Mills v. Maryland Brief Amicus Curiae in Support of Petitioner

    No. 87-5367

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1987

RALPH MILLS,
Petitioner,

vs.

STATE OF MARYLAND,
Respondent.

On Writ of Certiorari To 
the Court of Appeals of Maryland

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF PETITIONER

JULIUS L. CHAMBERS RICHARD H. BURR III DEBORAH FINS *
99 Hudson Street
New York, New York 10013
(212) 219-1900

ANTHONY G. AMSTERDAM 
New York University School of Law

40 Washington Square South Room 327
New York, New York 10012 
(212) 998-6199

Attorneys for Amicus Curiae
* Counsel of Record



TABLE OF AUTHORITIES
Cases; Page
Andres v. United States, 333 U.S.

740 (1948)   10
Booth v. Maryland, U.S. ,96

L. Ed.2d 440 (1987)   2,3,19,20
Eddings v. Oklahoma, 455 U.S. 104

(1982)   10,14
Gardner v. Florida, 430 U.S. 349

(1977)   2,3,20
Lockett v. Ohio, 438 U.S. 586

(1978) ...................  passim
Sandstrom v. Montana, 442 U.S. 510(1979)   8
Skipper v. South Carolina, U.S.

__ , 90 L.Ed.2d 1 (1986)   20

Statutes and Codes:
Md. Code Art. 27 § 413(g)(4) (1986Ann. Supp.) .................  14
Md. Code Art. 27 § 413(g)(5) (1986Ann. Supp.) .................  15

Other Authorities
Physician's Desk Reference (41 ed.1987)   13

i



No. 87-5367

IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1987

RALPH MILLS,
Petitioner.

vs.
STATE OF MARYLAND, 

Respondent.

On Writ of Certiorari 
to the Court of Appeals of Maryland

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS 
CURIAE IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST OF AMTCUS CURIAE 
The NAACP Legal Defense Fund is a 

not-for-profit corporation organized under 
the laws of New York for the purpose, 
among others, of assisting Black persons 
to secure their constitutional rights by 
the prosecution of lawsuits. Recognizing 
that the death penalty has traditionally



2
borne most heavily upon members of racial 
minorities and other disadvantaged 
segments of the population, the Fund has 
undertaken to represent Blacks and others 
charged with capital offenses since the 
days of the Scottsboro Boys cases. The 
Fund represented the petitioners in 
Lockett v. Ohio and in Gardner v. Florida 
and appeared before this Court as amicus 
curiae in Booth v. Maryland —  the major 
cases whose principles are at issue in 
this one.

Letters of consent by the parties to 
the filing of this brief are being 
submitted to the Clerk with the brief.

SUMMARY OF THE ARGUMENT 
1. Mr. Mills' sentencing violated
Lockett v. Ohio. 438 U.S. 586 (1978),
because the instructions to the jury at 
the penalty phase of his capital trial 
prevented the jurors from giving



3
independent mitigating weight to the 
evidence proffered in mitigation. 
Reasonable jurors could have understood 
the instructions to require them to reject 
any evidence which they did not 
unanimously agree supported a specific 
statutory mitigating circumstance.
2. The use of the victim impact 
statement in this case violated not only
Booth v. Maryland f ___ U.S. ___, 96
L.Ed.2d 440 (1987), but Gardner v.
Florida, 430 U.S. 349 (1977) as well. The
defense was prevented from introducing 
evidence of the victim's reputation for 
violence in support of a defense of 
provocation, but the victim impact 
statement described the victim as a non­
violent person. The defense was not 
permitted to rebut, deny or explain the 
evidence of non-violence.



4
ARGUMENT

I. The Lockett Issue 
Two questions seem to us decisive of 

Ralph Mills' claim under Lockett v. Ohio. 
438 U.S. 586 (1978). Might a reasonable
juror have understood the instructions and 
verdict form submitted at the sentencing 
phase of Mills' trial to mean that the 
jury was forbidden to consider any 
mitigating circumstance proffered by Mills 
unless the jurors unanimously found that 
that specific circumstance was proven to 
exist by a preponderance of the evidence? 
If so, did these instructions and verdict 
form, in the context of Maryland's 
definition of statutory mitigating 
circumstances and the particular 
mitigating evidence adduced by Mills, 
preclude the jury from giving Mills' 
evidence the "independent mitigating 
weight" to which it was entitled under



5
Lockett (438 U.S. at 605)?

(1) The answer to the first question 
is plainly yes. Now that the ambiguities 
of the Maryland statute have been resolved 
by the laborious interpretation placed 
upon it below, such misleading 
instructions will doubtless not be given 
in the future. But that is no solace to 
Mills. His jury was handed a verdict form 
which set out seven statutory mitigating 
circumstances each accompanied by a box to 
check "yes" or "no." Following these was 
an eighth, open-ended category of 
m i t i g a t i o n :  " O t h e r  miti g a t i n g
circumstances exist, as set forth below," 
with blanks below it and the ubiquitous 
"yes" and "no" checkblocks alongside. All 
of this was introduced, on the form, by 
the preamble: "[B]ased upon the evidence
we unanimously find that each of the 
following mitigating circumstances which



6
is marked yes has been proven to exist by
a preponderance of the evidence, and each
mitigating circumstance marked no has not
been proven by a preponderance of the
evidence." (J.A. ___.) The trial judge
read and explained this portion of the
form to the jury in these words:

"[B]ased upon the evidence we 
unanimously find that each of 
the following mitigating 
circumstances which is marked 
yes has been proven to exist by 
a preponderance of the evidence, and each circumstance marked no 
has not been proven by a 
preponderance of the evidence.Again I stress that your finding 
as to mitigating circumstances must be unanimous, that is you must all agree."

(J.A. ___.) (Earlier in the charge the
judge had told the jury, regarding the 
sole aggravating circumstance alleged by 
the prosecution, that "in considering 
these matters, you must consider whether 
aggravating circumstance number two has 
been proven beyond a reasonable doubt. If



7
you unanimously conclude that it has been 
so proven, you should answer that question 
yes. If you are not so satisfied, then of 
course you must answer no." (J.A. .))

The majority in the Court of Appeals 
found that these instructions meant that 
the jury was required to be unanimous in 
order to check any box on the verdict form 
either "yes" or "no." If the jury was 
non-unanimous as to any item, then its 
proper course was to leave that item 
blank. In other words, the instruction 
meant:

Based upon the evidence we unanimously find[: (1)] that each of the 
following mitigating circumstances which is marked yes has been proven to exist by 
a preponderance of the evidence, and [(2) 
that] each mitigating circumstance marked 
no has not been proven by a preponderance of the evidence.
It did not mean:

Based upon the evidence we unanimously find that each of the 
following mitigating circumstances which 
is marked yes has been proven to exist by 
a preponderance of the evidence[;] and



8
each mitigating circumstance marked no has 
not been [so] proven by a preponderance of the evidence.

Perhaps some reasonable jurors might 
have read the instructions and the verdict 
form this way. But equally reasonable 
jurors1 might have thought: "We have to 
be unanimous to make a finding and to 
check a box yes. If we're not unanimous, 
we can make no finding, so we check the 
box no." Nothing on the verdict form or 
in the instructions said that unanimity 
was required for a non-finding as well as 
for a finding. Nothing on the verdict 
form or in the instructions said or hinted 
that the jury was free to leave any item 
unanswered. (As the dissent below pointed 
out, no Maryland jury using this 
particular form has ever left a question 
unanswered.) A grammarian might have

x See Sandstrom v. Montana. 442 U.S. 510, 514 (1979).



9
parsed the form —  as did the majority in 
the Court of Appeals —  by observing that 
"the clause referring to each mitigating 
circumstance marked 'no' is also the 
object of 'we unanimously find that.'"
(J*A. __ .) But a practical-minded member
of the jury panel might then have asked 
the grammarian: "So if we can't say 'yes' 
unanimously, what are we supposed to do? 
Where's the third box, for 'we just can't 
agree'?" There was none —  nor any 
explanation for its absence. And since 
both the verdict form and the court's 
instructions dealing with the weighing of 
aggravating and mitigating circumstances 
w e r e  e x p l i c i t  in i d e n t i f y i n g  
"circumstances marked 'yes'" with 
"circumstances unanimously found to exist"
(see J.A. ___, ___) the grammarian would
have had an uphill argument against the 
practical-minded juror in demonstrating



10
that no answer rather than a "no" answer 
was expected from a non-unanimous jury.

"That reasonable men might derive a 
meaning from the instructions given other 
than [what the Court of Appeals deemed to 
be] the proper meaning —  is probable. 
In death cases doubts such as those 
presented here should be resolved in favor 
of the accused." Andres v. United States. 
333 U.S. 740, 752 (1948).2 Mills' life
should not be taken on the merest 
speculation that the ambiguous jury 
instructions and verdict form revealed by 
this record were read in one rather than 
another equally plausible fashion by his

See also Eddinqs v. Oklahoma. 455 U.S. 104, 117-118 (1982) (concurringopinion of Justice O'Connor): "Because
sentences of death are 'qualitatively different' from prison sentences, 
this Court has gone to extraordinary measures to ensure that the prisoner 
sentenced to be executed is afforded 
process that will guarantee, as much as is 
humanly possible, that the sentence was 
not imposed out of whim . . .  or mistake."



11
jurors.

(2) The answer to the second 
question, whether the effect of the jury 
instructions and verdict form was to 
forbid the jury's consideration of 
mitigating evidence in violation of 
Lockett. is also plainly yes. Two of 
M a r y l a n d ' s  statutory mitigating 
circumstances that were given to the jury 
to be checked "yes" or "no" on the verdict 
form —  and the two to which Mills 
addressed most of his defensive evidence 
—  were:

The murder was committed while the capacity of the defendant to 
appreciate the criminality of 
his conduct or to conform his 
conduct to the requirements of 
law was substantially impaired 
as a result of mental 
incapacity, mental disorder, or 
emotional disturbance (J.A.
___ ) ,
The youthful age of the 
defendant at the time of the crime (J.A. ___).

and



12
Mills was 20 at the time of the crime
___), and in the second year of a

30-year sentence for a prior second-degree
murder (J.A. ___). Before that, as his
mother testified:

"I went to Court every year 
since I can remember Ralph being 
twelve, thirteen years old, 
every single year, sometimes 
two, three times a year, 
sometimes two or three times a month."
___.) Mills "developed drug and

alcohol abuse problems at a very early 
age" (Special Court Investigation, 
admitted at trial as State's Exhibit 1) , 
was diagnosed as suffering from "MBD" or
"minimum brain damage" (J.A. ___) —  an
organic condition which, according to a 
prison-initiated psychological evaluation 
conducted 6 months prior to his present 
crime, "may effect [sic] his intellectual 
functioning and contribute to his acting 
out behavior" (J.A. ___) — and might or



13
might not also have been afflicted with 
schizophrenia or some other psychosis.3

What were the jurors to do with this 
evidence? Let us assume that a couple of 
them —  say, 3 of them —  took the view 
that the evidence established the 
statutory mitigating circumstance that

Mills' mother testified that when he first began having behavioral problems at school he was seen on an 
emergency basis at the local Mental
Hygiene Clinic. (J.A. __ .) The initial
diagnosis was "minimal brain damage."
(J.A. ___.) Later, a second provisional
diagnosis was added which was not 
expressly stated to Mrs. Mills. But, she testified:

"I asked [the therapist] ... if 
he was showing any signs of 
schizophrenia, cause there is 
schizophrenia in our family . ..
I was grabbing at anything I 
could grab at. She said yes. 
That's all she said was yes, but we can't tell now, it's too 
early. Then they ... decided to put him on Mellaril ...."

(J.A. ___.) Mellaril is used in the
treatment of schizophrenia and other 
psychotic disorders. See Physician's Desk 
Reference 1778-79 (41 ed. 1987) .



14
Mills' "capacity ... to conform his 
conduct to the requirements of law was 
substantially impaired as a result of 
mental incapacity, mental disorder, or 
emotional disturbance" (Md. Code Art. 27 
§ 413(g)(4) (1986 Ann. Supp.)). The
remaining 9 disagreed, being unconvinced 
that a mental condition diagnosed as 
"minimal brain damage" met the statutory 
criterion of "substantially" impairing 
Mills' capacity —  although these 9 jurors 
did believe that the condition was 
mitigating to some extent, particularly in 
combination with Mills' relative youth. 
Some of the 9 jurors, indeed, taking the 
view that "youth is more than a 
chronological fact,"4 believed that Mills 
had shown by a preponderance of the 
evidence the distinct statutory mitigating

4
115.

Eddinqs v. Oklahoma. 455 U.S. at



15
circumstance described in the verdict form 
as "[t]he youthful age of the defendant at 
the time of the crime" (Md. Code Art. 27 
§ 413(g)(5) (1986 Ann. Supp.)). Other 
jurors, however, interpreted the term 
"youthful age" more narrowly and were 
unwilling to find this statutory 
mitigating circumstance —  although they 
would have been inclined to accord some 
weight to Mills' chronological age of 20, 
and some to his emotional immaturity as 
well. But under the instructions and the 
verdict form, neither Mills' organic brain 
damage nor his immaturity could be given 
"independent mitigating weight"5 —  nor 
could they be considered in mitigation at 
all -- because the jurors had not 
unanimously agreed in finding that they 
met the specific statutory definitions set 
forth in the instructions and the verdict

5 Lockett v. Ohio. 438 U.S. at 605.



16
form.

The unconstitutional result would be 
that although all 12 jurors were inclined 
to attribute significant mitigating value 
to slightly different aspects of the same 
evidence, none of the 12 could give any of 
this mitigating evidence any weight at 
all. To the contrary, their obligation as 
instructed would be:

(1) to mark the verdict form for the 
two pertinent statutory mitigating 
circumstances "no” —  there being, by 
hypothesis, no unanimity for either;

(2) to mark the verdict form for the 
non-statutory mitigating circumstance "no" 
—  since this category of mitigation was 
defined by the instructions as "any other 
mitigating circumstances not specifically 
enumerated in the first seven that we have 
just reviewed" (J.A. ___), and it would
hardly occur to jurors who had just



17
debated and, for want of unanimity, 
rejected both "substantial" mental 
incapacitation and "youth" to turn around 
and view "minimal brain damage" and 
immaturity as "other" mitigating 
circumstances not previously reviewed; and

(3) to return a death verdict 
without further consideration of 
mitigation —  because this is what the 
jury instructions and the verdict form 
both said to do "if all of the answers [to 
the mitigating circumstances on the
verdict form] were marked 'no'" (J.A. ___;
see also J.A. ___) .

The Ohio statutory scheme condemned 
in Lockett did not preclude the admission 
into evidence of "detailed information 
about [a capital defendant's] ... 
intelligence, character, and background." 
438 U.S. at 594. To the contrary, it 
called for "considering the nature and



18
circumstances of the offense and the
history, character, and condition of the
offender" in determining, yes or no, the
presence of the three statutory mitigating
circumstances prescribed. 438 U.S. at
612. Ohio law was clear that "the
sentencing judge or judges may consider
factors such as the age and criminal
record of the defendant in determining
wheth er any of the mitigating
circumstances is established." 438 U.S.
at 608. But because all of this broad
array of evidence was "relevant for
mitigating purposes only if it is
determined that it sheds some light on one
of the three statutory mitigating
factors," the Ohio procedure was declared
unconstitutional, 438 U.S. at 608, on the
principle that a death-sentencing process

"that prevents the sentencer in all capital cases from giving 
independent mitigating weight to 
aspects of the defendant's



19
character and record and to 
circumstances of the offense 
proffered in mitigation creates 
the risk that the death penalty 
will be imposed in spite of 
factors which may call for a less severe penalty."

(438 U.S. at 605.) That is precisely the 
risk to which Maryland exposed Ralph Mills 
on this record, and his death sentence 
violates the Eighth Amendment if Lockett 
is the law.

II. The Booth Issue 
The nature of the victim-impact 

evidence presented by the prosecution at 
the sentencing stage of this case self- 
evidently brings the case within Booth v .
Maryland. ___ U.S. ___, 96 L.Ed.2d 440
(1987), and refutes the Court of Appeals' 
attempted distinction of Booth.6 We 
address the issue only to call to the

6 State's Exhibit 1, a summary of 
an interview with the brother and sister- 
in-law of the homicide victim, appears at J • A • •



20
Court's attention that the admission of 
this evidence violated not merely Booth 
but the basic Due Process principle 
invoked by the concurring Justices in
Skipper v. South Carolina. ___ u.S. ___,
90 L.Ed.2d 1, 10-11 (1986): that a capital 
defendant must be "permitted to 'deny or 
explain' evidence on which his death 
sentence may, in part, have rested" 
(quoting Gardner v. Floridar 430 U.S. 349, 
362 (1977)).

One of the disputed issues at the 
guilt phase of Ralph Mills' trial was 
whether the homicide of Paul Brown was the 
result of any provocation of Mills by 
Brown. See T. 495-496, 500-501.7 In this 
connection, Mills attempted to present 
evidence of Brown's apparent reputation

"T." refers to the transcript of the trial and is used for references to 
material not contained in the parties' joint appendix.



21
for violence, which was excluded by 
rulings of the trial court. T. 443. Yet 
at sentencing, the prosecutor put in 
victim-impact evidence which portrayed 
Brown as "a good person who had a tough 
life, a lot of bad breaks, ... nobody to 
really give him a chance,'1 and 
specifically asserted that "he wasn't
violent" (J.A. ___). The prosecutor then
urged that the unprovoked and cold-blooded 
nature of the killing warranted a death
sentence. (J.A. _____). Like Skipper's
jury, Mills' jury was permitted to hear 
only one side of the story, and the 
prosecutor then took advantage of that 
lopsided state of the record to argue for 
death.

III. Conclusion
Mills' death sentence should be

reversed.



22

Dated: January 21, 1988.

Respectfully submitted,
JULIUS L. CHAMBERS 
RICHARD H. BURR III 

* DEBORAH FINS
99 Hudson Street, 16th Floor New York, New York 10013 
(212) 219-1900
ANTHONY G. AMSTERDAM 
New York University School of Law
40 Washington Square South Room 327
New York, New York 10012 
(212) 998-6199
Attorneys for Amicus Curiae

Deborah Fins
* Counsel of Record