Times, p. 
31 (July 23, 1971): “Disregarding the omnipresent fear, of the 
gas chamber, our living conditions aren’t so bad. By prison 
standards the food is good, although we’re only fed two meals 
a day. [Sandwiches are provided at the second meal for a later 
snack in the evening.] We have TV’s and piped in radio. We 
can take educational courses and order nearly any type book, 
magazine or newspaper.

“We’re allowed visitors, can write and receive letters from 
anyone, and can also write for publication. We can buy type­
writers, commissary items, and stationery from outside sources. 
Our exercise period lasts three and half hours each day, and 
we get to take showers twice a week.

“On the other hand, the only time we get sunshine is walking 
to and from a visit. [The other two units of death row, where 
inmates requiring less security are housed, are given their exer- 

(Footnotes 72 and 73 continued on following page)



- 7 0 -

In summary, respondent submits that the death 
penalty is consistent with “evolving standards of decency 
that mark the progress of a maturing society,”74 in that 
all but nine of the fifty States, plus a majority of per­
sons, representing many segments of our society, have 
concluded that such punishment is necessary for the pro­
tection of society. Capital punishment is neither in­
herently cruel and unusual per se, nor cruel and un­
usual in the manner by which it is imposed, or in 
relation to the crime of murder. Nor do the length 
or nature of pre-execution confinement bring capital 
punishment within the “ [prohibition against the wan­
ton infliction of pain” contained in the Fourteenth 
Amendment insofar as it incorporates the Eighth 
Amendment. Francis v. Resweber, 329 U.S. 459, 463; 
In re Anderson, 69 Cal. 2d 613, 632 [447 P.2d 117, 
130] (1968); People v. Chessman, 52 Cal. 2d 467, 
498-99 [341 P.2d 679, 699-700] (1959), cert, denied, 
361 U.S. 925.

cise period in an outside yard.] Our safety razors are equipped 
with locks so the blades can’t be removed. Our cells are searched 
periodically for weapons and contraband, and during exercise 
we are watched constantly by a guard with a rifle.” (Bracketed 
material supplied by respondent.)

7S“Between 10:30 A.M. and 2:00 P.M., all men are released 
from their cells for exercise in the corridor extending the length 
of the Unit. A punching bag, ping pong, card table and games 
are provided. . . . Men have TV, radio outlets, and library 
books and newspapers as cell activities. Many men do extensive 
legal work and some take academic correspondence courses. They 
receive visits from attorneys, relatives and friends, of long stand­
ing. Due to retrials and court-granted stays of execution, the 
average length of time on condemned status is increasing with 
nearly half the men having a tenure of over two years. . . .” 
California State Prison at San Quentin, Capital Punishment in 
California 3 (August 1, 1970).

7iTrop v. Dulles, 356 U.S. 86, 101 (plurality opinion of 
Warren, C.J.).



—71—

In view of the common use and acceptance of capital 
punishment during the entire history of our nation, up 
to and through the present, it is appropriate to join 
in the following observation by Justice Holmes for a 
unanimous Court:

“The 14th Amendment, itself a historical product, 
did not destroy history for the states, and substitute 
mechanical compartments of law, all exactly alike. If 
a thing has been practiced for two hundred years by 
common consent, it will need a strong case for the 
14th Amendment to affect it.” Jackman v. Rosenbaum 
Co., 260 U.S. 22, 31.75 Respondent submits, on the 
basis of this argument and those that follow, that peti­
tioner has failed to make his case against the con­
stitutionality of the death penalty.

C. In View of Petitioner’s Inability to Make a Clear 
Showing That the Death Penalty Serves No Legiti­
mate Function, the Federal Constitution Leaves the 
People of the State of California Free to Determine 
Through Their Elected Representatives That the 
Protection of Society Under Present Conditions 
Requires Death as a Form of Punishment for Cer­
tain Serious Offenses

One facet of petitioner’s attack on the constitution­
ality of the death penalty is his assertion that no social 
interest is served by the state’s putting a man to death 
that could not be served as well by a term of life 
imprisonment, and that therefore the death penalty 
constitutes “unnecessary cruelty”.70 (Pet. Br. 56.)

75See also Coolidge v. New Hampshire, .... U.S...... , 91 S. Ct.
2022, 2053 (Black, J., dissenting); McGauiha v. California, 
402 U.S. 183, 203; Walz v. Tax Commission, 397 U.S. 664, 
678.

76Weeins v. United States, 217 U.S. 349, 370.



•72-

Respondent submits that this assertion again states 
a matter for the consideration of a legislative body but 
not for a Court called upon to determine whether a 
particular mode of punishment is constitutionally pro­
hibited to the States. Assuming, as demonstrated in the 
preceding arguments, that petitioner’s judgment and 
sentence of death is neither cruel and unusual per se, 
nor cruel and unusual in the mode in which it is to 
be carried out or in relation to petitioner’s crime of 
murder, respondent is hard pressed to comprehend how 
a constitutional issue is raised by petitioner’s claim that 
alternative remedies to capital punishment are available 
to the state and federal governments, much less how 
such an allegation raises an issue of cruel and unusual 
punishment.

The reliance of petitioner and amici on selected 
sociological, penological, and psychiatric findings as 
supposed proof of the social inutility of the death 
penalty, evokes the observation that

. . questions for this Court are not settled by 
reference to medicine or penology. Our task is 
to determine whether the principles embodied in 
the Constitution of the United States place any 
limitations upon the circumstances under which 
punishment may be inflicted, and, if so, whether, 
in the case now before us, those principles pre­
clude the imposition of such punishment.”

Powell v. Texas, 392 U.S. 514, 565-66 (Forias, 
J., dissenting).

Turning to the merits of petitioner’s assertion, it is 
readily apparent that petitioner has grossly overstated 
his case in concluding that there is absolutely no sub­
stantial evidence that the protection of society is further-



- 73-

ed by the imposition of the death penalty for serious 
offenses. From his treatment of some of the studies that 
have been made on this subject, it appears that petition­
er views it to be an established fact that the death 
penalty accomplishes no legitimate social function. 
(Pet. Br., App. H.)

For reasons which will be set forth at greater length 
at the conclusion of this argument, respondent does 
not view its present task as encompassing conclusive 
proof of the social utility of capital punishment. Aside 
from the fact that such a showing can be, and has 
been, more appropriately and effectively attempted in 
the legislative arena, it is submitted that the burden, 
if any, which respondent must assume in the judicial 
setting of an attack on the constitutionality of the death 
penalty, is only to demonstrate that there is in fact a 
basis upon which the California Legislature could 
reasonably conclude that certain serious offenses77 
should be punishable by death.

77There are eight capital offenses in California: (1) first 
degree murder (Cal. Pen. Code § 190), (2) kidnaping for gain 
with bodily harm (Cal. Pen. Code § 209), (3) assault with a 
deadly weapon by a life prisoner (Cal. Pen. Code § 4500), (4) 
explosion or ignition of a destructive device or explosive causing 
mayhem or great bodily injury (Cal. Pen. Code § 12310, enacted 
in 1970), (5) treason (Cal. Pen. Code § 37), (6) sabotage 
of war or defense effort causing death or great bodilv injury 
(Cal. Mil. & Vet. Code §§ 1670, 1672(a)), (7) train wrecking 
(Cal. Pen. Code § 219), and (8) procurement of the conviction 
and execution of any innocent person by perjury or subornation 
of perjury (Cal. Pen. Code § 128). The death penalty is man­
datory for the offenses listed (6) and (7), as well as for the of­
fense listed (3) when the commission thereof results in the 
death of a non-inmate victim. However, since 1893, when the 
State assumed the sheriffs’ responsibility for conducting execu­
tions and complete records became available, executions have 
been limited to persons convicted of first degree murder, ag­
gravated kidnaping, and assault with a deadly weapon by a life 

(This footnote is continued on next page)



■74—

The objectives of punishment, whose furtherance the 
California Legislature entrusts to the trier of fact in 
capital cases, were set forth by the California Supreme 
Court in an opinion defining the awesome and complex 
task conferred upon the jury in such a case:

“ [I]n deciding the question whether the accused 
should be put to death or sentenced to imprison­
ment for life it is within their discretion alone to 
determine, each for himself, how far he will ac­
cord weight to the considerations of the several ob­
jectives of punishment, of the deterrence of crime, 
of the protection of society, of the desirability of 
stern retribution, or of sympathy or clemency, of 
age, sex, human passion, ignorance or weakness, 
or (if appropriate under the evidence, of illness or 
intoxication or provocation not sufficient to re­
duce the degree or class of the crime), of the pre­
sumptions concerning, or possible uncertainties

prisoner. Of the 292 executions in California since 1930, 280 
were for first degree murder, 6 for aggravated kidnaping, and 6 
for assault with a deadly weapon by a life prisoner. U.S. Bureau 
of Prisons, National Prisoner Statistics Bulletin: Capital Punish­
ment 1930-1968 (August, 1969) at 11 (Table 3); Hearings 
Before the Subcommittee on Criminal Laws and Procedures of 
the Senate Committee on the Judiciary on S. 1760, to Abolish 
the Death Penalty, 90th Cong., 2d Sess. 212-18 (1970). The 
records of the California State Prison at San Quentin indicate 
that as of September 1, 1971, there were 91 men and 4 women 
under death sentence for murder, 4 men under death sentence 
for assault with a deadly weapon by a life prisoner, having 
no other death sentence, and 3 men under death sentence 
for aggravated kidnaping having no other death sentence. 
Much of the force of the capital offense listed as (2) was 
sapped by the decision in People v. Daniels, 71 Cal. 2d 1119, 
1139 [459 P.2d 225, 238] (1969), excluding from the opera­
tion of California Penal Code section 209 those kidnapings 
which are solely to facilitate, and are merely incidental to, the 
crime of robbery, where the movement of the victim does not 
substantially increase the risk of harm. The Daniels decision has 
been applied fully retroactively. People v. Mutch, 4 Cal. 3d 389, 
394-96 [482 P.2d 633, 636-37] (1971).



■75—

attaching to, life imprisonment, or of the irrevo­
cableness of an executed sentence of death, or an 
apprehension that explanatory facts may exist 
which have not been brought to light, or any 
other consideration whatever which in the light of 
the evidence, the duty they owe to the accused 
and to the state, and the law as explained to them 
by the judge, appears to them to be important.”78

People v. Friend, 47 Cal. 2d 749, 767-68 [306 
P.2d 463, 474-75J (1957).

See also Williams v. New York, 337 U.S. 241, 
248 ;79

Winston v. United States, 172 U.S. 303, 313, 
quoted in McGautha v. California, 402 U.S. 
183, 200-01.

78Lord Justice Denning testified before the British Royal 
Commission on Capital Punishment, “The punishment inflicted 
for grave crimes should adequately reflect the revulsion felt by 
the great majority of citizens for them. It is a mistake to con­
sider the objectives of punishment as being deterrent or reforma­
tive or preventive and nothing else. . . . The ultimate justification 
of any punishment is . . . that it is the emphatic denunciation 
by the community of a crime; and . . . there are some murders 
which . . . demand the most emphatic denunciation of all, 
namely the death penalty.” Quoted in National Commission 
on Reform of Federal Criminal Laws, 2 Working Papers 1359 
(n.47) (1970).

79While “rehabilitation of offenders” has become the pri­
mary goal of criminal jurisprudence, “retribution” is still a per­
missible consideration albeit “no longer the dominant objective.” 
Williams v. New York, supra at 248 and n.13. “Description, 
even approval, of the prevailing mood of penal philosophy (sed 
quaere: whose mood?) is one thing; its elevation to constitution­
al dogma is quite another.” Packer, Comment, Making the 
Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1078(n.21) 
(1964). “This Court has never held that anything in the Consti­
tution requires that penal sanctions be designed solely to achieve 
therapeutic or rehabilitative effects,” Powell v. Texas, 392 U.S. 
514, 530 (plurality opinion of Marshall, J.)



—76—

Stripped down to their basic elements, the permis­
sible objectives of punishment are reduced to four: 
(1) deterrence, (2) incapacitation (or isolation), (3) 
rehabilitation, and (4) retribution.80 “Retribution 
aside, the rational justification for punishment is or­
dinarily thought to be its utilitarian propensity to pre­
vent or diminish the commission of offenses, through 
deterrence, incapacitation, rehabilitation, or some com­
bination of these.”81

Rehabilitation of the murderer sentenced to death 
is, of course, just as impossible as protection of the 
absent member of society victimized by the offender. 
However, petitioner should find little sustenance for 
his argument in this circumstance, in view of the “dark 
underside to the rehabilitative ideal.” Since, accord­
ing to this ideal, the proper aim of the punitive process 
is to reform the criminal so that he may re-enter society 
as a useful member, the permanent incapacitation of 
the dangerous, unreformable criminal by life term im­
prisonment no more serves the rehabilitative aim than 
does the death penalty.82

What, then, of deterrence-—has petitioner conclu­
sively established that the death penalty deters no sig­
nificantly greater number of persons from committing 
murder than does the prospect of life imprisonment?

Before proceeding to the merits of petitioner’s allega­
tions, which are founded principally on the sociological 
studies of Professor Sellin (Pet. Br., App. H), it seems

80Rudolph v. Alabama, 375 U.S. 889, 891 (dissenting 
opinion of Goldberg, J.); Trop v. Dulles, 356 U.S. 86, 111 (con­
curring opinion of Brennan, J.); Williams v. New York, 337 
U.S. 241, 248.

81Packer, supra at 1079.
82Packer, supra at 1081.



■77—

appropriate to join in the following observation by Pro­
fessor Packer:

“The legislative judgment inherent in provisions 
for the death penalty may be open to question, but 
that hardly seems enough to make it impermis­
sible. One may wonder whether a constitution that 
‘does not enact Mr. Plerbert Spencer’s Social 
Statics’ can fruitfully be thought of as enacting 
Mr. Thorsten Sellin on the death penalty.”83

The studies upon which petitioner relies conclude 
that the death penalty exerts no discernable influence 
on the rate of homicides. The truism that one may 
prove almost anything with statistics is a circumstance 
that makes one particularly concerned, in a matter as 
fraught with strong feelings as the desirability of the 
death penalty, that the statistician be totally objective 
and free of bias.84

Aside from the shadow which this caveat casts 
across the findings of non-deterrence, or more accurate­
ly the absence of findings of deterrence, a question 
arises as to the efficacy of the statistical approach in 
an area as imbued with imponderables as the question 
of human motivation toward criminal conduct.85 So­
cial and economic conditions, such as population pres­
sure, unemployment rate, influx of racial and ethnic 
minorities, in addition to such factors as the efficacy 
of local law enforcement, climate and weather, and the 
number of attractive crime targets, must all play a sig-

83Packer, supra at 1079-80 (footnote omitted).
84Some of the inherent weaknesses in a statistical approach 

are indicated in the opinion in Maxwell v. Bishop 398 F.2d 
138 (8th Cir. 1968), vac’d, 398 U.S. 262.

85See Van Den Haag, Deterrence and the Death Penalty, 
60 J. Crim. L.C. & P.S. 141, 145-46 (1969).



— 78—

nificant role in determining the number of homicides 
(particularly robbery-homicides) committed in a given 
jurisdiction in a given period of time. The existence of 
so many influential factors, not susceptible of measure­
ment and correlation, impugns the statistical method­
ology upon which petitioner places so much reliance. 
Clearly, the existence of these variables precludes a 
meaningful comparison between general undifferentiated 
murder statistics and a single proposed causual factor, 
that of the existence of the death penalty in the partic­
ular jurisdiction.86

Secondly, the steady increase in homicides across 
the nation,87 presumably caused by a multitude of 
social and economic factors, naturally tends to cover

86“It is indeed obvious that a statistical change cannot safely 
be ascribed to a particular explanation without making sure that 
no other explanations exist which, either alone or in conjunction 
with each other or the suggested explanation, could account for 
the change. And it is impossible to be sure that variations in 
homicide statistics before and after the abolition of capital pun­
ishment are in fact due to abolition, or that, if the figures remain 
constant, abolition did not have some effect which was cancelled 
out by some other cause. . . .

“This truth applies to any comparison of the position in a 
single country at different times; it applies even more to any 
comparison between different countries, where differences of char­
acter, behavior and outlook and different methods of compiling 
statistics present additional complications. Moreover, in any 
comparison between countries, it is necessary to establish that 
the crimes which are compared are identical, and this is rarely 
possible. If, for example, an attempt were made to compare the 
murder rate in England, Belgium and the Netherlands, it would 
be found that ‘murder’ means something different in each coun­
try. . . .” Royal Commission on Capital Punishment 1949-1953 
Report 340 (1953).

87Murder increased 76% in 1970 over 1960, and the rate 
of murder per 100,000 inhabitants increased 56% during that 
period. These rates appear to be increasing in all geographical 
areas of the country and in metropolitan, suburban, and rural 
areas. Federal Bureau of Investigation, Uniform Crime Reports— 
1970 (August 31, 1971) at 7-8.



•79-

up the perceptible deterrent effects of the death pen­
alty which might appear in the antiseptic conditions 
of a social laboratory.

A third objection to the statistical approach is that 
it measures the homicide rate in terms of the theoretical 
existence of the death penalty ( i.e., existing statutes and 
judgments imposing the punishment of death) rather 
than in terms of the actual existence of the death pen­
alty {i.e., executions carried out). During the previous 
decade in which the dramatic increase in murders was 
recorded, as indicated in the preceding footnote, while 
juries continued at a relatively stable rate to fix the 
penalty at death88 the annual number of executions 
in the United States dwindled from 56 to Q.89 In 
this context respondent concurs in petitioner’s apparent 
view (Pet. Br. 6h-7h) that the death penalty would be 
an even greater deterrent were it not for the inordi­
nate delay existing in the courts today which precludes 
the application of swift punishment to the offender. 
Interestingly enough, the homicide rate in California 
was relatively stable from 1953 to 1963, alternating 
between 3.3 and 4.0 per 100,000 population. In 1963, 
the year of the last execution except for the one in 
1967, the rate was 3.8. The rate has since climbed to 
6.0 in 1968 and 6.9 in 1969.90

A fourth possible flaw in the statistical approach 
arises from the vast majority of the States having the

88U.S. Bureau of Prisons, National Prisoner Statistics Bul­
letin: Capital Punishment 1930-1968 (August, 1969) at 12 
(Table 4). See Table C, infra, p. 64.

89M , 7 (Table 1).
9,)California Department of Corrections, Executions in Cali­

fornia 1943 through 1963 (Appendix II) (1965); California 
Bureau of Criminal Statistics, Crime and Delinquency in Cali­
fornia-—1969 (Table II-l)  52 (1970).



- 80-

death penalty and therefore the possibility arising that 
a substantial portion of the population of a State not 
having the death penalty might not be fully aware 
of the latter fact.

Last, and perhaps most significant, is the fact that 
many murders are not deterrable since they represent 
irrational crimes, crimes of passion in which a family 
or friends are the victims, and crimes resulting from 
provocation. These murders, which almost never re­
ceive the death penalty in California,91 and which 
would probably be undeterrable even if drawing and 
quartering were still the punishment,92 are promiscu­
ously lumped by the statisticians with murders which, 
respondent will demonstrate, are frequently deterrable. 
A study of murder rates and their relationship to the 
death penalty would be valid only if it were to limit 
itself to deterrable homicides involving a course of crim­
inal conduct understanding^ embarked upon, such as 
armed robbery, collection of insurance on the victim’s 
life, or kidnaping for ransom.

Some reference has already been made, in refuting 
the selective quotation of evidence by one of the amici 
curiae from a collateral proceeding,93 to the informed 
belief of many who have had first-hand contacts with

n See n. 107, infra, and Appendix to Respondent’s Brief.
»-The same point might be made with reference to the 

“probably apocryphal” story that when pickpocketing. was a 
capital offense in England, pickpockets plied their trade at the 
foot of the gallows as a fellow pickpocket was hanged. See 
Bedau, The "Death Penalty in America 20 (rev. ed. 1967). 
Faced with the choice between immediate starvation and intoler­
able poverty on the one hand, and the possibility of a hanging 
sometime in the future on the other, such persons were probably 
undeterrable.

93See pp. 60-61, infra.



—81
criminals that the latter in particular situations fre­
quently refrain from killing because of their fear of 
the death penalty.94 Many such graphic illustrations 
are set forth as follows, in the California Supreme 
Court case of People v. Love, 56 Cal. 2d 720 [336 
P.2d 33] (1961) (McComb, J., dissenting):

“ (b) In the early history of the western states 
of the United States of America, including Cali­
fornia, the death penalty was imposed by the 
early settlers to stop the rustling of cattle. It is a 
matter of common knowledge that in the early 
days of this state the apprehension and hanging 
of cattle rustlers reduced, and almost stopped, the 
theft of cattle.

“(c) In the early history of San Francisco, law 
enforcement broke down and chaotic conditions 
prevailed. A group of citizens, known as the 
Vigilantes, undertook to restore order. To do this, 
they apprehended criminals and after trial prompt­
ly executed the guilty parties. Order was restored, 
and the civil authorities assumed control again. 
Clearly fear of the death penalty was the basic 
reason for the restoration of order.

“(d) Any prosecuting attorney or criminal de­
fense attorney or any trial judge who has sat for a 
substantial period in a department of the superior 
court devoted to the trial of felony cases knows

94“There is no reliable method for determining who has 
contemplated committing a capital crime but refrained due to 
the fear of the death penalty as distinguished from other forms 
of criminal punishment. . . .  It is probably impossible to sub­
ject deterrence to scientific study in any direct way. . . . The 
facts cannot be ascertained so that they can be subjected to 
scientific analysis and interpretation.” Florida Spec! Comm’n for 
the Study of Abolition of Death Penalty in Capital Cases. Report 
13-14 (1965).



-82 -

that many felons are careful to refrain from arm­
ing themselves with a deadly weapon because they 
do not want to take the chance of killing anyone 
and suffering death as a penalty.

“A few recent examples of the accuracy of 
this view are to be found in the following cases 
involving persons arrested by officers of the Los 
Angeles Police Department. . . ,”95 Id., 734-35 
[366 P.2d at 40-41] (McComb, J., dissenting).

9B“(i) Margaret Elizabeth Daly, of San Pedro, was arrested 
August 28, 1961, for assaulting Pete Gibbons with a knife. She 
stated to investigating officers: ‘Yeh, I cut him and 1 should have 
done a better job. I would have killed him but I didn’t want 
to go to the gas chamber.’

“ (ii) Robert D. Thomas, alias Robert Hall, an ex-convict 
from Kentucky; Melvin Eugene Young, alias Gene Wilson, a pet­
ty criminal from Iowa and Illinois; and Shirley R. Coffee, alias 
Elizabeth Salquist, of California, were arrested April 25, 1961, 
for robbery. They had used toy pistols to force their victims into 
rear rooms, where the victims were bound. When questioned by 
the investigating officers as to the reason for using toy guns 
instead of genuine guns, all three agreed that real guns were too 
dangerous, as if someone were killed in the commission of the 
robberies, they could all receive the death penalty.

“(iii) Louis Joseph Turck, alias Luigi Furchiano, alias Joseph 
Farino, alias Glenn Hooper, alias Joe Moreno, an ex-convict 
with a felony record dating from 1941, was arrested May 20, 
1961, for robbery. He had used guns in prior robberies in other 
states but simulated a gun in the robbery here. He told inves­
tigating officers that he was aware of the California death penal­
ty although he had been in this state for only one month, and 
said, when asked why he had only simulated a gun, 7 knew that 
if I used a real gun and that if I shot someone in a robbery, 
1 might get the death penalty and go to the gas chamber.’

“ (iv) Ramon Jesse Velarde was arrested September 26, 1960, 
while attempting to rob a supermarket. At that time, armed with 
a loaded .38 caliber revolver, he was holding several employees 
of the market as hostages. He subsequently escaped from jail 
and was apprehended at the Mexican border. While being re­
turned to Los Angeles for prosecution, he made the following 
statement to the transporting officers: ‘I think I might have es­
caped at the market if I had shot one or more of them. I  prob­
ably would have done it if it wasn’t for the gas chamber. I’ll 

(This footnote is continued on next page)



- 83-

Similar views have been voiced by another Justice 
of the California Supreme Court on the basis of his 
personal experience:

“That the ever present potentiality in Califor­
nia of the death penalty, for murder in the com­
mission of armed robbery, each year saves the 
lives of scores, if not hundreds of victims of such 
crimes, cannot I think, reasonably be doubted by 
any judge who has had substantial experience

only do 7 or 10 years for this. I don’t want to die no matter 
what happens, you want to live another day.’

“ (v) Orelius Mathew Stewart, an ex-convict, with a long 
felony record, was arrested March 3, 1960, for attempted bank 
robbery. He was subsequently convicted and sentenced to the 
state prison. While discussing the matter with his probation of­
ficer, he stated: ‘The officer who arrested me was by himself, 
and if I had wanted, I could have blasted him. I thought about 
it at the time, but I  changed my mind when I thought of the gas 
chamber.’

“ (vi) Paul Anthony Brusseau, with a criminal record in six 
other states, was arrested February 6, 1960, for robbery. He 
readily admitted five holdups of candy stores in Los Angeles. 
In this series of robberies he had only simulated a gun. When 
questioned by investigators as to the reason for his simulating a 
gun rather than using a real one, he replied that he did not 
want to get the gas chamber.

“ (vii) Salvador A. Estrada, a 19-year-old youth with a four- 
year criminal record, was arrested February 2, 1960, just after 
he had stolen an automobile from a parking lot by wiring around 
the ignition switch. As he was being booked at the station, he 
stated to the arresting officers: ‘I want to ask you one question, 
do you think they will repeal the capital punishment law. If they 
do, we can kill all you cops and judges without worrying about 
it.’

“ (viii) Jack Colevris, a habitual criminal with a record dating 
back to 1945, committed an armed robbery at a supermarket 
on April 25, 1960, about a week after escaping from San Quen­
tin Prison. Shortly thereafter he was stopped by a motorcycle of­
ficer. Colevris, who had twice been sentenced to the state prison 
for armed robbery, knew that if brought to trial, he would again 
be sent to prison for a long term. The loaded revolver was on 
the seat of the automobile beside him, and he could easily 
have shot and killed the arresting officer. By his own statements 
to the interrogating officers, however, he was deterred from this 

(This footnote is continued on next page)



—84

at the trial court level with the handling of such 
persons. I know that during my own trial court 
experience, which although not extensive in crim­
inal law, included some four to five years (1930- 
1934) in a department of the superior court ex­
clusively engaged in handling felony cases, I re­
peatedly heard from the lips of robbers—some 
amateurs (no prior convictions), some profes­
sionals (with priors)—substantially the same

action because he preferred a possible life sentence to death in 
the gas chamber.

“ (ix) Edward Joseph Lapienski, who had a criminal rec­
ord dating back to 1948, was arrested in December 1959 for a 
holdup committed with a toy automatic type pistol. When ques­
tioned by investigators as to why he had threatened his vic­
tim with death and had not provided himself with the means 
of carrying out the threat, he stated, 7  know that if I  had a real 
gun and killed someone, I would get the gas chamber.’

“ (x) George Hewlitt Dixon, an ex-convict with a long felony 
record in the East, was arrested for robbery and kidnaping com­
mitted on November 27, 1959. Using a screw-driver in his jacket 
pocket to simulate a gun, he had held up and kidnaped the at­
tendant of a service station, later releasing him unharmed. When 
questioned about his using a screwdriver to simulate a gun, this 
man, a hardened criminal with many felony arrests and at least 
two known escapes from custody, indicated his fear and respect 
for the California death penalty and stated, 7  did not want to 
get the gas.’

“ (xi) Eugene Freeland Fitzgerald, alias Edward Finley, an ex­
convict with a felony record dating back to 1951, was arrested 
February 2, 1960, for the robbery of a chain of candy stores. 
He used a toy gun in committing the robberies, and when ques­
tioned by the investigating officers as to his reasons for doing 
so, he stated: If I had a real gun and killed someone, I would 
get the gas. I would rather have it this way.’

“ (xii) Quentin Lawson, an ex-convict on parole, was arrested 
January 24, 1959, for committing two robberies, in which he 
had simulated a gun in his coat pocket. When questioned on his 
reason for simulating a gun and not using a real one, he replied 
that he did not want to kill someone and get the death penalty.

“ (xiii) Theodore Roosevelt Cornell, with many aliases, an ex­
convict from Michigan with a criminal record of 26 years, was 
arrested December 31, 1958, while attempting to hold up the 
box office of a theater. He had simulated a gun in his coat 

(This footnote is continued on next page)



—85
story: ‘1 used a toy gun [or a simulated gun or a 
gun in which the firing pin or hammer had been 
extracted or damaged] because I didn’t want my 
neck stretched.’ (The penalty, at the time referred 
to, was hanging; death by lethal gas was sub­
stituted in 1941.)” (Footnotes omitted.)

People v. Love, 56 Cal. 2d 720, 744 [336 P.2d 
33, 46-47] (1961) (Schauer, J., dissent­
ing).98

Numerous other incidents reflecting the deterrent 
effect of the death penalty are related in the Royal 
Commission on Capital Punishment 1949-1953 Report, 
at 335-39 (1953), including instances in which a mur­
derer deliberately chose a jurisdiction not having the 
death penalty as the site of his crime in order to escape 
capital punishment. Id., 337-38.

Another source notes that shortly before California’s 
last execution, a liquor store owner was attacked by a

pocket, and when asked by investigating officers why an ex­
convict with everything to lose would not use a real gun, he re­
plied, ‘If I used a real gun and shot someone, I  could lose mv 
life

“ (xiv) Robert Ellis Blood, Daniel B. Gridley, and Richard 
R. Hurst were arrested December 3, 1958, for attempted robbery. 
They were equipped with a roll of cord and a toy pistol. When 
questioned, all of them stated that they used the toy pistol be­
cause they did not want to kill anyone, as they were aware that 
the penalty for killing a person in a robbery was death in the 
gas chamber.” (Emphasis in the original.) Id., 735-37 [336 
P.2d at 41-42] (McComb, J. dissenting). See also Coakley, 
Capital Punishment, 1 Amer. Crim. L. Q. 27, 31-32 (1963); 
American Bar Association, Section of Criminal Law Proceedings 
— 1959, 15-16.

96Justice Schauer noted, “I use robbery as the example. . . . 
The point of my discussion, however, is equally applicable to the 
deterrent effect of the death penalty against harming kidnap vic­
tims and against murder committed in the perpetration or at­
tempt to perpetrate arson, rape, burglary, mayhem or lascivious 
acts upon a child. . . .” Id., 744(n.l) [336 P.2d at 46.]



— 86—

knife-wielding assailant who told him, “ ‘I’m going to 
kill you’ ” but was deterred when his intended victim 
replied, “ ‘You may kill me, but you will go to the gas 
chamber.’ ”97

A recent study conducted by the Los Angeles Police 
Department confirms the continued validity of the fore­
going conclusions, which are drawn from innumerable 
incidents experienced by those whose contact with crim­
inals is real and direct rather than merely academic.98

This study, embodied in a 62-page report, was con­
ducted between December 21, 1970, and February 4, 
1971, and involved the interviewing of 316 arrestees. 
Los Angeles Police Department, Detective Bureau, Ad­
ministrative Analysis Section, A Study by the Los 
Angeles Police Department on Capital Punishment 3 
(February, 1971). Unarmed suspects were asked 
why they did not arm themselves, and armed suspects 
who did not use their weapons were asked why they 
did not. Id., 61. Of the 316 persons interviewed, 217 
denied their crime or refused a statement, primarily out 
of a desire not to jeopardize their case. Id., 11. The 
positive statements made by the remaining 99 are clas­
sified as follows.

97District Attorneys’ and County Counsels’ Association of 
California, Official Position on Capital Punishment 1 (Septem­
ber 2, 1971), quoting the Sacramento Bee, May 5, 1967.

98This is not to imply that all those whose experience with 
the criminal world is purely academic are dubious of the deter­
rent effect of the death penalty. See, e.g., Van Den Haag, On 
Deterrence and the Death Penalty, 60 J. Crim. L.C. & P.S. 
141 (June, 1969).



- 8 7 -  

t a b l e  D

Los Angeles Police Department Study of the 
Deterrent Effect of the Death Penalty, 

February, 197189

1. Deterred by fear of death penalty 
from carrying weapon or operative
weapon 50 (50.5%)

2. Unaffected by death penalty because
it was no longer being enforced 7 (7.07%)

3. Undeterred by death penalty, would
kill whether it was enforced or not 10 (10.1%)

4. Unaffected by death penalty because 
they would not carry weapon in any 
event, primarily out of fear of being 
injured themselves or of injuring 
someone else 32 (32.3%)

The conclusions drawn from the study are as fol­
lows:

“I. The adoption of an effectively enforced 
death penalty system is a deterrent in the pre­
vention of homicides. II. Though the death penalty 
has not been removed from the statutes in Cali­
fornia, many suspects believe in reality that no 
death penalty exists as it is not being enforced. 
III. Some suspects, while realizing that the Cali­
fornia death penalty exists in name only, disclose 
that the certainty of an executed death penalty 
sentence would deter them from being armed 
while committing crimes.” Id., 2.

"Los Angeles Police Department, Detective Bureau, Ad­
ministrative Analysis Section, A Study by the Los Angeles Police 
Department on Capital Punishment 11 (February, 1971).



— 88-

The report also notes, “If this study contained only 
one and not the 50 documented cases supporting the 
fact that the death penalty is a deterrent, there should 
be no question of its retention and enforcement. In 
1970 in the City of Los Angeles, 394 innocent people 
were victims of an unlawful execution without the right 
of due process of law.” Id., 1.

On the basis of objective criteria,100 the report 
compiled and selected 25 case histories from the 99 
individuals who made positive statements. Of the 25 
arrestees, 16 were under arrest for robbery, 4 for bur­
glary, 3 for felonious assault, and 2 for rape; and 10 
were armed when arrested while 15 were not.101 Id., 
8. The time elapsed between arrest and interview 
ranged from 1 to 5 days and averaged 2 days.102 Id., 9.

100Inclusion of cases from different areas of the city to in­
clude various types of crimes, juveniles and adults, suspects hav­
ing as varied ethnic, religious, and economic backgrounds as pos­
sible; selection of cases so that no investigator participated in 
more than one case history; selection of cases from various time 
periods within the survey; inclusion of as many different arrestee 
views as possible either showing or not showing behavior de­
terred by the death penalty. Approximately 97% of the 1,022 
officers of the detective bureau were asked to participate in the 
study. Id., 4-5.

101Of the 25, 23 were male adults and 2 were male juve­
niles; 10 were Caucasian, 13 were Negro, and 2 were Latin; 
age ranged from 16 years to 40 years, averaging 24.8 years; 
number of felony arrests per suspect ranged from 1 to 21 and of 
misdemeanor arrests from 0 to 16, averaging 7.7 felony arrests 
and 3.9 misdemeanor arrests; and range of time lived in Califor­
nia was from 1 year to 40 years, averaging 14.4 years. Id., 
8-9.

102The Christmas and New Year holidays occurred during 
the period covered by the study and caused the average elapsed 
time between arrest and interview to increase to twice its normal 
figure. Id., 10.



-89-

The statements made by these 25 arrestees are indi­
cated below.103

103 (1) (unarmed robber) “Since in reality there is no death 
penalty in California, I would kill to obtain what I want.” (2) 
(armed robber) “I used a pellet gun because I didn’t want to 
kill anyone and be put to death in the gas chamber.” (3) (un­
armed burglar) “I don’t carry a gun. I don’t want to be shot 
at by police and am afraid of the death penalty.” (4) (armed 
robber) “I used an unloaded gun in the robbery of a market 
so I would not hurt anyone and because I am afraid of death 
penalty.” (5) (armed robber) “The gun was unloaded because 
I didn’t want to hurt anyone. I know the punishment would be 
greater if I shot anyone during a robbery.” (6) (armed robber) 
“I would be afraid to use a gun because of possible death pen­
alty.” (7) (armed attempted murderer) “I would have shot it 
out if necessary, the death penalty is no deterrent.” (8) (armed 
robber) “I used a blank revolver because I ’m an ex-con.” (9) 
(unarmed robber) “I would not use a gun, I am afraid of the 
consequences of the death penalty.” (10) (unarmed burglar) “I 
never owned a gun because I’m afraid of the death penalty.” (11) 
(unarmed burglar) “If I was armed I would not have used the 
weapon, I am afraid of the gas chamber.” (12) (unarmed rob­
ber) “I didn’t use a gun because I was afraid of being shot.” 
(13) (armed suspect charged with assault with a deadly weapon) 
“I would kill if I had the chance, I’m not afraid of any courts. 
They are easy.” (14) (unarmed attempted robber) “I am waiting 
for the death penalty to be removed, then everything is free.” 
(15) (unarmed forcible rapist) “I don’t carry a gun because 
I’m afraid of getting the death penalty.” (16) (unarmed bur­
glar) “Because of the death penalty, I would never arm myself.” 
(17) (unarmed forcible rapist) “I have gotten into too much 
trouble before when I had a gun.” (18) (armed suspect charged 
with assault with intent to commit murder) “Even if a death oc­
curred as a result of a shooting, I am not afraid because no one 
believes in the death penalty anymore.” (19) (unarmed robber) 
“I am afraid of the death penalty. I wasn’t armed.” (20) (un­
armed robber) “I used a toy gun, I didn’t want to hurt anyone.” 
(21) (unarmed robber) “I don’t carry a gun, I might shoot 
someone accidentally, I’m afraid of the death penalty.” (22) 
(unarmed burglar) “I’m an ex-con, I would be an idiot to carry 
a gun. Punishment would be too great.” (23) (armed robber) 
“I didn’t want to hurt anyone, I had an empty gun.” (24) 
(unarmed robber) “I would use weapon if I got into a bind. 
It doesn’t make any difference, no one goes to the gas chamber.” 
(25) (armed robber) “I would use gun if necessary, but I fear 
the death penalty.” Id., 12-40.



— 90-

Respondent submits that such data cannot accurately 
be dismissed as “anecdotal impressions of law enforce­
ment” (Pet. Br. Ih, 8h) and that they are instead 
persuasive proof that the existence of capital punish­
ment, even though unenforced today, acts to deter a 
substantial number of criminals from making the pre­
meditated decision to arm themselves with operable 
weapons or from using such weapons to kill their vic­
tims. Undoubtedly numerous citizens are alive today 
only because of the existence of the death penalty, 
and other victims probably would not have been exe­
cuted had some criminals not held the accurate belief 
that the death penalty is not being enforced today.

These circumstances lead one to what is perhaps the 
most compelling justification for the death penalty. 
That is that the armed robber or armed burglar, com­
monly faced with a maximum term of life imprison­
ment104 if apprehended, might well consider himself 
foolish not to kill his victims or other witnesses if by 
doing so he were to risk only the same penalty, life 
imprisonment, for murder, while increasing multifold 
his chances of avoiding apprehension. The armed rob­
ber of a one-man liquor store operation would not let 
our views of the dignity of human life cause him to 
hestitate for a moment at killing the lonely figure 
behind the counter at a late hour when no other persons 
are around to witness such an execution. The same 
applies to the willingness of the armed robber to kill 
a police officer in order to avoid apprehension and 
conviction, when without the death penalty the crim-

XOiSee, e.g., Cal. Pen. Code §§ 213, 461, 671.



—91—

inal will risk no added punishment if he does away 
with his intended captor.105

This justification for the death penalty was judicial­
ly recognized in People v. Love, 56 Cal. 2d 720, 746 
[366 P.2d 33, 48] (1961) (Schauer, L, dissenting): 

“ [T]he robber can do one thing that will vastly 
decrease the risk of identification and conviction: 
he can eliminate the known witnesses—the victims 
he robs. . . .  It cannot be validly disputed that 
the choice as to [what] he carries—a gun or what 
looks like a gun—is in case after case controlled 
solely by his respect for the death penalty. If the 
punishment he risks for robbery is to be imprison­
ment—and only imprisonment, even if he elimi­
nates the only witness—it would seem inevitable 
that the incentive to kill would be greatly in­
creased. The greater chance of escaping any pun­
ishment would, in the minds of some at least, out­
weigh the slighter risk of having the term in­
creased. Many a robber who would take the risk 
of a longer term would absolutely shun any plan 
which substituted death for imprisonment.”

Justice Schauer concluded that abolition of the death 
penalty “would be tragically undesirable to the families 
of the innocent victims who would die violently as a 
result.” Id., 747.

The California Legislature’s defeat of bills to abolish 
capital punishment has been predicated in part upon

10SSee 4 Blackstone, Commentaries 18 (Tucker ed. 1803): 
“Thus in France the punishment of robbery, either with or with­
out murder, is the same: hence it is, that though perhaps they 
are therefore subject to fewer robberies, yet they never rob but 
they also murder. In China, murderers are cut to pieces, and 
robbers not: hence in that country they never murder on the 
highway, though they often rob.”



-92

precisely such evidence concerning the deterrent effect 
of the death penalty, including instances of felons delib­
erately choosing jurisdictions not having the death pen­
alty in which to commit their crimes. See California 
Senate, Hearing Report and Testimony on Senate Bill 
No. 1, 1960 Second Extraordinary Session, Which 
Proposed to Abolish the Death Penalty in California 
and to Substitute Life Imprisonment Without Possi­
bility of Parole 133-35, 149-54, 156, 161 (March 9, 
1960), referred to in People v. Love, supra at 755-56 
[366 P.2d at 813-14] (Schauer, J., and McComb, J., 
dissenting from denial of petition for rehearing).108 
The latter opinion quotes a prominent defense attorney 
concurring in the conclusion that such evidence is per­
suasive and observing, “ ‘ “Naturally, there can be no 
statistics produced to demonstrate how many murders 
were not committed because the would-be perpetrator 
feared the death penalty.” ’ ” (Emphasis in the orig­
inal.) Id., 756 [336 P.2d at 814], See also Robinson 
v. United States, 324 U.S. 282, 284.

Respondent recognizes that the existence of capital 
punishment does not operate as a deterrent to all crim­
inals. Similarly the British Royal Commission con­
cluded:

“Prima facie the penalty of death is likely to have 
a stronger effect as a deterrent to normal human 
beings than any other form of punishment, and 
there is some evidence (though no convincing sta­
tistical evidence) that this is in fact so. But this 
effect does not operate universally or uniformly, 
and there are many offenders on whom it is limited 
and may often be negligible.”

Royal Commission on Capital Punishment 1949- 
1953 Report, 24; see also supra at 274.

109See also Los Angeles Times, Part I, pp. 1, 24 (June 23, 
1971).



-93

“But it would be absurd to claim because it did not 
deter all it did not deter any.” (Emphasis in the 
original.) People v. Love, supra at 745 [366 P.2d 
at 47] (Schauer, J., dissenting). The death penalty 
clearly does operate as a deterrent with respect to a siz­
able segment of the criminal population, as previously 
demonstrated. And significantly it is this segment, the 
majority of whose crimes are committed for pecuni­
ary gain, who commit the types of crimes that so often 
end up incurring the death penalty when life is taken 
in connection therewith. As is also indicated in the 
Appendix to this brief, the crimes of passion, which 
are rarely deferrable, incur the death penalty only 
under the most exceptional circumstances and consti­
tute only a minute portion of the death sentences im­
posed in California.107

“ [A] 11 those who violate penal laws of any kind are 
by definition undeterred.” Powell v. Texas, 392 U.S. 
514, 531 (plurality opinion of Marshall, J.). How­
ever, we can never know the number of persons who

107For example, respondent is informed by the staff of the 
California State Prison at San Quentin that the crimes of only 
four of the 98 men currently housed on that institution’s Death 
Row involve the killing of the defendant’s wife. Each of these 
four cases indicates exceptional circumstances and only the last 
listed can arguably be said to involve an element of passion: (1) 
Perveler: a former police officer who, with his girlfriend, calculat- 
ingly killed his wife and the girlfriend’s husband; (2) Archerd: 
a male nurse who killed six persons, some of them former 
wives, with insulin injections for the motive of monetary gain; 
(3) Murphy: who hired another person to accost the defendant’s 
wife on a public road and murder her; (4) Crosier: who killed his 
common-law wife and was also convicted on a charge of assault 
with intent to commit murder upon another victim. None of the 
victims of the four women currently under sentence of death in 
California were husbands or lovers of the defendants.

More than half of the persons executed since 1943 killed 
their victims during the course of a robbery or a sexual assault 

(This footnote is continued on next page)



-94—

are deterred by the death penalty although, as respond­
ent has demonstrated, they are many.

That the death penalty does not deter all does not 
render it an ineffective, much less an unconstitutional, 
punishment. As one authority metaphorically illustrates 
the point,

“A judge once said, ‘The death penalty is a 
warning, just like a lighthouse throwing its beams 
out to sea. We hear about shipwrecks, but we do 
not hear about the ships the lighthouse guides 
safely on their way. We do not have proof of the 
number of ships it saves, but we do not tear the 
lighthouse down.”

Hoover, Statements in Favor of the Death Pen­
alty, in Bedau, The Death Penalty in Ameri­
ca 130, 131 (rev. ed. 1967).

In short, there is substantial and highly persuasive 
evidence, founded upon hard facts and human ex­
perience, of the deterrent effect of the death penalty. 
In concluding that the death penalty has no deterrent 
effect, the theoretical and statistical approach relied on

on a female, and another quarter of the number executed killed 
their victims during the course of a burglary, a quarrel with a 
crime partner, an attempt at escape, a prison fight, or while 
resisting arrest. Californa Department of Corrections, Executions 
in California 1943 Through 1963 (Table 30) (1965).

See also Report of New Jersey Commission to Study Capital 
Punishment 8-9 (October, 1964): “The Commission is convinced 
that capital punishment does deter some potential murderers from 
committing capital crimes. More importantly, it is believed that 
the deterrence is most signficant in the area of felony murder 
and in the area of a truly premeditated crime. . . .

“No punishment would be a deterrent for a crime of passion, 
or a crime committed by one who is insane. Those are not the 
persons who generally receive the death penalty. An examination 
of the crimes by the 14 persons presently awaiting execution in 
New Jersey . . . makes it abundantly clear that this is so.”



—95—

by petitioner “goes much too far on the basis of too 
little knowledge.” Powell v. Texas, 392 U.S. 514, 521 
(plurality opinion of Marshall, J.). As Justice Mar­
shall observed with general reference to the deterrent 
effect of criminal sanctions,

“The long-standing and still raging debate over 
the validity of the deterrence justification for penal 
sanctions has not reached any sufficiently clear con­
clusions to permit it to be said that such sanctions 
are ineffective in any particular context or for 
any particular group of people who are able to ap­
preciate the consequences of their acts. . . .” 
Id., 531.

Respondent submits that the foregoing statement has 
equal validity when applied specifically to the deterrent 
effect of the death penalty.

Deterrence is not the only function of punishment 
served better in many instances by the existence of the 
death penalty than by a maximum available punish­
ment of life imprisonment. Despite petitioner’s insist­
ence to the contrary, life imprisonment often provides 
a woefully inadequate method of protecting society 
through incapacitation or isolation of the prisoner.

Life imprisonment in California means the prisoner 
is eligible for parole after serving seven years of his 
term.108 Cal. Pen. Code § 3046. The myth that 
paroled murderers do not kill again evaporates upon 
a perusal of the case reports. See, e.g., People v. Peete, 
28 Cal. 2d 306, 308-09 [169 P.2d 924, 926] (1946),

108Life imprisonment without possibility of parole, an avail­
able punishment in California only for the offense of aggravated 
kidnaping (Cal. Pen. Code § 209), may in effect permit parole 
of the prisoner, since the Governor may commute such a term 
to one of life with possibility of parole. Cal. Const, art. V, § 8.



-96—

cert, denied, 329 U.S. 790; People v. Purvis, 52 Cal. 
2d 871, 875 [346 P.2d 22, 24] (1959); People v. Gil­
bert, 63 Cal. 2d 690, 702 [408 P.2d 365, 372]
(1965), vac’d 388 U.S. 263. See also People v. Robles, 
2 Cal. 3d 205, 213 [466 P.2d 710, 715] (1970); 
People v. St. Martin, 1 Cal. 3d 524, 529 [463 P.2d 
390, 392] (1970); People v. Vaughn, 71 Cal. 2d 
406, 412 [455 P.2d 122, 124] (1969); In re Cathey, 
55 Cal. 2d 679, 685 [361 P.2d 426, 428] (1961); 
People v. Jensen, 43 Cal. 2d 572, 578 [275 P.2d 25, 
30] (1954). Testimony before a California legislative 
committee has cited the cases of numerous murderers 
who killed again after being paroled, of prisoners serv­
ing life terms who killed in prison, and at least one 
instance of a prisoner assaulting a correctional officer 
after the Governor had commuted the prisoner’s sen­
tence from death to life.109 Two prisoners whose 
death sentences were commuted to life were paroled 
only to endanger the lives of others and have their 
parole revoked.110 And eleven of the persons executed 
in California between 1944 and 1957 had committed 
one or more murders prior to the crime for which they 
were executed, a majority of these defendants having 
served “life” sentences for these prior murders.111

There is always the substantial risk of escape, no 
matter what precautions are taken to guard the con-

109California Senate, Hearing Report and Testimony on 
Senate Bill No. 1, 1960 Second Extraordinary Session, Which 
Proposed to Abolish the Death Penalty in California and to 
Substitute Life Imprisonment Without Possibility of Parole 134- 
37 (March 9, 1960); Los Angeles Times, Part I, p. 1 (Decem­
ber 13, 1958).

110California Department of Corrections, Executions in Cali­
fornia 1943 Through 1963 (Appendix V) (1965).

m 1d. (Appendix TV).



■97-
victed murderer. For example, the defendant in 
People v. Hall, 199 Cal. 451, 458-59 [249 P. 859, 
861] (1926), subsequent to his conviction of first 
degree murder and sentence to life imprisonment, 
escaped from San Quentin and thereafter committed 
another first degree murder. See also People v. Gilbert, 
supra; People v. Jensen, supra. The consequences of an 
unsuccessful attempt at escape can be just as fatal, 
as evidenced by the recent escape attempt, at the Cal­
ifornia State Prison at San Quentin, of a life-term 
prisoner awaiting trial on a charge of murdering a 
correctional officer. His effort caused the death of 
three more correctional officers and two inmates at the 
hands of himself and other inmates, as well as his 
own death.112

When a prisoner under life sentence is brought to 
court for further proceedings, the inadequacy of such 
punishment as protection for society may again become 
very apparent, as was the case recently when three 
San Quentin prisoners serving life sentences unsuccess­
fully attempted to escape from a county courthouse 
and in the process shot to death the presiding judge 
and wounded the prosecuting attorney and a juror.113 
Similarly the pendency of new court proceedings against 
one defendant, already under sentences of death arising 
from another case, recently provided the occasion for 
his cohorts to steal 140 firearms intended to be used 
in an armed assault on the courthouse in an attempt 
to liberate him.114

1I2Los Angeles Times, Part I, pp, 1, 24 (August 22, 1971). 
usId., Part I, p. 1 (August 8, 1970). 
lu Id., Part I, p. 3 (August 25, 1971).



—98—

Despite the maximum security on death row, escape 
attempts by prisoners under sentence of death have 
also been attempted at San Quentin. In 1967 four 
prisoners under sentence of death succeeded in sawing 
through the bars of their cells before being apprehend­
ed, and five years earlier six such prisoners did the 
same, bludgeoned two guards, and seized their guns, 
holding the guards hostage for three hours in an at­
tempt to escape.115

Indeed the phenomenal increase in the number of 
fatal assaults on correctional officers in California 
prisons in the last few years,116 as reflected in the 
figures below, is indicative of the fact that punishment 
of prisoners by life imprisonment does not fully protect 
either our custodial personnel or those inmates who 
are of necessity confined with violent offenders. The 
fatalites may be increasing because “ ‘the inmate of 
today is more hostile, is immature, prone to act out, 
and less motivated,’ ”117 and there is reason to believe 
that absent the death penalty there would be a far 
greater number of prison homicides, particularly by 
persons serving life sentences.

ll5Los Angeles Times, Part I, p. 3 (January 31, 1967).
118Note also the recent death of 10 guards caused by in­

mates in a single day at a New York prison. Los Angeles Times, 
Part I, p. 1 (September 14, 1971); id., Part I, p. 1 (Septem­
ber 15, 1971).

117California Assembly, Report of the Select Committee on 
the Administration of Justice, Parole Board Reform in California 
13 (1970). The foregoing legislative committee disputes this 
conclusion of the California Department of Corrections. Ibid.



—9 9 -  
TABLE E

Homicides in California Prisons, 1965-1971,
Committed by Adult Felons118

Correctional Officers Inmates Killed 
Killed by Inmates by Other Inmates

1971 (Jan. 1 to Sept. 1) 6 12
1970 2 8
1969 0 15
1968 0 15
1967 0 9
1966 0 3

The chronology which follows provides one of the 
more graphic illustrations of the need for an enforced 
death penalty in coping with custodial homicides com­
mitted by convicted murderers. The California Su­
preme Court reversed the judgment of conviction which 
had imposed two death sentences on a defendant, on a 
rule of law that was totally novel to the California 
courts, to wit, that it would henceforth (but retroactive­
ly) be deemed improper for a prosecutor or a trial 
judge to inform the jury of the fact that a defendant 
under life sentence is eligible for parole after serving 
seven years imprisonment. (Cal. Pen. Code § 3046.) 
On retrial of the penalty issue, the jury imposed a 
life sentence on the murder charges. While in his cell 
awaiting formal sentencing, the defendant with a mat­
tress cover garrotted a fellow prisoner on the other side 
of the cell bars, because the prisoner owed him some 
cigarettes. For the latter offense the defendant was tried 
by jury and sentenced to death, only to have the Cali-

118These figures were obtained from the files of the Cali­
fornia Department of Corrections.



— 100-

fornia Supreme Court, in two separate opinions filed 
the same day, reverse both cases.119

Respondent submits that the unique deterrent and 
incapacitative effects of the death penalty are ap­
parent from the foregoing discussion. However, the con­
stitutionality of the death penalty, unlike a legislative 
determination of its desirability, cannot turn upon 
whether the members of this Court or of some other 
body find the evidence supportive of the death penalty 
more persuasive than the evidence supportive of the 
abolition of that form of punishment. The issue raised 
by petitioner at most requires this Court to determine 
whether, as petitioner in essence contends, there is no 
substantial evidence upon which the Congress or the 
Legislatures of 41 States could reasonably conclude that 
the death penalty for certain serious offenses serves a 
legitimate social purpose.

Having shown that there is indeed very substantial 
evidence supportive of the legislative view that capital 
punishment is necessary for the protection of society120 
under the conditions presently existing, respondent be­
lieves that it has met its burden vis-a-vis this facet of 
petitioner’s constitutional attack on the death penalty.

It is a settled doctrine of constitutional law that the 
burden of proof is on one who challenges the con­
stitutionality of a statute, and that in the absence of a

119People v. Morse, 60 Cal. 2d 631 [388 P.2d 33] (1964); 
In re Morse, 70 Cal. 2d 702 [452 P.2d 601] (1969); People 
v. Morse, 70 Cal. 2d 711 [452 P.2d 607] (1969), cert, denied, 
397 U.S. 944. Other factually similar cases have occurred in 
California.

120In the sense in which both are expressions of society’s 
need to protect the lives of its citizens, the state’s right to exe­
cute its most dangerous criminals is analogous to its right to kill 
the enemy on the battlefield and to the right of the individual 
to kill in defense of himself or others.



— 101—

clear showing of unconstitutionality a state statute will 
be presumed valid. McGowan v. Maryland, 366 U.S. 
420, 425-26. Moreover, strong policy considerations, 
involving the balancing of the respective interests which 
petitioner and respondent seek to protect, dictate that 
the burden of proof rest upon petitioner.

Compare the consequences of an incorrect decision 
upholding the death penalty with the consequences that 
would flow from an incorrect prohibition against the 
States’ employing that form of punishment. It seems so 
much more important to spare the lives of a substantial 
number of innocent citizens and law enforcement of­
ficers who would be murdered but for the death penalty, 
than to spare the lives of some of our most vicious 
murderers. Undoubtedly the consequences of an incor­
rect decision to prohibit the death penalty would be so 
much more undesirable in both social and moral 
terms,121 that this Court should certainly hesitate to 
overrule hundreds of years of law and human experi­
ence upon the meager and speculative showing made 
by petitioner.

As was stated by one former Justice of the California 
Supreme Court having substantial trial experience,122 

“Because of what my own eyes have seen and 
my ears have heard I cannot doubt the efficacy 
of the death penalty as a savior of the lives of 
victims of robbers, kidnapers, burglars, and crim­
inals of similar dispositions. But if there were

121 See Van Den Haag, Deterrence and the Death Penalty, 
60 J. Crim. L.C. & P.S. 141, 146-47 (1969).

122People v. Love, 56 Cal. 2d 720, 744 [366 P.2d 33, 47] 
(1961) (Schauer, J., dissenting).



- 102-

doubt in my mind I should resolve it in favor of 
protecting the innocent victims of the future rather 
than sparing the guilty killers of the past.”123

Moreover, in the event this Court were to adopt 
petitioner’s expansive and fluid interpretation of the 
Eighth Amendment,

. . it is difficult to see any limiting principle 
that would serve to prevent this Court from be­
coming, under the aegis of the Cruel and Unusual 
Punishment Clause, the ultimate arbiter of the 
standards of criminal responsibility, in diverse 
areas of the criminal law, throughout the country.” 

Powell v. Texas, 392 U.S. 514, 533 (plurality 
opinion of Marshall, J .).

The adoption of petitioner’s approach might well 
saddle the States with the burden of having to justify 
various forms of non-capital punishment by establish­
ing that life imprisonment without possibility of parole 
more effectively serves the aims of punishment than life 
with possibility of parole, that life is more effective 
than a fixed or variable term of years, imprisonment 
more effective than county jail, county jail more effec­
tive than probation, and probation more effective than 
a fine.

Respondent submits that in view of petitioner’s inabi1 
ity to make a clear showing that the death penalty 
serves no legitimate function, the federal Constitution 
leaves the People of the State of California free to de­
termine through their elected representatives that the 
protection of society under present conditions requires 
death as a form of punishment for certain serious of­
fenses.

123Id., 747 [366 P.2d at 48].



— 103

D. The Death Penalty Is Not Arbitrarily or Discrim- 
inatorily Imposed Upon Racial Minorities, the 
Poor, or the Uneducated in California; Prisoners 
Under Sentence of Death Constitute a Representa­
tive Cross-Section of California’s Criminal Popula­
tion

Petitioner’s challenge to the constitutionality of the 
death penalty rests in part upon his assertion that 
such punishment inevitably falls with an uneven hand 
upon certain less advantaged segments of our society.

Petitioner, amici, and the fellow abolitionists whose 
writings they cite, echo the familiar refrain that uni­
versally the death penalty is arbitrarily and discrimina- 
torily imposed upon members of racial minorities, the 
poor, the uneducated, the mentally deficient,124 and 
the “friendless.” (Pet. Br. 51-54.)

The foregoing has been so frequently mouthed as 
gospel truth, albeit without much of an attempt to sup­
port it factually, that a challenge to such dogma may 
seem almost heretical. However, respondent has found 
that illuminating data drawn from the operation of 
California’s system of criminal justice effectively puts 
the lie to these blind assertions.

The files of the 102 persons currently housed in the 
California prison system under sentence of death (3 
of whom have penalty retrials pending), as well as the 
files of the 11 persons presently housed in county jail 
facilities awaiting penalty retrials, have been examined 
by counsel for respondent. Four of these persons are 
women, all of whom are Caucasian and in the state

124Numerous safeguards protect the mentally deficient defend­
ant at all stages in a capital case. See, e.g., Cal. Pen. Code 
§§ 190.1, 1026-27, 1368-70, 3700-06, 4800-06.



-1 0 4 -

prison system.125 The 102 state prisoners are com­
prised of Caucasians (including Mexican-Americans and 
Puerto Ricans), Negroes, one Filipino, one American 
Indian, and one Arab. The 11 county prisoners in­
clude, in addition to Caucasians and Negroes, one Es­
kimo.

A comparison of the percentage of Negroes on 
death row in California with the percentage of Negroes 
indicated in other pertinent areas of the criminal proc­
ess126 yields the following results indicative of the ab­
sence of racial bias in the imposition of the death pen­
alty in California.

125See California State Prison at San Quentin, Execution 
Data (September 1, 1971).

126The comparison is limited to Negroes since they constitute 
the largest minority group and the only one for which complete 
penal statistics are readily available.



TABLE F
Race and the Imposition of the Death Penalty 

in California127

Caucasian Negro Other
Prisoners Executed, All 

Offenses, 1930-1970 75.7% 18.2% 6.1%
Prisoners Executed, Murder, 

1930-1970 75.0% 18.6% 6.4%
Under Sentence of Death, or 

Awaiting New Penalty Trial, 
All Offenses, September 1, 
1971 65.5% 25.7% 8.8%

Received in Prison, 1st 
Degree Murder, 1970 60.7% 36.7% 2.6%

Received in Prison, 2nd 
Degree Murder, 1970 55.8% 39.9% 4.3%

Received in Prison, Non- 
Vehicular Manslaughter, 
1970 55.5% 43.8% 0.7%

Charged in Superior Court 
with Homicide, 1969 59.2% 38.1% 2.7%

Received in Prison, 
All Offenses, 1970 69.0% 29.3% 1.7%

127Compiled from data (to be published) in California De­
partment of Corrections, California Prisoners— 1970 (Table 18A) 
(197-); California Bureau of Criminal Statistics, Crime and 
Delinquency in California— 1969 (Table VI-9) 117 (1970); 
U.S. Bureau of Prisons, National Prisoner Statistics Bulletin: 
Capital Punishment 1930-1968 (August, 1969) at 11 (Table 
3).



106-

Similarly, a recent in-depth study of the death pen­
alty in California concludes, contrary to the assertion 
of one critic,128 that race plays no part in a jury’s 
determination of punishment in a capital case. Special 
Issue, A Study of the California Penalty Jury in First- 
Degree Murder Cases, 21 Stan. L. Rev. 1297, 1301, 
1307, 1366-68, 1421 (1969).129

As is indicated by the figures in the preceding table, 
a determination whether there is racial discrimination 
must take into account factors other than the percent­
age of a particular minority in the general popula­
tion. Most relevant is the number of offenses, punish­
able by death, which are committed by the particular 
minority group.180

128Amsterdam, Comment, Racism in Capital Punishment: 
Impact of McGautha v California, 1 Black L. J. 185 (1971): 
“The long term effect of the McGautha decision is to license a 
system of capital sentencing in which individual juries are per­
mitted to decree life or death as they wish, free of any legal 
constraint. In a society which is deeply infected by racism, this 
discretion inevitably metes out death to black men, in many 
cases, simply because they are black.”

129See also Report of New Jersey Commission to Study Cap­
ital Punishment 9-10 (October, 1964).

130Thus even a noted abolitionist concedes, in finding no sig­
nificant indication of the influence of race in the imposition of 
the .. death penalty, that “ [f] or many decades there has been 
ample evidence that Negroes in this country commit three to six 
times more crimes than their population ratio to whites would 
lead one to expect.” Bedau, Death Sentences in New Jersey 
1907-1960, 19 Rutgers L. Rev. 1, 19, 21 (1964). Interestingly 
enough, 27% of the total number of arrests in the United States 
are of Negroes, as are 36.4% of the number of arrests for the 
seven major felonies; however, 58.9% of the arrests for murder 
and non-negligent manslaughter are of Negroes. Federal Bureau 
of Investigation, Uniform Crime Reports— 1970 (Table 32) 131 
(August 31, 1971). One observer has concluded, “the circum­
stances of life surrounding large numbers of Negroes in the 
United States generate violence, assault, and murder . . .” Schues- 
sler, The Deterrent Influence of the Death Penalty, 284 Annals 
of the Am. Acad, of Pol. and Soc. Sci. 54, 61 (Nov. 1952.)



— 107-

Some abolitionists, however, while conceding the 
absence of race as a factor in jury determination of 
punishment in capital cases, assert “that the race of 
the offender may be a significant indication of whether 
a death sentence will be carried out or voided by 
clemency.”131

The following figures graphically demonstrate that 
race plays no part in the granting or denial of clemency 
in capital cases in California; indeed, the percentage 
of Negroes receiving commutation of their death sen­
tences is shown to be identical to the percentage of 
Negroes presently under sentence of death in Califor­
nia (as indicated in the preceding table).

131Bedau, 19 Rutgers L. Rev., supra at 21.



108-

t a b l e  G
Race and the Commutation of Death Sentences 

in California 1959-1971132

Governor Edmund G. Brown 
1959-1966

Total Caucasians Negroes

(35 Executions)
Governor Ronald Reagan 

1967-1971

23 18 (78.3%) 5 (21.7%)

(1 Execution) 1 0 (0% ) 1 (100%)
Total 24 18 (75.0%) 6 (25.0%)

In the context of the data appearing in the pre-
ceding two tables, it is abundantly clear that the death 
penalty is not discriminatorily applied against Negroes 
in California, as is so frequently implied in the general 
charge of universal racial discrimination in the imposi­
tion of this form of punishment. Negroes are convicted 
of 36.7% of the first degree murders and yet com­
prise only 25% of the death sentences today. Although 
Negroes comprise only 18.6% of the executions for 
murder in the last forty years, they have received 25% 
of the commutations in recent years.

Moreover, what is so often forgotten is the fact that 
members of racial minorities, the poor, and the un­
educated seem to be the persons most in need of the 
protection of the death penalty, since they are appar­
ently the most frequent victims of murderers. Negroes 
comprise 54.9% of the murder victims in this coun­
try,13® and although the most recent national poll on

182This data is compiled from the files of the California State 
Prison at San Quentin.

13SFederal Bureau of Investigation, Uniform Crime Reports— 
1970 (Table 22) 118 (August 31, 1971).



— 109

the death penalty does not indicate the figures by 
race, it does show that that form of punishment is 
favored by a majority of persons in the lowest income, 
educational, and occupational groups.134

It is also clear that the opponents of capital punish­
ment are incorrect in their assertion that the death 
penalty is discriminatorily imposed upon the poor, or 
persons of the lowest socio-economic status, because 
with rare exceptions that punishment purportedly is 
meted out only to unskilled laborers.135

If petitioner were correct in his characterization of 
California’s death row population, it would prove little, 
for the greatest number of crimes for which death is 
deemed the appropriate punishment involve a killing 
for economic gain.186 To put it more bluntly, as some 
have more sagely observed wealthy persons do not 
customarily engage in the type of activity, such as hold­
ing up liquor stores, which so often results in the

184Gallup International Inc., Gallup Opinion Index 15 (Re­
port No. 45, March, 1969), reprinted in Erskine, The Polls: 
Capital Punishment, 34 Pub. Op. Q. 290, 292-94 (1970).

1SBSome commentators have viewed the allegedly less-advan­
taged background of those defendants sentenced to death as in­
dicative of affirmative jury discrimination in singling out such 
persons for the imposition of capital punishment. See Special Is­
sue, A Study of the California Penalty Jury in First-Degree Mur­
der Cases, 21 Stan. L. Rev. 1297, 1307, 1367, 1379, 1430-31 
(1969). Others have disputed this conclusion. Cf. Preface by H. 
Kalven, id., 1300-01 (“the authors risk being corrupted some­
what by their passion for turning their findings into constitu­
tional arguments against the death penalty”).

136Appendix to Respondent’s Brief; California Department of 
Corrections, Executions in California 1943 Through 1963 (Table 
30) (1965).



— l l O -

needless death of the victim and the fixing of the of­
fender’s punishment at death.187

In this day when commendabiy we provide counsel 
and transcripts and other incidents of a legal defense 
free of charge to those who cannot afford them, it is 
absurd to premise an attack on the death penalty 
on speculation that juries for some reason single out 
poor people for the extreme penalty.

Examination of the files of the California State 
Prison at San Quentin indicates that although a large 
number of prisoners under current sentence of death 
are unskilled laborers, the occupations indicated for 
such prisoners also include electronics technician, sales­
man, student, male nurse, warehouseman, food proc­
essor, postal investigator, machinist, butcher, secretary, 
television technician, security guard, typewriter repair­
man, psychiatric technical trainee, painter, longshore­
man, theater manager, blueprint reader, architect, ma­
chine operator, police officer, health spa manager, 
carpenter, mechanic, public relations, tailor, and pest 
control worker. Other studies confirm the impression 
that these individuals represent a broad cross-section

m “If statistics show that more poor persons are executed 
than rich persons, it could be because more poor than rich com­
mit murders. But it does not follow that they were executed be­
cause they were not competently and adequately defended. The 
simple fact is that rich people rarely commit murder. Obviously 
they need not commit armed robberies in order to obtain money. 
If a rich person kills another person, it is apt to be an impul­
sive act done in a fit of emotional upheaval without the wil­
fulness and premeditation required to support a murder first 
degree verdict or judgment.” Coakley, Capital Punishment, 1 Am. 
Crim. L. Q. 27, 34 (May, 1963). See also Report of New Jersey 
Commission to Study Capital Punishment 9 (October, 1964); 
Van Den Haag, Deterrence and the Death Penalty, 60 J. Crim. 
L. C. & P.S. 141, 142(n.4) (1969.)



— I l l —

of skilled and unskilled occupations.138 One study in­
dicates that the income level of those persons sentenced 
to death for murder, as well as of those actually exe­
cuted, is higher than that of the persons who received 
a sentence of life imprisonment for first degree mur­
der.139

Data on the education of California prisoners under 
sentence of death or awaiting new penalty trials is 
available in the files of all but five cases and indicates 
a median (and average) education of 10th grade.140 
Seven individuals have in excess of a 12th grade edu­
cation.

The foregoing dispels the myth that it is, with few 
exceptions, the uneducated defendant upon whom the 
death penalty is imposed. Although figures on the 
actual educational attainment of prisoners not under 
death sentence is unavailable, it is interesting to note 
that in California “the median grade achievement 
scores of the male felons newly received from court 
have been at the eighth grade level.”141

Respondent’s examination of the files disclosed that 
only fragmentary I.Q. data are available, mainly be­
cause a large number of prisoners refuse to be tested,

1885ee Einstoss, “Most Men on Death Row Are Skilled 
Workmen,” Los Angeles Times, Part II, p. 6 (May 26, 1967); 
California Department of Corrections, Executions in California 
1943 Through 1963 (Table 7) (1965); Coakley, supra at 34- 
35(n.l3).

139Coakley, supra.
li0See also California Department of Corrections, Execu­

tions in California 1943 Through 1963 (Table 5) (1965), in­
dicating that the greatest number of prisoners executed during 
the period covered were in the grade 9-11 range.

141Califorma Department of Corrections, California Prison­
ers— 1968, 36 (1969).



— 112—

but that such data ranged from a low of 70 I.Q. (two 
individuals) to a high of 136 (two individuals). A 
more complete sampling directed to the intelligence 
level of California prisoners executed between 1943- 
1963 (only one prisoner has been executed in the 
State since 1963) indicates that, in the 128 cases (out 
of the total 158) in which data was available, the vast 
majority (80.4%) came within the range of normal in­
telligence level with 8.6% borderline and 2.4% defec­
tive, and 7.0% superior and 1.6% very superior.142

Petitioner’s attack on the manner in which juries 
decide which murder defendants are to receive the death 
penalty was in essence answered by this Court’s 
opinion in McGautha v. California, 402 U.S. 183, and 
respondent will add only the observation that every 
one of the capital cases reviewed by the California 
Supreme Court since 1965 indicates the presence of at 
least one aggravating circumstance that would call for 
the death penalty under the standards of the Model 
Penal Code drafted by the American Law Institute and 
set forth as an appendix to the opinion in McGautha, 
supra at 222-25. See Appendix to Respondent’s Brief. 
Thus with respect to California there is no basis for 
petitioner’s assertion that juries may be arbitrarily im-

142California Department of Corrections, Executions in Cali­
fornia 1943 Through 1963 (Table 6) (1965). See also Report of 
New Jersey Commission to Study Capital Punishment 9 (Oc­
tober, 1964): “From all the information studied by the Commis­
sion so far as it affects the State of New Jersey, and from sim­
ilar information found for a number of states which have made 
studies, the Commission believes that the intellectual attainment 
of persons sentenced to death and executed is a rough cross- 
section of that of the prison population at large.”



— 113—

posing the death penalty where there is little justifica­
tion for it.143

Although the possibility of error is present whenever 
a decision between life and death must be made, 
Williams v. New York, 337 U.S, 241, 251-52, neither 
petitioner nor amici have called the attention of this 
Court to a single case in which an innocent defendant 
has been executed under the procedural safeguards 
available in our American system of justice144 at the 
trial, on appeal, and in clemency proceedings.145 But 
were such a miscarriage of justice to occur, it would, 
like the conviction of an innocent man in a non-capital 
case, suggest improvement of the foregoing procedures 
rather than abolition of the death penalty or the closing 
of our prisons.

14SParadoxically petitioner argues (Pet. Br. 6) that the small 
portion of murderers sentenced to death indicates arbitrariness 
in the determination of penalty. Undoubtedly if a large portion 
were to be sentenced to death, petitioner would argue that the 
failure of juries to distinguish among offenders and offenses 
amounted to cruel and unusual punishment. Respondent submits 
that the decision of juries to limit the supreme penalty to the 
most heinous of murders shows that juries are discriminating 
rather than discriminatory.

144The assertion at pages 20-21 of the brief of amici Nat’l 
Council of Churches of Christ, et al., that Caryl Chessman’s 
execution would have been barred by later judicial decisions re­
interpreting the elements of his crime (kidnaping) is untrue, 
since that reinterpretation was founded on a statutory amend­
ment effective long after Chessman was convicted, and .his case 
was properly decided under the law applicable at the time. 
See People v. Daniels, 71 Cal. 2d 1119, 1139 [459 P.2d 225, 
238] (1969).

li5See, e.g., Cal. Pen. Code. §§ 1181(6)(7), 1239(b), 4801, 
4812. Existing California statutes and case law indicate the truth 
of the statement, “Trials are more likely to be fair when life is at 
stake . . .” Van Den Haag, Deterrence and the Death Penalty, 60 
J. Crim. L. C. & P.S. 141, 142 (1969). See also Stein v. New 
York, 346 U.S. 156, 196.



— 114—

Nor have any but the most aberrant and isolated 
instances been shown involving individuals who kill in 
order to be killed by the state.

And the negligible rate of suicides by prisoners under 
sentence of death is not compared to the equally un­
known rate of suicides by prisoners serving terms of 
life imprisonment146 and may well be lower, bearing 
out the point of view of some that a true sentence 
of life without possibility of parole may be a punish­
ment more cruel than death.147

In short, petitioner has failed to demonstrate any­
thing arbitrary, discriminatory, or unfair in the manner 
in which the death penalty is imposed. Indeed it is 
evident that prisoners under sentence of death consti­
tute a strikingly representative cross-section of Califor­
nia’s criminal population.

E. Death Is Not a Cruel and Unusual Punishment for 
Petitioner, the Unrepentant Perpetrator of Three 
Known, Separate Murders Committed for Pecu­
niary Gain and Sexual Gratification

It remains only to consider briefly a few of the 
salient aspects of petitioner’s own case in relation to his 
claim that the death penalty for murder constitutes 
cruel and unusual punishment.

Initially one is confronted with the circumstance 
that on three separate occasions, petitioner wantonly

146In a recent seven-year period 195 prisoners in the cus­
tody of correctional and law enforcement agencies died as the 
known result of suicide in the State of California. California 
Bureau of Criminal Statistics, Death in Custody—California 
1962-1968 (Table III) 9 (1969).

147One defendant sentenced to death in 1958, and in 1960 
commuted to life without possibility of parole, committed suicide 
in 1964. California Department of Corrections, Executions in 
California 1943 through 1963 (Appendix V) (1965.)



— 115—

extinguished human life—first the life of Kathleen Nell 
Dodd and her five month-old male fetus, in a savage 
knife attack after he had raped and robbed her; second­
ly the life of Clyde I. Hardaway, in a sordid scene in 
which the victim was shot in the forehead as he kneeled 
to perform a sexual act upon petitioner; and thirdly the 
life of Mary Winifred Eaton, a woman in her sixties, 
whose age and previous befriending of petitioner was 
not enough to spare her from being raped and fatally 
stabbed by the venerrally-diseased petitioner. Added to 
these known murders is a host of violent felonious be­
havior going back to petitioner’s childhood and occur­
ring between repeated incarcerations and failures at 
rehabilitation. (R. 1375, 1966-67.) Even petitioner’s 
present counsel concede that his crimes were “ghastly” 
and “aggravated” and forego any “claim that if the 
death penalty can constitutionally be inflicted for any 
such crime [civilian and peacetime], it cannot be in­
flicted, upon this petitioner.” (Pet. Br. 4-5.)

There is no indication that petitioner’s race played a 
part in the decision of the trier of fact, a judge, to fix 
petitioner’s punishment at death. On the contrary, the 
trial judge’s findings (R. 4890-4992), set forth in part 
at pp. 29-34 infra, indicate a compassionate considera­
tion for petitioner’s not-very-disadvantaged background 
and race. These findings, made on evidence summarized 
at the outset of this brief, make it indisputably clear that 
petitioner was not sentenced to death because of his 
race or socio-economic background. He received an 
education, was considered intelligent and not in any 
way psychotic or mentally defective, and although 
usually unemployed was apparently so at his own choos­
ing, preferring to live off the hard-earned money of his 
elderly mother, who did housework for a living. As



—116—

indicated in the findings of the trial court (R. 4900-01, 
infra p. 32), petitioner had the opportunity to emu­
late the commendable accomplishments of his two sis­
ters. (R. 4604.)

Petitioner received an abundance of due process in 
excess of anything required by the Constitution. Two 
attorneys (whose competence the court recognized) 
were appointed to represent him, a third was appointed 
to consult with him on a limited basis, and $1850.00 
was allowed defense counsel as expenditures for in­
vestigation, psychiatric diagnosis, and medical tests. 
Also granted were petitioner’s motions for discovery 
of the prosecution’s evidence.148 Yet the defense was 
unable to produce any evidence indicating insanity or 
diminished mental capacity on petitioner’s part.

Only a wealthy man could have afforded such a 
trial which, excluding pretrial and sentencing proceed­
ings, extended with some interruptions from November 
24, 1965, to March 16, 1966. (R., Cl, Tr. II, pp. 
115, 274.) And can it for a moment be imagined that 
had petitioner been Caucasian, college-educated, and 
professionally employed, these circumstances would 
have caused the trier of fact to sentence petitioner to 
only life imprisonment in the face of petitioner’s un­
repentant attitude toward three brutal slayings and an 
assortment of other violent offenses? Particularly signifi­
cant is petitioner’s callous bragging to other inmates 
about the murders and petitioner’s statement, while 
awaiting trial on the present charges, to a fellow inmate, 
that “if they can’t get him out of that county jail, he was 
going to kill someone else.” (R. 1133.) This demon­
strates the validity of the conclusion, reached by the

i« (R ., Cl. Tr. I, pp. 4, 6, 20; Cl. Tr. II, pp. 115, 269-70; 
Cl. Tr. Ill, pp. 3, 19; R. 3373.)



— 1 1 7 -

psychiatrists and the psychologist, that the likelihood 
that petitioner, a person without mental disorders, 
would ever be rehabilitatable was very slight. (See pp. 
24-26, infra.) There certainly can be little doubt 
as to whether petitioner would kill again if paroled 
from a life sentence.

Finally, are petitioner and the other prisoners under 
sentence of death truly the “friendless?” (Pet. Br. 54.) 
Aside from all that was accorded petitioner at his trial 
and on appeal in the California Supreme Court, such 
an assertion has a hollow if not ironic ring on the basis 
alone of petitioner’s having 14 counsel of record in the 
present proceedings before this Court, quantitatively 
dwarfing the resources of the State,149 in addition to 
his having the support of nine briefs amici curiae on 
behalf of a multitude of individuals and organizations.

Clearly the death penalty is not cruel and unusual 
punishment, either as a general proposition or as im­
posed under the particular facts of petitioner’s case.

CONCLUSION

In an era characterized by rising crime rates, mass 
killings, inmate homicides, revolutionary bombings of 
public buildings, and the assassination of political 
leaders and law enforcement officers,150 it would be 
highly inappropriate for a legislature to contravene the 
will of the people by abolishing capital punishment, 
let alone for this Court under the aegis of the Eighth

U9See also Maxwell v. Bishop, 398 F.2d 138, 141 (8th Cir. 
1968), vot'd, 398 U.S. 262.

150The number of law enforcement officers murdered in the 
United States rose from 37 in 1961 to 100 in 1970. Federal 
Bureau of Investigation, Uniform Crime Reports— 1970, 44 
(August 31, 1971.)



-118 -

Amendment to decree that this form of punishment, 
expressly sanctioned by the wording of the Constitu­
tion and a long line of decisions by this Court, is now 
forbidden to the people of the various States.

A justice of the California Supreme Court once 
noted,

“Probably all of us who have thought on the sub­
ject—and particularly those of us who have some re­
sponsibility in these cases (even as remote as it is at 
the appellate level)-—devoutly wish that the death 
penalty were no longer necessary. But we have not yet 
reached the state which Sir Thomas More envisioned 
..  .[of] a Utopian government.”151

As Justice Harlan stated for the Court in McGautha 
v. California, 402 U.S. 183, the Court’s “function is not 
to impose on the States, ex cathedra, what might seem 
to us a better system for dealing with capital cases. 
Rather, it is to decide whether the Federal Constitution 
proscribes the present procedures . . .  in these cases.” 
Id., 195-196. “ [T]he question for decision is not 
whether we personally approve the procedures followed 
. . . The question is whether those procedures fall be­
low the minimum level the Fourteenth Amendment will 
tolerate.” Spencer v. Texas, 385 U.S. 554, 569 (Stew­
art, J., concurring.)

Respondent earnestly maintains that nothing has 
happened in the 180-year history of the Constitution, 
or in the 300-year history of the imposition of capital 
punishment in this nation, which can alter the fact of 
the Framers’ contemplation of the death penalty as a

151People v. Love, 56 Cal. 2d 720, 745 [366 P.2d 33, 47] 
(1961) (Schauer, J., dissenting).



— 119-

form of punishment of necessity available to the States 
for the protection of society. It is therefore urged that 
the judgment of the California Supreme Court, uphold­
ing petitioner’s judgment of conviction imposing the 
death penalty, be affirmed in its entirety.

Respectfully submitted,
E velle J. Younger,

Attorney General of the 
State of California,

W illiam  E. James,
Assistant Attorney General of 

the State of California,
R onald M. George,

Deputy Attorney General of 
the State of California,
Attorneys for Respondent.



APPENDIX.
TABLE H.

Defendants Under Sentence of Death 
Reviewed by the California Supreme Court 1965-1971.la

C O LLA TER A L A TTA C K S W H E R E  
PE R IO D  D IR E C T  A PPEA LS O R D E R  T O  SH OW  CA U SE ISSU ED

W rit G ran ted—
D eath  Penalty, D eath  Penalty,

Conviction, Conviction,

T otal
A ffirm ed in 

E ntirety
or Both 

Set Aside
W rit

D enied
o r Both 

Set Aside

Sept 1 Sept 1 
1965 - 1967 50 25(50% ) 25(50% ) 0 4

Sept 1 Sept 1 
1967- 1971 60 19(32%) 41(68% ) 0 15

Total
Sept 1 Sept 1 

1965 - 1971 110 44(40% ) 66(60% ) 0 19

I CAPITAL CASES REVIEWED BY THE CALI­
FORNIA SUPREME COURT BETWEEN SEP­
TEMBER 1, 1965, AND SEPTEMBER 1, 1967

A. Direct Appeals Affirmed in Entirety
People v. Jacobson, 63 Cal. 2d 319 (1965) [405 

P. 2d 555] (premeditation and exceptional heinousness

laSome defendants appear in this table more than once in 
that their judgment imposing the death penalty was considered 
in successive proceedings by the court. Defendant Gilbert in 
People v. Gilbert, 63 Cal. 2d 690, appears in one instance as 
both an affirmance and a reversal due to the fact that in a single 
proceeding one count imposing the death penalty was reversed 
and another such count affirmed. The cases comprising this 
table are collected below, with references to which theory, or 
which felony under the felony-murder rule, formed the basis for 
fixing the murder in the first degree. Other distinguishing fea­
tures of the offense particularly pertinent to the determination 
of penalty are also indicated. In approximately 5% of the cases 
jury trial was waived and the issue of penalty tried to the court.

The vast majority of these 129 cases involves the offense of 
first-degree murder, and the remaining few involve the offenses 
of kidnapping for gain with bodily harm or assault with a deadly 
weapon or with force likely to produce great bodily injury, by a 
prisoner under life sentence. Cal. Penal Code, §§ 187, 209, 
4500.



- 2 -

—drowning of 21-month-old child; commuted by Gover­
nor in 1966); People v. Cotter, 63 Cal. 2d 386 (1965) 
[405 P. 2d 862] (robbery; commuted by Governor 
in 1966); People v. Mathis, 63 Cal. 2d 416 (1965) 
[406 P. 2d 65] (robbery); People v. Gilbert,2a 63 Cal. 
2d 690 (1965) [408 P. 2d 365], vac’d, 388 U.S. 263 
(robbery, victim police officer); People v. Smith, 63 
Cal. 2d 779 (1966) [409 P. 2d 222] (burglary, double 
murder, both victims police officers); People v. Mitchell, 
63 Cal. 2d 805 (1966) [409 P. 2d 211] (robbery, 
victim police officer) [defendant sole person to be 
executed in California from 1964 to the present]; 
People v. La Vergne, 64 Cal. 2d 265 (1966) [411 
P. 2d 309] (robbery); People v. Anderson, 64 Cal. 
2d 633 (1966) [414 P. 2d 366] (robbery, and attempt 
to kill two police officers and a fourth victim); People 
v. Talbot, 64 Cal. 2d 691 (1966) [414 P. 2d 633] 
(robbery, mutilation); People v. Reeves, 64 Cal. 2d 
766 (1966) [415 P. 2d 35] (robbery, and attempt to 
murder a second victim, court trial); People v. Seiterle, 
65 Cal. 2d 333 (1966) [420 P. 2d 217] (robbery, 
double murder); People v. Roberts, 65 Cal. 2d 514
(1966) [421 P. 2d 420] (robbery); People v. Thomas, 
65 Cal. 2d 698 (1967) [423 P. 2d 233] (arson and 
exceptional heinousness—molotov cocktail thrown into 
bedroom of three-year-old victim; commuted by Gover­
nor in 1967); People v. Tahl, 65 Cal. 2d 719 (1967) 
[423 P. 2d 246] (robbery, double murder, subsequent 
murder, subsequent attempt to kill fourth person, and 
statement of intention to kill fifth person); People v. 
Saterfield, 65 Cal. 2d 752 (1967) [423 P. 2d 266] 
(premeditation, double murder, prior murder convie-

2aThis case is listed twice, as an affirmance as to one murder 
count and as a reversal as to the other murder count.



—3—

tion); People v. Arguello, 65 Cal. 2d 768 (1967) 
[423 P. 2d 202] (robbery, exceptional heinousness— 
82-year-old victim beaten to death with brick and ham­
mer); People v. Hillery, 65 Cal. 2d 795 (1967) [423 
P. 2d 208] (rape of 15-year-old victim); People v. 
Sanchez, 65 Cal. 2d 814 (1967) [423 P. 2d 800] 
(murder of civilian prison employee by prisoner serving 
life sentence); People v. Eli, 66 Cal. 2d 63 (1967) 
[424 P. 2d 356] (rape); People v. Lookadoo, 66 Cal. 
2d 307 (1967) [425 P. 2d 208] (robbery and excep­
tional heinousness—setting live victim on fire with 
burning gasoline, court trial; commuted by Governor in 
1966); People v. Hines, 66 Cal. 2d 348 (1967) [425 
P. 2d 557] (robbery); People v. Hill & Saunders, 
66 Cal. 2d 536 (1967) [426 P. 2d 908] (robbery, 
second murder attempted, two capital defendants); 
People v. Modesto, 66 Cal. 2d 695 (1967) [427 P. 
2d 788] (double murder, exceptional heinousness— 
committing sexual acts upon,8a and beating to death, 
nine and twelve-year-old victims with sledgehammer, 
prior murder); People v. Massie, 66 Cal. 2d 899
(1967) [428 P. 2d 869] (robbery, second murder at­
tempted, court trial).

B. Direct Appeals Reversed as to Death Penalty, Con­
viction, or Both

People v. Anderson, 63 Cal. 2d 351 (1965) [406 
P. 2d 43] (premeditation, sexual acts upon ten-year 
old female victim); People v. Price, 63 Cal. 2d 370
(1965) [406 P. 2d 55] (robbery, double murder, both

3:1 Rape, sodomy, sexual perversion, and other sexual offenses 
punishable under the California Penal Code, when committed 
upon a child under the age of fourteen, are punishable under 
section 288 of the code as the separate offense of lewd or lascivi­
ous acts upon the body of a child under the age of fourteen.



4

victims police officers); People v. Polk & Gregg, 63 
Cal. 2d 443 (1965) [406 P. 2d 641] (robbery, hein­
ous mutilation of victim, and evidence of prior homi­
cides by one of the two capital defendants); People v. 
Luker, 63 Cal. 2d 464 (1965) [407 P. 2d 9] (rob­
bery); People v. Stockman, 63 Cal. 2d 494 (1965) 
[407 P. 2d 277] (robbery); People v. Arguello, 63 
Cal. 2d 566 (1965) [407 P. 2d 661] (robbery, ex­
ceptional heinousness— 82-year-old victim beaten to 
death with brick and hammer); People v. Gilbert, 63 
Cal. 2d 690 (1965) [408 P. 2d 365] (robbery); 
People v. Ketchel & Sears, 63 Cal. 2d 859 (1966) 
[409 P. 2d 694] (robbery, victim police officer, two 
capital defendants); People v. Treloar, 64 Cal. 2d 141
(1966) [410 P. 2d 620] (robbery); People v. Ford, 
65 Cal. 2d 41 (1966) [416 P. 2d 132] (robbery, 
premeditation, victim police officer); People v. Butler,
65 Cal. 2d 569 (1967) [421 P. 2d 703] (robbery); 
People v. Goedecke, 65 Cal. 2d 850 (1967) [423 
P. 2d 777] (premeditation, quadruple murder); Peo­
ple v. Nicolaus, 65 Cal. 2d 866 (1967) [423 P. 2d 
787] (premeditation, triple murder); People v. Spen­
cer, 66 Cal. 2d 158 (1967) [424 P. 2d 715] (rob­
bery, second murder attempted); People v. Griffin, 66 
Cal. 2d 459 (1967) [426 P. 2d 507] (rape); People 
v. Gonzales, 66 Cal. 2d 482 (1967) [426 P. 2d 929] 
(robbery, second murder attempted); People v. Pen­
nington, 66 Cal. 2d 508 (1967) [426 P. 2d 942] 
(double murder and sexual acts upon a female murder 
victim under the age of fourteen); People v. Bandhauer,
66 Cal. 2d 524 (1967) [426 P. 2d 900] (robbery); 
People v. Wilson, 66 Cal. 2d 749 (1967) [427 P. 2d 
820] (premeditation, double murder); People v. Var- 
num, 66 Cal. 2d 808 (1967) [427 P. 2d 772] (rob-



—5—

bery); People v. Powell & Smith, 67 Cal. 2d 32
(1967) [429 P. 2d 137] (premeditation, double mur­
der, both victims police officers, two capital defend­
ants); People v. Jackson, 67 Cal. 2d 96 (1967) [429 
P. 2d 600] (rape, offense committed only a few days 
after defendant’s release from nine-year prison term, 
court trial).

C. Writs Denied After Issuance of Order to Show 
Cause
None.

D. Writs Granted Setting Aside Death Penalty, 
Conviction, or Both

In re Spencer, 63 Cal. 2d 400 (1965) [406 P. 2d 
33] (robbery); In re Varnum, 63 Cal. 2d 629 (1965) 
[408 P. 2d 97] (robbery); In re Pike, 66 Cal. 2d 170
(1967) [424 P.2d 724] (robbery, victim police of­
ficer); In re Shipp, 66 Cal. 2d 721 [427 P. 2d 761] 
(robbery, victim killed for 10^).

II CAPITAL CASES REVIEWED BY THE CALI­
FORNIA SUPREME COURT BETWEEN SEP­
TEMBER 1, 1967, AND SEPTEMBER 1, 1971

A. Direct Appeals Affirmed in Entirety 
People v. Lara, 61 Cal. 2d 365 (1967) [432 P.2d 

202] (robbery); People v. Beivelman, 70 Cal. 2d 60
(1968) [447 P.2d 913] (robbery and exceptional 
heinousness—-victim beaten to death with hammer); 
People v. Durham & Robinson, 70 Cal. 2d 171
(1969) [449 P.2d 198] [Robinson sole capital de­
fendant] (robbery, defendant parole escapee, victim 
police officer); People v. Aikens, 70 Cal. 2d 369 
(1969) [450 P.2d 258] (rape and robbery, double 
murder, prior murder, court trial) [the case at bar];



— 6 — -

People v. Varnum, 70 Cal. 2d 480 (1969) [450 P.2d 
553] (robbery); People v. Hill, 70 Cal. 2d 678 (1969) 
[452 P.2d 329] (robbery, rape, and sodomy upon preg­
nant victim); People v. McGuatha, 70 Cal. 2d 770 
(1969) [452 P.2d 650] (robbery, prior murder); People 
v. Tolbert, 70 Cal. 2d 790 (1969) [452 P. 2d 661] 
(rape and sodomy); People v. Coogler, 71 Cal. 2d 153 
(1969) [454 P.2d 686] (robberies, double murders); 
People v. Nye, 71 Cal. 2d 356 (1969) [455 P.2d 395] 
(robbery and rape, exceptional heinousness-—victim 
stabbed 37 times); People v. Mabry, 71 Cal. 2d 430 
(1969) [455 P.2d 759] (burglary, victim police of­
ficer, several prior felony convictions including prison 
escape); People v. Miller, 71 Cal. 2d 459 (1969) [455 
P.2d 377] (commission of sexual acts upon eight- 
year-old victim); People v. Pike, 71 Cal. 2d 595 
(1969) [455 P.2d 776] (robbery, victim police of­
ficer); People v. Robles, 71 Cal. 2d 924 (1969) [458 
P.2d 67] (robbery and premeditation); People v. 
Floyd & Milton, 1 Cal. 3d 694 (1970) [464 P.2d 64] 
(robbery of municipal bus driver, two capital defend­
ants); People v. King, 1 Cal. 3d 791 [463 P.2d 753] 
(robbery); People v. Terry, 2 Cal. 3d 362 (1970) 
[466 P.2d 961] (robbery and exceptional heinousness 
—pharmacist stabbed 17 times with scissors and shot 
four times); People v. Archerd, 3 Cal. 3d 615 (1970) 
[477 P.2d 421] (murder of six persons by insulin in­

jections. )

B. Direct Appeals Reversed as to Death Penalty, 
Conviction, or Both

Peope v. Bassett, 69 Cal. 2d 122 (1968) [443 
P.2d 777] (premeditation, double murder); People v. 
McDowell, 69 Cal. 2d 737 (1968) [447 P.2d 97]



—7—
(robbery); People v. White, 69 Cal. 2d 751 (1968) 
[446 P. 2d 993] (robbery and rape); People v. 
Chacon & Noah, 69 Cal. 2d 765 (1968) [447 P.2d 
106] (near-fatal assault by prisoners serving life 
terms, numerous prior felonies committed by each of 
the two capital defendants, including murder by one 
and assault with a deadly weapon on a police officer 
by another); People v. Anderson, 70 Cal. 2d 15
(1968) [447 P.2d 942] (premeditation, sexual acts 
upon ten-year-old female victim); People v. Risenhoov- 
er, 70 Cal. 2d 39 (1968) [447 P.2d 925] (robbery 
and premeditation); People v. Bradford, 70 Cal. 2d 
333 (1969) [450 P.2d 46] (premeditation and excep­
tional heinousness—death caused by pouring sulphuric 
acid on victim); People v. Terry, 70 Cal. 2d 410
(1969) [454 P.2d 36] (robbery, victim police offi­
cer); People v. Teale, 70 Cal. 2d 497 (1969) [450 
P.2d 564] (robbery); People v. Sanchez, 70 Cal. 2d 
562 (1969) [451 P.2d 74] (murder of civilian prison 
employee by prisoner serving life term); People v. 
Fain, 70 Cal. 2d 588 (1969) [451 P.2d 65] (rape 
and sex perversion, with prior rape and prior attempted 
rape); People v. Morse, 70 Cal. 2d 711 (1969) 
[452 P.2d 607] (premeditation, while awaiting sen­
tencing on retrial for two capital murders defendant 
killed fellow prisoner who owed him cigarettes); 
People v. Osuna & Gorman, 70 Cal. 2d 759 (1969) 
[452 P.2d 678] (robbery, two capital defendants); 
People v. Goodridge, 70 Cal. 2d 824 (1969) [452 
P.2d 637] (rape and sodomy, committed probably 
after victim’s death, 107 stab wounds); People v. 
Graham. & Shepard, 71 Cal. 2d 303 (1969) [455 
P.2d 153] [Shephard only capital defendant] (rob­
bery); People v. O’Brien, 71 Cal. 2d 394 (1969)



8-

[456 P.2d 969] (robbery, victim police officer); 
People v. Vaughn, 71 Cal. 2d 406 (1969) [455 P.2d 
122] (assault on prison guard by prisoner serving life 
sentence, defendant having previously killed three fel­
low prisoners); People v. Quiche, 71 Cal 2d 502 
(1969) [455 P.2d 787] (premeditation and excep­
tional heinousness—subsequent sexual intercourse with 
victim’s corpse); People v. Williams, 71 Cal 2d 614 
(1969) [456 P.2d 633] (robbery, strangulation);
People v. Ketchel, 71 Cal. 2d 635 (1969) [456 P.2d 
660] (robbery, victim police officer); People v. 
Schader, 71 Cal. 2d 761 (1969) [457 P.2d 841] (rob­
bery, victim police officer); People v. McClellan, 71 
Cal. 2d 793 (1969) [457 P.2d 871] (robbery, double 
murder); People v. Stanworth, 71 Cal. 2d 820 (1969) 
[457 P.2d 889] (rape, double murder of 14 and 15- 
year-old girls, with numerous other prior and subse­
quent acts of rape, sexual perversion, and robbery); 
People v. Gardner, 71 Cal. 2d 843 (1969) [457 P.2d 
575] (robbery); People v. Washington, 71 Cal. 2d 
1061 (1969) [458 P.2d 479] (arson, three other 
murders attempted, exceptional heinousness — defend­
ant poured gasoline into children’s bedroom and lit it, 
17 month-old victim dying two weeks later); People 
v. Daniels & Simmons, 71 Cal. 2d 1119 (1969) [459 
P.2d 225] (three counts against two capital defendants 
of kidnaping for gain with bodily harm, each in the 
vicinity of a university campus and involving rape, and 
one involving sexual perversion; prior rapes and prior 
kidnaping); People v. Coleman, 71 Cal. 2d 1159 
(1969) [459 P.2d 248] (robbery); People v. Wash­
ington, 71 Cal. 2d 1170 (1969) [459 P.2d 259] 
(robbery); People v. Brawley & Baker, 1 Cal. 3d 
277 (1969) [461 P.2d 361] (robbery, two capital



—9—

defendants); People v. Mosher, 1 Cal. 3d 379 (1969) 
[461 P.2d 659] (robbery and rape); People v. Wilson 
1 Cal. 3d 431 (1969) [462 P.2d 22] (premeditation, 
double murder); People v. St. Martin, 1 Cal. 3d 524
(1970) [463 P.2d 390] (fatal assault on prisoner by 
another prisoner serving a life term for a previous 
murder and robbery); People v. Bandhauer, 1 Cal 3d 
609 (1970) [463 P.2d 408] (robbery); People v. 
MacPherson, 2 Cal. 3d 109 (1970) [465 P.2d 17] 
(robbery); People v. Robles, 2 Cal. 3d 205 (1970) 
[466 P.2d 710] (murder, premeditated and fatal as­
sault on prisoner by another prisoner serving a life 
term for prior murder and assault with intent to com­
mit murder); People v. Tidwell (William), 3 Cal. 3d 
62 (1970) [473 P.2d 748] (robbery, triple murder); 
People v. Tidwell (Robert), 3 Cal. 3d 82 (1970) 
[473 P.2d 762] (robbery, triple murder).

C. Writs Denied After Issuance of Order to Show 
Cause

None.

D. Writs Granted Setting Aside Death Penalty, 
Conviction, or Both

In re Anderson & Saterfield, 69 Cal. 2d 613 (1968) 
[447 P.2d 117] (as to Anderson: robbery, and at­
tempt to kill two police officers and a fourth victim; 
as to Saterfield: premeditation, double murder, prior 
murder conviction); In re Mathis, 70 Cal. 2d 467 
(1969) [450 P.2d 290] (robbery); In re Morse, 70 
Cal. 2d 702 (1969) [452 P.2d 601] (premeditation, 
double murder); In re Arguello, 71 Cal. 2d 13 (1969) 
[452 P.2d 921] (robbery, exceptional heinousness— 
82-year-old victim beaten to death with brick and 
hammer); In re Eli, 71 Cal. 2d 214 (1969) [454 P.2d



10—

337] (rape); In re Seiterle, 71 Cal. 2d 698 (1969) 
[456 P.2d 129] (robbery, double murder); In re 
Hillery, 71 Cal. 2d 857 (1969) [457 P.2d 565] (rape 
of 15-year-old victim); In re Hill & Saunders, 71 Cal. 
2d 997 (1969) [458 P.2d 449] (robbery, second 
murder attempted, two capital defendants); In re Tahl, 
1 Cal. 3d 122 (1969) [460 P.2d 449] (robbery, 
double murder, subsequent murder, subsequent attempt 
to kill fourth person, and statement of intention 
to kill fifth person); In re Kemp, 1 Cal. 3d 190 (1969) 
[460 P.2d 481] (rape, with rapes of two other victims); 
In re Lara, 1 Cal. 3d 486 (1969) [462 P.2d 380] 
(robbery); In re Roberts, 2 Cal. 3d 892 (1970) [471 
P.2d 481] (robbery); In re Saunders, 2 Cal. 3d 1033 
(1970) [472 P.2d 921] (robbery, second murder 
attempted).



Service of the within and receipt of
thereof is hereby admitted this...............
of September A.D. 1971.

a copy 
..... day

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