Greenberg, Jack; and Others, 1995, undated - 108 of 114

    3

No. 87-

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1987

JOSE MARTINEZ HIGH, 

Petitioner,
v .

RALPH KEMP, Warden, 
Georgia Diagnostic and 
Classification Center,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

i

Bradley S. Stetler 
Office of Public Defender 
127 Pine Street Burlington, Vermont 05401 
(802) 863-6323

Michael C. Garrett 
412 Greene Street 
Augusta, Georgia 30901 
(404) 724-1896

Counsel for petitioner



-»

QUESTIONS PRESENTED

1. Whether the execution of a youth under the age of 

eighteen at the time of the offense violates evolving standards 

of decency and is cruel and unusual punishment under the Eighth 

and Fourteenth Amendments to the United States Constitution?

2. Whether a death sentence imposed upon a youth under the 

age of eighteen by a jury unaware that the defendant was under 
age eighteen is unconstitutionally arbitrary under the Eighth and 

Fourteenth Amendments to the United States Constitution?

3. Whether Batson v. Kentucky, ___ U.S. __, 106 S.Ct. 1712

(1986)', should be given full retroactive effect in capital cases 

given the unigue role of capital juries in the sentencing 

process?

4

1



TABLE OF CONTENTS

Page

Questions Presented ..........................
Table of Contents ......................
Table of Authorities .................
Citation to Opinion Below
Jurisdiction •
Constitutional Provisions Involved . . . .
Statement of the Case
Statement of the Facts . . . .
Reasons for Granting the Writ ..................

I. Certiorari Should Be Granted To Decide
Whether The Cruel and Unusual Punishment 
Clause Of The Eighth Amendment Proscribes 
Executing A Youth Under The Age Of Eighteen 
At The Time Of The Offense

II. Certiorari Should Be Granted To Decide
Whether It Is Unconstitutionally Arbitrary 
For A Jury To Impose A Death Sentence On 
A Youth Without Knowing He Was Under Age 
Eighteen At The Time Of The Offense

III. Certiorari Should Be Granted To Decide 
Whether Batson v. Kentucky Should 
Be Given Full Retroactive Effect in 
Capital Cases ......................

Conclusion 

Append ix

1 

i i
i i i 

1 

1 

1
2

4

5

6

11

14

17

la

ii



TABLE OF AUTHORITIES

*

Cases

Allen v. Hardy, ___ U.S. ___,
106 S.Ct. 2878 (1986) .................

Batson v. Kentucky, ___ U.S. ___,
106 S.Ct. 1712 (1986) .................

Belott-i v. Baird, 443 U.S. 622 (1979)

Coker v. Georgia, 433 U.S. 584 (1977)

Eddings v. Oklahoma, 455 U.S. 194 (1982) .

Enmund v. Florida, 458 U.S. 782 (1982)

Furman v. Georgia, 408 U.S. 238 (1972)

Goss v. Lopez, 419 U.S. 565 (1975)

Gregg v. Georgia, 428 U.S. 153 (1976)

Griffith v. Kentucky, ___ U.S. ___,
107 S.Ct. 708 (1987) . . . .

Hiqh v. State, 247 Ga. 289, 278 S.E.2d 5
(1981), cert. denied, 455 U.S. 927 (1982)

High v. Georgia, 250 Ga. 693, 300 S.E.2d 654
(1983) , cert. denied, __  U.S. ___
(1984) .................

High v. Kemp, 623 F. Supp. 316 (D. Ga. 1985)

High v. Kemp, ___ F .2d ___ (11th Cir. June 4,

Jurek v. Texas, 428 U.S. 262 (1976)

Lockett v. Ohio, 438 U.S. 586 (1978)
People v. Wheeler, 583 P.2d 748 (Cal. 1978)

Skipper v. South Carolina, ___ U.S. ___,
106 S.Ct. 1669 (1986) . . . .

Songer v. Wainwright, 769 F.2d 1488 
(11th Cir. 1985) (en banc)

Thompson v. Oklahoma, ___ U.S. ___, 107
S.Ct. 1084 (1987) . . . .

1987)

Turner v. Murray, ___ U.S. ___,
106 S.Ct. 1683 (1986) .................

Trop v. Dulles, 356 U.S. 86 (1958)

Wil1 jams v. Oklahoma, 3! 8 U.S. 576 (1959)

Witherspoon v. Illinois, 391 U.S. 510 (1968) .

Woodson v. North Carolina, 428 U.S. 280 (1976)

Page

14

5, 14-17 

6 

6

11 , 12

6, 13 

12 

6

12

14

3

3

3

4

12

12, 16

16

7, 12

16

8, io'

14, 15

6

12

16

11

iii



Constitutional Provisions
Eighth Amendment to the United States Constitution 
Fourteenth Amendment to the United States Constitution

Statutes
Gel • Code A n n . 15-12-60 (1985) • • • • • •

G <3 • Code Ann. 16-12-58 (1984) • • • •

Gel • Code A n n . 16-12-103 (1984)

Gci • Code Ann. 17-9-3 (1982)

Gci • Code A n n . 19-3-37 (1982)

Ga • Code Ann. 39-1-1 (1982)

Ga • Code A n n . 39-9-2 (1985)

Ga • Code A n n . 40-5-26 (1985)

Ga • Code A n n . 43-8-10 (1984) •

Other Authorities
Darrow, Legal Infants in the Electric Chair,

The Literary Digest 121 (March 1936)
S. Davis, Rights of Juveniles: The Juvenile Justice 

System, App. B (1986) ..................
Kasterbaum, "Time and Death in Adolescence," in Feifel, 

ed., The Meaning of Death (1959)

Mennel, "Origins of Juvenile Courts: Changing 
Pex =oectives and Legal Rights of Juvenile 
Delinqaents" 18 Crime and Delinquency 68 (1972)

B . Peel, The Nature of Adolescent Judgment 153 (1971)

Streib, "Persons On Death Row As Of September 
1985 For Crimes Committed While Under Age 
Eighteen: .Updated Data From Continuing Research" 
(unpublished) (1985) ..........................

Streib, "Death Penalty for Children: The American 
Experience With Capital Punishment For Crimes 
Committed While Under Age Eighteen,"
36 Okla. L. Rev. 613 (1983) ......................

Streib, "The Eighth Amendment and Capital Punishment 
of Juveniles," 34 Clev. St. L. Rev. 363 (1987)



No. 87-
IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1987

JOSE MARTINEZ HIGH, 
Petitioner,

v .
RALPH KEMP, Warden, 

Georgia Diagnostic and 
Classification Center,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

’ FOR THE ELEVENTH CIRCUIT

Petitioner, Jose Martinez High, respectfully prays that a 

writ of certiorari issue to review the judgment of the United 

States Court of Appeals for the Eleventh Circuit in High v. Kemp, 

F .2d ___ (June 4, 1987).

CITATION TO OPINION BELOW

The opinion of the Court of Appeals, rendered on June 4,

1987, is attached to this petition at la.

JURISDICTION

Jurisdiction of this Court is invoked under 18 U.S.C. sec.
of the United States Court of Appeals for1254(1). The opinion



the Eleventh Circuit was rendered on June 4, 1987. The United 

States Court of Appeals entered an order denying a petition for 

rehearing and suggestion for rehearing en banc on August 20, 
1987. It is attached at 12a. On petitioner's motion the United 

States Court of Appeals has stayed until October 10, 1987, the 

issuance of the mandate pending application for writ of 

certiorari to this Court.

CONSTITUTIONAL PROVISIONS INVOLVED
This case involves the Eighth and Fourteenth Amendments to 

the United States Constitution.
The Eighth Amendment provides:

Excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and unusual 
punishments inflicted.

The Fourteenth Amendment provides in pertinent part:

[N]or shall any State deprive any person of 
life, liberty, or property, without due process 
of law . . .

STATEMENT OF THE CASE

Petitioner, Jose Martinez High, was convicted by a jury in 

the Superior Court of Taliaferro County, Georgia, on December 1, 

1978, of one count of capital murder, armed robbery, two counts 
of kidnapping, aggravated assault and possession of a firearm. 

That day he was sentenced to death by electrocution for the 

offenses of murder, armed robbery and two counts of kidnapping 

and to consecutive periods of imprisonment for the other two 

offenses.
The Supreme Court of Georgia affirmed petitioner's 

conviction and sentence of death for murder on February 24,
1981. The Court set aside the death sentences for kidnapping and 

armed robbery and vacated the sentences for possession of a

2



firearm and aggravated assault. High v. State, 247 Ga. 289, 278 

S.E.2d 5 (1981). The Supreme Court of the United States denied 

the"petition for writ of certiorari, with Mr. Justice Marshall 

and Mr. Justice Brennan dissenting, on January 25, 1982. High v. 

Georgia, 455 U.S. 927 (1982) .
On June 24, 1982, petitioner sought a writ of habeas corpus 

from the Superior Court of Butts County, Georgia, On June 25, 
1982, the Superior Court denied the petition without argument or 

evidentiary hearing. On June 30, 1982, the Supreme Court of 

Georgia granted petitioner's application for certificate of 
probable cause to appeal, reversed the dismissal of the petition 

and remanded the case to the Superior Court for further 

proceedings.
The Superior Court held an evidentiary hearing on August 12, 

1982, and thereafter dismissed the petition on September 10,

1982. The Supreme Court of Georgia granted petitioner's second 

application for certificate of probable cause, held oral 
argument, and thereafter affirmed the dismissal of the petition 

on March 1, 1983. High v. Georgia, 250 Ga. 693, 300 S.E.2d 654 

(1983) . The Supreme Court of the United States denied certiorari 

on May 29, 1984, with Mr. Justice Marshall and Mr. Justice 

Brennan dissenting.
Petitioner then sought habeas corpus relief in the United 

States District Court for the Southern District of Georgia on 

February 11, 1985. That court granted a stay of execution and 

conducted a hearing on July 2, 1985. The District Court entered 

judgment on November 19, 1985, setting aside the sentence of 
death due to faulty jury instructions on the nature and function 
of mitigating circumstances, but denying relief as to 
petitioner's convictions. High v. Kemp, 623 F.Supp. 316 (D. Ga.

:i 1985) .
Both petitioner and the respondent warden filed notices of 

appeal. The United States District Court granted petitioner's 

application for certificate of probable cause to appeal in forma

3



i

pauperis on December 20, 1985. A panel of the United States 

Court of Appeals for the Eleventh Circuit reversed the grant of 

habeas relief, thereby reinstating the death sentence, but 

otherwise affirmed the denial of relief as to petitioner's

convictions. High v. Kemp, ___ F .2d ___ (June 4, 1987).
Petitioner's petition for rehearing en banc was denied on August

20, 1987.

STATEMENT OF FACTS
Petitioner was age 17 and an 11th grade student at the 

Richmond Academy in Augusta, Georgia, at the time of this 
offense. He had no prior criminal record and lived with his 
parents in Augusta. Prior to trial, petitioner's attorney had 
not interviewed his teachers, counselors, neighbors or friends 

and thus offered no evidence at the penalty phase of the trial 
even though subsequent post-conviction proceedings demonstrated 

there was a wealth of penalty phase evidence available had a 
diligent sentencing investigation been undertaken by counsel.

The jur.y was not made aware, either through evidence or argument, 

of the age or school status of the boy it sentenced to death.

The offense involved an interracial murder, a black 

defendant and a white victim. During voir dire thirty-two 
prospective black jurors were excused from the panel due to their 
conscientious objection to capital punishment. The prosecutor 
then exercised ten peremptory challenges, utilizing nine of those 

strikes against blacks. Six of those nine voiced no opinion or 
had any interaction with the Court during voir dire. By motion, 
defense counsel challenged the state's use of peremptory strikes 

in a discriminatory manner.
The state's evidence showed that late on July 26, 1976, a 

car with three men arrived at a service station in Taliaferro 

County, Georgia, where Henry Phillips worked. The three men got

out of the car and petitioner, identified as one of the three, 

robbed Phillips at gunpoint. Phillips testified that the men

4



then ordered him and his step-son into the men’s car and he soon 

found himself in the woods along with his step-son, Bonnie 
Bulloch, who had been with him at the service station. Both were 
told to lie on the ground, shots were fired, and when Phillips 

regained consciousness, his step-son was dead.

REASONS FOR GRANTING THE WRIT
Jose Martinez High was sentenced to death for an offense 

that occurred when he was 17 years old. The evolving standards 
of decency that mark the progress of a maturing society dictate 

that the execution of a youth under the age of 18 at the time 

the offense is cruel and unusual punishment.
There are few mitigating factors as compelling- in capital 

cases as youth, yet petitioner's jury never was informed m  any 

manner that the boy it sentenced to die was under the age of 18. 

Depriving the sentencer of this fact immeasureably heightened the 
risk that the jury's determination that death was the appropriate 

punishment was unreliable. This Court should review this 

unconstitutionally arbitrary sentencing process.
In the courts below petitioner alleged a clear and 

uncha11enged prima facie claim that intentional racial 
discrimination infected the jury selection process at his capital

trial, in violation of Batson v. Kentucky, ___ U.S. ---, 106
S.ct. 1712 (1986). Of fundamental importance to capital 
defendants in post-convict.ion proceedings is whether Batson 

should be given full retroactive effect in capital cases, and 

this Court should grant review to resolve this question.

5



T CERTIORARI SHOULD BE GRANTED TO DECIDE WHETHER 
THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE 
EIGHTH AMENDMENT PROSCRIBES EXECUTING A YOUTH 
UNDER THE AGE OF EIGHTEEN AT THE TIME OF THE 
OFFENSE.

Punishments which violate "the evolving standards of 
decency that mark the progress of a maturing society," Trop v. 
Dulses, 356 U.S. 86, 101 (1958), offend the Eighth Amendment to
the United States Constitution. The execution of a youth for an 

offense that was committed when he was age eighteen violates the 

contemporary norms of our society and is therefore

unconstitutional.
Our society's evolving standards are revealed by history 

and tradition, legislative attitudes and the response of juries 

reflected in their sentencing decisions. Enmund v. Florida, 458 

U.S. 782 (1982); Coker v . Georgia, 433 U.S. 584 (1977). 
Historically, we have recognized three reasons justifying the 
conclusion that the constitutional rights of children cannot be 

equated with those of adults: the peculiar vulnerability of 

children, their inability to make critical decisions in an 
informed, mature manner, and the importance of the parental role 

of child-rearing. Belotti v. Baird, 443 U.S. 622, 634 (1979);
Goss v. Lopez, 419 U.S. 565, 590 (1975). Adolescents are not yet 

set in their ways as they are still developing and still subject 

to the influence of the socializing institutions of their

environment.
Moreover., adolescents have no meaningful concept of death.

To them it is not a palpable reality. To the degree to which 

they know that certain behavior could result in death, 
adolescents often seem attracted to it, as demonstrated by their 

persistent involvment in dangerous driving, substance abuse, and 

suicide attempts. Kasterbaum, "Time and Death in Adolescence," 

in Feifel, ed., The Meaning of Death (1959) at 59. The utility 
of the death penalty is based in part upon the concept of general 

deterrence, which is premised upon the belief that would-be 

criminals rationally weigh the potential cost of the crime

6



Adolescents, however, do not haveagainst the expected benefit, 
the breadth and depth of experience to rationally evaluate the 

consequences of their acts. E. Peel, The Nature of Adolescent 

Judgment 153 (1971). Accordingly, as the "death penalty has
little deterrent force against defendants who have reduced
capacity for considered choice[,]" Skipper v. South Carolina, ---
u>s. ___, 106 S.Ct. 1669, 1675 (1986) (Powell, J., concurring),

the application of the penalty to youthful offenders contravenes

modern concepts of adolescent psychology.
The attitude of our society toward youth is reflected in the 

development of juvenile justice systems, of special legislation 

aimed at guaranteeing the emotional and physical well-being of 

youth, and in the norms of contemporary legal thought. And 
throughout our society we recognize the age of eighteen as the 

dividing line between child and adult privilege and 

responsibility.
In every state, juvenile statutes have long been in 

operation to protect delinquent children from adult, criminal 
proceedings. See, Mennel, "Origins of Juvenile Courts: Changing 

Perspectives and Legal Rights of Juvenile Delinquents" 18 

Crime and Delinquency 68 (1972). Juvenile laws are 
rehabilitative in nature, based upon the assumption that children 

and adolescents are not wholly responsible for their actions, and 

that they deserve the opportunity for guidance and reform, so as 

to have the chance to lead productive adult lives. State 
legislation establishing juvenile court jurisdiction supports the 

proposition that age 18 is the relevant cut-off point between 
childhood and adult rights and responsibilities. Thirty-seven 

states and the District of Columbia designate 18 years as the 

appropriate maximum age for juvenile court jurisdiction; one 

state sets the age at 19, eight set the age at 17, and four set 

the age at 16. S. Davis, Rights of Juvenile: The Juvenile 

Justice System, App. 5 (19 86) .

7



For purposes of establishing that dividing line, a review of

legislation in Georgia and in most states for most purposes

discloses that a minor means one below age eighteen. For
example, in Georgia the age of majority is eighteen. Ga. Code

Ann. 39-1-1 (1982). In Georgia, a person under age eighteen
cannot sit or a jury, Ga. Code Ann. 15-12-60 (1985); cannot marry
without permission of a parent or guardian, Ga. Code Ann. 19-3-37

(1982); cannot consent to all forms of medical treatment, Ga. Code
Ann. 39-9-2 ( 1985); cannot drive without parental consent, Ga.

Code Ann. 40-5-26 (1985); cannot purchase pornographic material,
Ga. Code Ann. 16-12-103 (1984); cannot participate in legalized

gambling, Ga. Code Ann. 16-12-58 (1984); and cannot patronize

pool halls if alcohol is sold on premises, Ga. Code Ann. 43-8-10
(1984). Georgia legislation in this regard parallels state
practice generally as to the disabilities of minors and the age
boundary most state legislatures use for most purposes. In well

over half of the states, age eighteen in the cutoff point m  the
1

various categories noted above.
These legislative attitudes have extended into the death 

penalty arena as well. Of the thirty-five jurisdictions with 
capital punishment statutes in effect, ten expressly prohibit 
such punishment for juveniles. Georgia, one of those ten, sets 

the minimum age at seventeen. Ga. Code Ann. 17-9-3 (1982).

Another group of eleven states have no minimum age limit but 

specifically list age of the offender as a mitigating factor in 

their capital punishment statutes. Streib, "Persons On Death Row 

As Of September 1985 For Crimes Committed While Under Age 
Eighteen: Updated Date From Continuing Research" (unpublished)

(1985) .

1/ See statistics compiled and presented by The National 
Legal Aid~and Defender Association, The Nationa! Association o 
Criminal Defense Lawyers, and the American Jewish Committee 
its brief as amici curiae in support of petitioner in Tnompson 
Oklahoma, 107"sTct. 1284 (1987) (cert, granted).

8



Modern legal standards endorse the proposition that the 

state should be forbidden to execute one under the age of 

eighteen at the time of the crime. Such an age limit has been 
espoused by The American Bar Association (1983), The American Law 

Institute (1962), and The National Commission on Reform Of 
Federal Criminal Laws (1971). The recently proposed federal death 
penalty legislation includes an age eighteen barrier along with 
recent legislation in Nebraska (1982), Colorado (1985) and New 

Jersey (1986).
When a state allows an adolescent under the age of eighteen 

to be put to death for his crimes, it utilizes a double standard 
of responsibility. To execute a citizen who cannot share in the 
basic freedoms of this society because he is too young is cruelly 
unfair. A just society should be consistent in meting out 
punishment and privilege. Putting to death a person under 

eighteen offends our shared standards of decency. "The state 

that protects all his other rights while he is minor should 
protect his life ..." Darrow, Legal Infants in the Electric 

Chair," The Literary Digest 121 (March 1936) p. 18.
Despite the clear availability in law, executing minors has 

been extremely rare by comparison. Streib, "Death Penalty for 

Children: The American Experience With Capital Punishment For 

Crimes Committed While Under Age Eighteen," 36 Okla. L. Rev. 613

(1983). Streib states that as of December, 1983, only 38 (2.9%)
of the 1,289 persons on death row were under age eighteen at the 
time of their offenses. By July, 1986, the number had dropped 
from 38 to 32, while the population of death row had increased by 

500. Streib, "The Eighth Amendment and Capital Punishment of 

Juveniles," 34 Clev. St. L. Rev. 363, 384 (1987). Thus, while 

the death row population grew by 42% (from 1,250 to 1,770) the 

juvenile death row population decreased by 16%.
Further, the juvenile capital-sentencing rate has levelled

9



off at a dramatically low level. For the past five years, 
juveniles have been sentenced to death at the average rate of 

seven per year. During this same period, the annual death 
sentencing rate for adults has been approximately three hundred 

per year. Id. Actual executions of juveniles have decreased 
steadily as well. Although persons under age twenty represented 
4.7% of the total number of'persons executed during the 1940's (58 
of 1,174), they were only 3.3% of the total during the 1950's (23

of 682), and only 1% in the 1960's (2 of 191).
Capital juries clearly have expressed reluctance to sentence

our youth to death. Juries have declined to apply their 
collective outrage —  retribution, an accepted philosophical basis 

for the death penalty -- to minors. Juries have recognized that 
execution of our youth is cruel because of the unique manner in 
which this society treats and protects its youth. The penalty 

has become "unusual" because of its actual rarity in practice.

It is a practice that an enlightened society must forbid.
This Court has granted certiorari in Thompson v. Oklahoma,
U.S. ___, 107 S.Ct. 1084 (1987). That case presents the

question of whether the infliction of the death penalty on an 

individual who was age fifteen at the time of the crime constitutes 

cruel and unusual punishment under the Eighth and Fourteenth 
Amendments. Alternatively, petitioner requests this Court to hold 

this petition until the Court rules in Thompson.

10



TT CERTIORARI SHOULD BE GRANTED TO DECIDE WHETHER IT IS 
UNCONSTITUTIONALLY ARBITRARY FOR A JURY TO IMPOSE 
OFA?H SENTENCE ON A YOUTH WITHOUT KNOWING HE WAS

. SnSer ?he AGE OF EIGHTEEN AT THE TIME OF THE OFFENSE.

Petitioner's jury was never made aware either through 
evidence or argument that he was only seventeen years old and an 

11th grade student at the time of the offense. The absence of 

this information negated the role of the jury in making an 
individualized determination of the appropriateness of death 

based upon the character and background of the offender as there 
are few mitigating factors as compelling as youth. Edding_s v. 

Oklahoma, 455 U.S. 194 (1982). Were petitioner only one year 
younger, the State of Georgia would be absolutely prohibited from 

inflicting the ultimate punishment. Ga. Code Ann. 17-9-3 
(1982). Imposing a death sentence on a seventeen year old is 
intolerable, if not unconstitutional. Depriving the sentencer 

of the knowledge of this fact immeasureably heightened the risk 

that the jury's determination of death was arbitrary and 
unreliable as this fact alone may well have moved a juror to vote

against death.
The Eighth Amendment requires that the accused capital 

offender be considered as an individual and the fundamental 

respect for humanity underlying that Amendment requires 
consideration of the character and record of the offender as an 
"indispensible" part of the death penalty process. Eddings, 455 

U.S. at 112; Woodson v. North Carolina, 428 U.S. 280, 304 (1976).

Eddings decries a "process that accords no significance to 

. relevant facts of the character and record of the individual 

offender [.]" Id. at 112 n. 7. The process by which petitioner 
received a sentence of death, in fact, accorded no significance 

to the most compelling of mitigation facts —  his youth.
Eddings, of course, builds upon the Eighth Amendment 

jurisprudence of this Court which flows from the conviction that 
"individual culpability is not always measured by the category of

11



the crime committed." Furman v. Georgia, 408 U.S. 238, 402 

(Burger, C.J., dissenting). As noted in Lockett v. Ohio, 438 

U.S. 586, 603 (1978), this Court's opinions "going back many years 

dealing with sentencing in capital cases" have focused on the 
requirement that the sentencer be "authorized, if not required to 

consider all of the mitigating" factors in the case. Lockett, at 

603, citing, Williams v. Oklahoma, 358 U.S. 576, 585 (1959).
The Court reasoned in Woodson that it was unconstitutionally 

arbitrary to execute a man or woman without considering factors 

showing that death was not a "just and appropriate sentence."

Id. at 304. In Gregg v. Georgia, 428 U.S. 153, 197 (1976) and 
the companion case of Jurek v. Texas, 428 U.S. 262, 273 (1976), 
this Court noted the special significance of age as mitigating 
evidence, as a characteristic of the offender crucial to the

guided discretion sentencing process.
Edding focused on the role of youth and upbringing in light 

of the history of the need for a consistent and principled

capital sentencing scheme.
[Ylouth must be considered a relevant, mitigating 
factor. But youth is more than a chronological fact.
It is a time and condition when a person may be most- 
susceptible to influence and to psychological damage. 
(Footnote omitted). Our history is replete with laws 
and judicial recognition that minors, especially in 
their earlier years, generally are less mature and 
responsible than adults. (Footnote omitted).

Eddings, 455 U.S. at 115-116 (emphasis supplied). Indeed, evidence

concerning the age and emotional history of a youthful defendant
bears "directly on the fundamental justice of imposing capital

punishment." Skipper v. South Carolina, --- U.S. ---,
1669, 1675 (1986) (Powell, J., concurring). "[T]he chronological
age of a minor is itself a relevant mitigating factor of great

weight ..." Eddings, 455 U.S. at 117.
in Eddings, this Court ruled that the Eighth Amendment 

precludes the sentencer from refusing to consider, as a matter of 

law, the relevent mitigating facts of age and difficult family



history. For the same reasons, the sentencing jury cannot 
constitutionally make an individualized, informed decision about 

the "fundamental justice" of a sentence of death on a minor

without knowledge of the age of the youth.
The jury "is a significant and reliable objective index of

contemporary values because it is so directly involved ..." Enmund 

v. Florida, 458 U.S. 782, 795 (1982). The jury is a barometer of

the common sense of the community in capital cases. It alone has 
the special role of determining what cases the death penalty is 

immoral or unproductive.
Age of the defendant is a factor of such great weight that a 

jury cannot intelligently judge the decency of imposing death upon 

a minor, without knowing that the defendant before it is a minor. 
Because of the special frailties of a youth —  the still-incomplete 
moral, emotional, and intellectual development —  the imposition on 
him of a sentence of death by a jury totally ignorant of his tender 

age is contrary to basic Eighth Amendment thought. This Court 

should grant certiorari to resolve this important question.

13



ttt f'FRTTORARI SHOULD BE GRANTED TO DECIDE WHETHER
BATSON V. KENTUCKY SHOULD BE GIVEN FULL RETROACTIVE
EFFECT in c ap i t a l c a s e s .

This Court, in Batson v. Kentucky., ___ U.S. ---, 106 S.Ct.

1712 (1986), held that when a prosecutor intentionally and
unlawfully seeks to exclude blacks from the petit jury, he 
creates an intolerable risk that racial bias will affect the 
jury's decision. This Court has previously held that Batson does 
not apply retroactively to collateral attacks where the judgment 

of conviction has entered and the direct appeal process has 

ended. Allen v. Hardy, _ _  U.S. 106 S.Ct. 2878 ( 19 86) (per

curiam), but that Batson, or any new rule for the conduct of 

criminal prosecutions, is to be applied retroactively to all 

cases, state or federal, pending on direct review or not yet 
final. Griffith v. Kentucky, ___ U.S. ---, 107 S.Ct. 708 (1987).

Neither Allen nor Griffith is a capital case coming to the 

Court from post-conviction proceedings. In a capital case, the 

illegal exclusion of blacks completely destroys the fundamental 

fairness of the sentencing proceeding. At such a proceeding the 

risk is magnified as the jury must make what is, ultimately, a 
moral and subjective judgment. Because of the unique nature of 

capital sentencing proceedings, certiorari is appropriate m  this 

case to determine whether Batson is to be fully retroactive m  

capital cases.
In Turner v. Murray, ___ U.S. ___, 106 S.Ct. 1683 (1986),

this Court emphasized the considerable discretion granted capital

sentencing juries in deciding whether to impose the death
penalty. This discretion renders a capital sentencing proceeding

unusually susceptible to the operation of racial bias.
In capital sentencing proceedings before a jury, the 
jury is called upon to make a highly subjective, 
unique, individualized judgment regarding the 
punishment that a particular person deserves...
Because of the range of discretion entrusted to a jury 
in a capital sentencing hearing, there is a unique 
opportunity for racial prejudice to operate but remain
undetected.

14



Id. 106 S.Ct. at 1687. Justice White noted in Turner that a 

biased juror may be unable to evaluate properly aggravating and
mitigating circumstances, or the juror may by affected by a fear of 

blacks. Id.
The use of juries disproportionately white due to 

discrimination to sentence blacks will increase the probability 

that bias will alter the decision to recommend death. "There is 
some risk of racial prejudice influencing a jury whenever there is 

a crime involving interracial violence." I_d. The judgment is 
highly subjective and individualized and there are countless ways 

in any case in which bias could affect the juror's sentencing 
decision. For example, the disproportionate exclusion of blacks 

from the jury room reduces the likelihood that manifestations of 

bias in white jurors will be challenged or that the character and 

record of the accused can be understood in his cultural milieu.
A review of the record of the voir dire at petitioner's trial 

reveals that the total petit jury venire consisted of 93 persons, 

and between 65 and 76 (between 70% and 82%) were black. Thirty two 

of those prospective jurors, all of whom were black, were 
preliminarily excluded by the Court due to their conscientious 
opposition to capital punishment. Trial Transcript (Tr.) at 250.

Subsequent to the inital winnowing process, the prosecutor 

used his peremptory strikes to further rid the jury of blacks.
The prosecutor exercised ten peremptory challenges, Tr. at 281, the
I %
limit permitted under Georgia law. Each of the jurors peremptorily 

striken by the State was black except one. Tr. at 281. As to six 

of the nine black jurors struck there is no record support for any 

conclusion other than that they were excluded for racial reasons, 

as none of these six jurors voiced any opinions or had any 

interaction with the court or the parties prior to their exclusion. 

Tr. at 194, 213.

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Since the inception of his prosecution in the state courts, 

petitioner has challenged the prosecutor's use of peremptory 
challenges to eliminate blacks from jury service. A pre-trial 
motion anticipating the state's misuse of peremptories was heard and 
denied. Petitioner's trial counsel continually objected to the 

practice during voir dire and briefed the claim on direct appeal.
In post-conviction proceedings in both state and federal courts, 

petitioner has complained of the use of peremptory strikes in a

racially discriminatory manner.
Because violations of Batson create sentencing juries both 

susceptible to racial bias and incapable of expressing the values 

of the entire community, full retroactivity is necessary. This 

conclusion is supported by this Court's decision in Witherspoon v.

II1inois, 391 U.S. 510 (1968), which was held to be fully 
retroactive. In Witherspoon, as here, illegal exclusion of blacks 

resulted in a jury which could not "speak for the community. 391 
U.S. at 520. Full retroactivity was adopted because the exclusion 

"necessarily undermined the very integrity of the trial process." 

Id. at 523 n. 22.
Since Witherspoon, federal courts have never limited the 

retroactivity of decisions which enhance the reliability of capital 
sentencing proceedings. Songer v. Wainwright, 769 F.2d 1488, 1489 

(11th Cir. 1985) (en banc) (applying Lockett v. Ohio, 438 U.S. 586 

(1978) retroactively). Similarly, the California Supreme Court 

has determined' that its decision to modify the evidentiary showing 

necessary to show intentional discrimination via peremptory 

challenges, People v. Wheeler, 583 P.2d 748, 768 (Cal. 1978), 
applies retroactively to all capital cases, but not to non-capital

cases.
Where the prosecutor utilizes peremptory strikes to exclude 

jurors the same race as a capital defendant, fundamental fairness

requires that the sentence of death be invalidated. No rationale

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can sustain a death sentence returned by a disproportionately white 
jury the product of racial discrimination. Because of the question 

of Batson's retroactivity to capital cases is an important 

one, this Court should grant certiorari.

CONCLUSION
For the foregoing reasons, petitioner prays that this Court 

issue a writ of certiorari to the United States Court of Appeals 

for the Eleventh Circuit.

Respecfully submitted,

Bradley S. Stetler 
Office of Public Defender 
127 Pine Street 
Burlington, Vermont 0540-1 
(802) 863-6323
Michael C. Garrett 
412 Greene Street 
Augusta, Georgia 30901 
(404) 724-1896
Counsel for petitioner

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