McDonnell Douglas Corporation v. Percy Green Brief for Petitioner

    IN THE
SUPREME COURT OP THE UNITED STATES

October Term 1970 
No. 204

JAMES EDWARD CRAMPTON,
Petitioner,

—vs—
THE STATE OF OHIO,

Respondent.

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

RESPONDENT’S BRIEF

HARRY FRIBERG,
Prosecuting Attorney 

Lucas County, Ohio 
MELVIN L. RESNICK,

Assistant Prosecuting Attorney 
Lucas County, Ohio 

ALICE L. ROBIE RESNICK, 
Assistant Prosecuting Attorney 

Lucas County, Ohio 
JOHN F. HAYWARD,

Assistant Prosecuting Attorney 
Lucas County, Ohio 

Lucas County Court House 
Toledo, Ohio 43624 
(419) 248-5911 
Attorneys for Respondent

The West Toledo Publishing Co., Inc.



TABLE OF CONTENTS

(i)

Page
OPINION BELOW ............ ................ ........... ....... .........1

JURISDICTION ............. .;..... .,............................................ I

QUESTIONS PRESENTED ..... ........................ ...................... 2

STATEMENT .................. ..................... ............... ......... .......... 2

SUMMARY OF ARGUMENT ............................................... . 2

ARGUMENT:
I. THE OHIO STATUTE WHICH PROVIDES THAT

THE TRIER OF FACT SHALL DETERMINE 
BOTH GUILT AND PUNISHMENT IN A SINGLE 
VERDICT IN CASES OF MURDER IN THE FIRST 
DEGREE IS NOT VIOLATIVE OF PETITIONER’S 
RIGHT TO BE FREE FROM SELF-INCRIMINA­
TION .............................................................. ............ . 4

A. Applicable Ohio Statutory and Case Law Concern­
ing The Recommendation of Mercy By The
Trier of the Facts in a Capital Case.................. ...... 5

B. The Unitary Trial Procedure In A Capital Case
Where The Trier of The Facts Determines Both 
Guilt and Punishment is Fundamentally Fair 
Under the Due Process Clause and Does Not 
Violate An Accused’s Fifth Amendment Protec­
tion Against Self-Incrimination ................................13

II. THE DUE PROCESS AND EQUAL PROTECTION 
CLAUSES OF THE FOURTEENTH AMENDMENT 
TO THE UNITED STATES CONSTITUTION DO 
NOT REQUIRE STATUTORY STANDARDS FOR 
THE IMPOSITION OF THE DEATH PENALTY BY
THE JURY IN A CAPITAL CASE........................ ....... 29

CONCLUSION 47, 48



TABLE OF AUTHORITIES

Cases: Page

Ashbrook v. Stats, 49 Ohio App. 298, 197 N.E. 214 (1935).............  11

Application of Rodriguez, 226 F, Supp. 799 (D.N.J.1 9 6 4 ) .    23

Behrens v. United States, 312 F. 2d 223 (7th Cir.1962)..... ..... ..... . 23

Calloway v. United States, 399 F. 2d 1006
(D.C. Cir. 1968)..... ..... ............................................................. 19

Coble v. State, 31 Ohio St. 100 (1876).... ............... ................... . 10

Coleman v. United States, 334 F. 2d 558
(D.C. Cir. 1964)....... ................ .............. ..................................22

Couch v. United States, 235 F. 2d 519
(D.C. Cir. 1956).................... .............................. .....................  24

Chatterton v. Dutton, 223 Ga. 243,154 S.E.
2d 213 (1967)........................~........ .......................................... 38

Duncan v. Louisiana, 391 U.S. 145 (1968)..................................... 46

Frady v. United States, 348 F. 2d 84
(D.C. Cir. 1964)......... ...................................... ............ ...........  27

Giaccio v. Pennsylvania, 382 U.S. 399 (1966).....................3, 37, 39

Green v. United States, 313 F. 2d 6 (1st Cir. 1963).................... 23, 24

Hill v. United States, 368 U.S. 424 (1962)................. .................. 2,20

Howell v. State, 102 Ohio St. 411,131 N.E.
706 (1921)............................................ .......................  7,11,12, 40

In re Anderson, 69 Cal. 2d 613, 447 P. 2d 117 (1968)........................  44

In re Ernst Petition, 294 F. 2d 556 (3rd Cir. 1961)................. ........ 38

(ii)



(hi)

Cases continued

Jackson v. Denno, 378 U.S. 368 (1964)...,.,.... ..... .. ...................  19, 20

Johnson v. Commonwealth, 158 S.E. 2d. 725 (1968)....,—.................. 27

Keveny v. State, 109 Ohio St. 64, 141 N.E. 845 (1923)....................... 10

Knapp v. Thomas, 39 Ohio St. 377, 48 Am. Rep.
462 (1883)............................................................T............. ......34

Licavoli v. State, 20 O.O. 562, 34 N.E. 2d 450 (1935)... :......... ,....... 33

Massa v. State, 37 Ohio App. 532, 175 N.E. 219 (1930)................   7

Maxwell v. Bishop, 398 U.S. 262 (1970).,.....     13

Michelson v. United States, 335 U.S. 469 (1948).... .......... ............ 28

McGrady v. Cunningham, 296 F. 2d 600 (4th Cir. 1961)............. 23, 24

Myers v. Frye, 401 F. 2d 18 (7th Cir. 1968)..................    20

Oyler v. Boles, 368 U.S. 448 (1962).........      36

Pope v. United States, 372 F. 2d 710 (8th Cir. 1967)......................  27

Salsby v. State, 119 Ohio St. 314, 164 N.E. 232 (1928)... ...............  26

Segura v. Patterson, 402 F. 2d 249
(10th Cir. 1968)........ .............. ..... ...............................3,15,20,47

Shelton v. State, 102 Ohio St. 376,131 N.E. 733 (1921)... ............. 11,12

Skinner v. Oklahoma, 316 U.S. 535 (1942)..................... . 3, 21, 33, 35

Specht v. Patterson, 386 U.S. 605 (1967).................................... ... 21

Spencer v. Texas, 385 U.S. 554 (1967).....................  2, 3,14,17,19, 20,
26,28,38,39,45



Cases eon tinned

Snyder v. Massachusetts, 291 U.S. 97 (1934)..... .... 27

State v. Ausberry, 83 Ohio App. 514, 82 N.E. 2d
751 (1947)........................... ......... .................. .....................................................................................26

State v. Caldwell, 135 Ohio St. 424, 21 N.E.
2d 343 (1939).......... ........... .................. ..... .................. . .4,12, 40

State v. Chapman, 111 Ohio App. 441,168 N.E.
2d 14 (1959).... ........................... ................ ..... ............. .........  9-10

State v. Cocco, 73 Ohio App. 182, 55 N.E. 2d
430 (1943)............................ ........ ........................... .............. . 9

State v. Crafton, 15 Ohio App. 2d 160,
239 N.E. 2d 571 (1968)......................................................... .....  9

State v. Crampton, 18 Ohio St. 182,
248 N.E. 2d 614 (1969).......................................... ........ . 11, 38

State v. Ellis, 98 Ohio St. 390,120 N.E.
2d 218 (1918).............................................................................11

State v. Frohner, 150 Ohio St. 53,
80 N.E. 2d 868 (1948)....................... ....................... ............. .....  13

State v. Hector, 19 Ohio St. 2d 167, 249 N.E.
2d 912 (1969)........................ ...... ............. .............................. 10

State v. Hickman, 102 Ohio App. 78,141 N.E.
2d 202 (1956).............................................. ..............................  9

State v. Lucas, 93 Ohio App. 281, 109 N.E. 39 (1952)....................... 13
State v. Moore, 149 Ohio St. 226, 78 N.E.

2d 365 (1948).................. .......................... ,........ .....................  9
State v. Mount, 30 N.J. 195, 152 A. 2d 343 (1959).......... ............ 27

Civ)



Oases continued . .. ,. .......... >

State v. Murdock, 172 Ohio St. 221,174 N.E.
2d 543 (1961)... ........ *££............. ............................. .......... . 10

State v. Strong, 119 Ohio App. 31,196 N.E.-
$  2d 801 (1963)....................... .................... ..... ....... 9

Trop v. Dulles, 356 U.S. 86 (1958)........,.... .... .............. . 45

United States v. Allegrucci, 299 F. 2d 811
(3rd Cir. 1962)...... ....... ..................... ............................. ....................................... 23

United States v. Behrens, 375 U.S. 162 (1963)...... ............. ........... 23

United States, ex rel Darrah v. Brierly, 290
F. Supp. 960 (E.DJPa. 1968)......................................23

United States v. Curry, 358 F. 2d 904
(2nd Cir. 1966)...................................... ........ ................ . 27

United States ex rel Elksnis v. Gilligan, 256
F. Supp. 244 (S.D.N.Y. 1966)....... ................... ..... ...... . 23

United States v. Jackson, 390 U.S. 570 (1968)........... ..................... 19

United States v. Johnson, 315 F. 2d 714
(2nd Cir. 1963)................................................ ........-............... 23

United States ex rel Thompson v. Price, 258
F. 2d 918 3rd Cir. (1958)...................... ....................................  27

Williams v. Florida, 399 U.S. 78 (1970)............... 3, 4,18,19, 38, 45, 46

Williams v. New York, 337 U.S. 241 (1949)............................... 2,20, 21

Winston v. United States, 172 U.S. 510 (1899)................................ 39

Witherspoon v. United States, 391 U.S. 510 (1968)............4, 7, 38, 44,
45, 46, 47

Yick Wo v. Hopkins, 118 U.S. 356 (1886)....,.,..... . 21, 35, 38



(vi)

Statutes:

Alaska Stat., §11.15.010; §11.15.020...............................................

Conn. Gen. Stat., §53-10......................................................................

Ga. Code Ann., §26-1101................... ....... i. ........... ........

Ga. Laws, No. 1333 (1970)..................................... ....... ..... .

Iowa Code Ann., §690.2..................................................................

Maine Rev. Stat. Ann., title 17, §2651....... ................ ...................

Mich. Comp. Laws, §750.316.................... i  ............. ...............

Minn. Stat. Ann., §609.185............. ;... ............ ........................... .

N.Y. Penal Law's, §1253.0 and §125.35............................................

Ohio Constitution, Article III, Section 11....... ................................

93 Ohio Laws 223............................................ ...... ........ .......!.......

Ohio Revised Code, §2901.01..... ........ ..............................  6, 30, 31,

Ohio Revised Code, §2901.02.........................................................

Ohio Revised Code, §2901.03............... ................................. .........

Ohio Revised Code, §2901.04........ ........... ........ ..... ..... ......... ..........

Ohio Revised Code, §2901.27................... .......................................

Ohio Revised Code, §2901.28..........................................................

Ohio Revised Code, §2945.06.................................... ....... .

45

42

42

42

45

45

45

45

42

33

6

42

30

30

30

30

30

5



(vii)

Statutes continued

Ohio Revised Code, §2945.57................................... ....... ••••■•.....••••••• 8

Ohio Revised Code, §2945.59— ........ ..........................................26

Ohio Revised Code, §2947.05............................ ..............................  24

Ohio Revised Code, §2947.06............................•••••..........................25

Ohio Revised Code, §2951.02................................................ ........ . 25

Ohio Revised Code, §2965.13.......................................................... 34

Ohio Revised Code, §2965.14..........................................................  34

Oregon Rev. Stat, §163.010....................... ............ ....................... 45

Texas Code Crim. P. Ann., Art. 37.07 (2) (b>........ ................... . 42

West Va. Code, §61-2-2................................. ................................45

Wisconsin Stat. Ann., §940.01............. ...... ............................. . 45



Other Authorities ■ ,

American Law Institute, Model Penal Code........ .............. 41,: 42, 43

Bedau, Death Penalty in America, 27 (rev., ed., 1967)..................  30

Black’s Law Dictionary, 4th Ed..................................................... 31

Comment, The Death Penalty Cases, 56 Cal. L. Rev.
1268 (1968)..............................................       4,44

Elman, Of Law and Men, (1956).......... .......... ..............................  18

Kalvin & Zeisel, The American Jury (1966)................ ................. 17

State of Ohio, Commissioner of Corrections (1970).......................  34

United States Supreme Court Rules................................................17

Webster’s New Twentieth Century Unabridged
Dictionary.................................. .............................................31

(viii)



1

IN THE
SUPREME COURT OF THE UNITED STATES

October Term 1970 
No. 204

JAMES EDWARD CRAMPTQN,
Petitioner,

—vs—

THE STATE OF OHIO,
Respondent.

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

RESPONDENT’S BRIEF

OPINION BELOW

The opinion of the Supreme Court of Ohio (A. 83-88) is 
reported at 18 Ohio St. 2d 182; 248 N. E. 2d 614.

JURISDICTION

On June 11, 1969, judgment was entei'ed by the Supreme 
Court of Ohio (A. 82). On July 31, 1969, a petition for 
Writ of Certiorari was filed and on June 1, 1970, it was 
granted (A. 89), The jurisdiction of this Court rests upon 
28 U.S. Code, Section 1257 (3).



2

QUESTIONS PRESENTED

1. Whether the Ohio statute which provides that the 
trier of fact shall determine both guilt and punishment in a 
single verdict in cases of murder in the first degree violates 
Petitioner’s right to be free from self-incrimination.

2. Whether the Ohio statute which provides that the trier 
of fact may grant or withhold a recommendation of mercy 
in cases of murder in the first degree, and which provides 
no standards or criteria to assist the trier of fact in making 
such determination, violates the Petitioner’s right to Due 
Process and Equal Protection of the law.

STATEMENT

The Brief of Amicus Curiae United States contains an 
adequate statement of facts pertaining to the Crampton 
case.

SUMMARY OF ARGUMENT

There is no constitutional requirement for a split-verdict 
or ‘ bifurcated trial’ where the trier of the fact determines 
both guilt and punishment [Spencer v. Texas, 385 U. S. 554 
(1967)]. The petitioner was not faced with a collision of 
constitutional rights in the trial of his case because he 
lias ho specific statutory or constitutional right to offer 
evidence of allocution prior to a verdict which determines 
guilt and punishment [Hill v. U. S:, '368 U. S. 424 (1962); 
Williams v. N. Y., 337 U. S. 241 (1949)]. The petitioner’s 
Fourteenth Amendment right to be heard in the case at bar



was unfettered. By his. own choice, and for reasons best 
known to himself, petitioner declined to take the witness 
stand in his own defense. Instead, he presented his defense 
of insanity, diminished responsibility and mitigation 
through other witnesses. That decision was a free choice 
which petitioner made in his own interest and not as a 
result o f pressures imposed by the State [ Williams 'v. 
Florida, 399 U.S. 78 (1970); Sequra v. Patterson, 402 F. 2d 
249 (1968)]. Petitioner’s claim of unfairness is not: sup­
ported by the record in that the jury had all the relevant 
evidence in this ease and ' the mere fact that impeaching 
evidence may have been introduced had he taken the stand 
would not, of itself, be violative of Due Process, [Spencer 
v. Teims, 385 U. S. 554 at 565 (1967) ].

3

II

An analysis of the plain meaning of the Ohio statute 
(§2901.01 Ohio Revised Code) makes clear that the intent 
of the Ohio Legislature was not to authorize arbitrary and 
capricious executions, but to attempt to individualize pun­
ishment.

The attack on jury sentencing based on absence of stand­
ards undermines all discretionary punishment procedures, 
up to and including the power of executive clemency, be­
cause Due Process requirements apply to all penological 
systems. [Skinner v. Oklahoma, 316 U.S. 535 (1942)], and 
[Oiaccio v. Pennsylvania, 382 U.S. 399 (1966)], are no au­
thority for petitioner’s argument, as this Court has fre­
quently indicated that the concept of Due Process is not so 
narrow as to exclude discretionary jury sentencing [With­



4

erspoon v. Illinois, 391 U. S. 510 (1968), Williams v. Flor­
ida, 399 U.S. 78 (1970)].

Ohio courts have restricted penalty juries to a con­
sideration of the evidence in the case deciding whether to 
recommend or withhold mercy [State v. Caldwell, 135 Ohio 
St. 424, 21 N.E. 2d 343 (1939)], a “ standard” which can 
he readily evaluated by applicable Due Process criteria, 
unlike the proposed standards of the Model Penal Code. 
Even avowed opponents of capital punishment contend 
that the imposition of standards is not the solution to 
the problem [56 Cal. Law. Rev. 1268, 1270 (1968) ]. Those 
who oppose capital punishment should pursue its elimina­
tion in the legislative arena, where some success has already 
been achieved.

There is a fundamental inconsistency in an approach 
which simultaneously assumes “ irrational, arbitrary and 
capricious” juries and “ enlightened public opinion” which 
no longer tolerates the imposition of the death penalty. 
Petitioner therefore fails to show either Due Process or 
Equal Protection violations under existing Ohio practice.

ARGUMENT

I
THE OHIO STATUTE WHICH PROVIDES 
THAT THE TRIER OF FACT SHALL DE­
TERMINE BOTH GUILT AND PUNISH­
MENT IN A SINGLE VERDICT IN CASES 
OF MURDER IN THE FIRST DEGREE IS 
NOT V I O L A T I V E  OF PETITIONER’S 
RIGHT TO BE FREE FROM SELF-INCRIM- 
INATION.



5

A. Applicable Ohio Statutory and Case Law Concerning 
The Recommendation of Mercy By The Trier of the Facts in 
a Capital Case.

Murder in the First Degree under Ohio law is punishable 
by death unless the court1 or .jury makes a recommendation

1. Ohio law provides for a waiver o f jury trial in a capital case and 
should an accused plead guilty, a bench trial is had to determine the 
degree o f the crime. Ohio Revised Code, Section 2945-06, provides 
in part:

" . . .  If the accused is charged with an offense punish­
able with death, he shall he tried by a court to be composed 
o f three judges, consisting of the judge presiding at the 
time in the trial o f criminal cases and two other judges 
to be designated by the presiding judge or chief justice of the 
supreme court. Such judges or a majority of them may decide 
all questions o f fact and law arising upon the trial, and 
render judgment accordingly. If the accused pleads guilty 
o f murder in the first degree, a court composed o f three 
judges shall examine the witnesses, determine the degree 
o f crime, and pronounce sentence accordingly. In rendering 
judgment of conviction o f an offense punishable by death 
upon plea o f guilty, or after trial by the court without the 
intervention of a jury, the court may extend mercy and re­
duce the punishment for such offense to life imprisonment 
in like manner as upon recommendation o f mercy by a 
ju r y .. .”



8:

of mercy:2 3 . The mandatory death sentence for Murder in 
the First Degree in Ohio was changed in 1898 by the follow­
ing legislative addition to the penalty portion of the statute:

. .unless the jury trying the accused recom­
mends mercy, in which ease the punishment 

■ shall be imprisonment for life.m

The brief filed by Amici contains an extensive review of 
the Ohio cases pertaining to the issue of a mercy recom­
mendation.4 With two exceptions,5 we concur in that review

2. Ohio Revised Code, Section 2901,01,: -
"N o  person shall purposly, and either o f deliberate and 

premeditated malice, or by means o f poison, or in perpetra­
ting or attempting to perpetrate rape, arson, robbery, or 
burglary, kill another.

Whoever violates this section is guilty o f murder in the 
first degree and shall be punished by death unless the jury 
trying the accused recommends mercy, in which case the 
punishment shall be imprisonment for life.

Murder in the first degree is a capital crime under 
Sections 9 and 10 o f Article 1, Ohio Constitution.’ ’

3. 93 Ohio Laws 223 (1898). Ohio has five other statutes conferring 
capital sentencing discretion to a jury and has two non-capital criminal 
statutes conferring that same power.

4. Brief o f Amici, pp. 21 to 26 and footnotes 31 through 41. Herein­
after Amici Curiae NAACP Legal Defense and Educational Fund, 
Inc., and the National Office for the Rights of the Indigent will be 
referred to as Amici.

». It is submitted that the law of Ohio as evinced by the decisions 
o f the Supreme Court o f Ohio is that the granting or withholding of 
a. mercy recommendation is within the absolute discretion o f the jury, 
but to be based upon the evidence in the case.

The conclusion of Amici that a jury must make an affirmative



7

finding in order to grant mercy and none to withhold mercy is merely 
an assumption (See- Amici Brief, page 22, footnote 34). H ie assump­
tion is based upon a superfluous statement by the writer o f the opinion 
in Massa v. State, 175 N.E. 219 ( 1930) .  The court, by way of obiter 
stated that the death penalty was warranted in view o f the evidence in 
the case; that he found nothing in the record to support a recom­
mendation of mercy. The case was not on review as to the basis upon 
which the jury determined the penalty’ and, as a matter of law, could not 
be. (See cases cited by Amici at page 27 o f their brief) If the granting 
or withholding o f mercy cannot be reviewed in Ohio, can it fairly 
be said that Ohio, law, in effect, requires an affirmative evidentiary 
ground to grant mercy and none to withhold it? W e submit that it 
could just as well be said that withholding mercy requires an affirmative 
evidentiary ground.

Amici next state (pages 22-23, footnote 35) that the State o f Ohio 
excludes scrupled jurors from capital cases. Apparently the contention 
is based upon the statement found in the case o f Howell v. State, 102 
O.S. 411, 131 N.E. 706 ( 1921) ,  wherein the court cautioned that any 
decision on penalty should be based on evidence or lack thereof and 
not on any scruples or facts which may have come to their knowledge 
while not acting as a juror. (See direct quote in Amici’s Brief, page 
22-23) Ohio law in regard to exclusion of jurors in a capital case 
is stated in Ohio Revised Code, Section 2945.25 (C ) :

"A  person called as a juror on an indictment may be 
challenged for the following causes:

(C ) In the trial o f a capital offense, that his opinions 
preclude him from finding the accused guilty of an offense 
punishable with death. . .”

This statute was in effect at the time o f  Howell and is still in effect. 
This type o f exclusion was differentiated in Witherspoon v. Illinois, 
391 U.S. 510 (1968), and cannot be interpreted as excluding people 
who have scruples against capital punishment.



8

and will not duplicate the matter in this brief.

Ohio law provides for the introduction of character evi­
dence by a defendant.6 He may parade any number of such 
witnesses to show his reputation and background. The 
State may not introduce any evidence in regard to the char­
acter of a defendant until and unless the defendant tries to 
establish his good character.7 However, the State may in 
its case in chief introduce evidence of any acts of the de­
fendant which, if  material, tend to show motive, intent, ab-

c. Ohio Revised Code, Section 2945.57:

"The number of witnesses who are expected to testify 
upon the subject of character or reputation, for whom 
subpoenas are issued, shall be designated upon the praecipe 
and, except in cases, o f murder in the first and second 
degree, manslaughter, rape, assault with intent to commit 
rape, or selling intoxicating liquor to a person in the habit 
of becoming intoxicated, shall not exceed ten upon each side, 
unless a deposit of at least one per diem and mileage fee for 
each o f such additional witnesses is first made with the 
clerk of the court of common pleas. .

?. Ohio Revised Code, Section 2945.56:

"W hen the defendant offers evidence o f his character 
or reputation, the prosecution may offer, in rebuttal thereof, 
proof o f his previous conviction o f a crime involving moral 
turpitude, in addition to other competent evidence.”



9

senee of mistake or accident on Ms part.8 The latter type of 
evidence must be accompanied by a limiting instruction to 
the jury as to the purpose of the evidence.9 Case law in 
OMo has restricted the introduction of tMs type of testi­
mony in respect to the time, locality and character of the 
act and, in addition, the act must fall within the designation 
of crimen falsi of the common law.10 The credibility of the

s. Ohio Revised Code, Section 2945.59:
. "In any criminal case in which the defendant’s motive or 

intent, the absence o f mistake or accident on his part, or the 
defendant’s scheme, plan, or system in doing an act is mate­
rial, any acts o f the defendant which tend to show his motive 
or intent, the absence of mistake or accident on his part, or 
the defendant’s scheme, plan or system in doing the act in 
question may be proved, whether they are contemporaneous 
with or prior or subsequent thereto, notwithstanding that 
such proof may show or tend to show the commission of 
another crime by the defendant.”

9. State v. Crafton, 15 Ohio App. 2d 160, 239 N. E. 2d 571 (1968), 
reversible error for failure o f the trial court to charge on limited 
purposes o f the testimony even though no request to charge was made.

10. State v. Hickman, 102 Ohio App. 78, 141 N.E. 2d 202 (1956), the 
acts must be so related to the offense charged, in character and point 
o f time, as tend to show intent, motive, habit or state o f mind, pro­
vided acts come within designation o f crimen falsi o f the common law ; 
See also State v. Cocco, 73 Ohio App. 182, 55 N.E. 2d 430 (1943) ; 
within a reasonable period o f time in the same locality.

The Ohio cases reveal that this type o f evidence is very limited. 
See State v. Moore, 149 O.S. 226, 78 N.E. 2d 365 (1948), threats 
by defendant against a third person prior to killing; State v. Strong, 
119 Ohio App. 31, 196 N.E. 2d 801 (1963), boasts made by de­
fendant to third persons o f having committed offenses o f arson and 
sex deviation not admissable in murder case; State v. Chapman, 111



testimony of the defendant or of any witness may be im­
peached by showing prior convictions of crime.11

Ohio App. 441, 168 N.E. 2d 14 (1959), evidence o f prior sex re­
lations with victim’s sister eight years prior to crime charged not 
admissible in rape and incest violation.

n . Ohio Revised Code, Section 2945.42-.

"N o  person is disqualified as a witness in a criminal 
prosecution by reason o f his interest in the event thereof 
as a party or otherwise, or by reason o f his conviction for 
crime. . .Such interest, conviction, or relationship may be 
shown for the purpose o f affecting the credibility o f such 
witness. . .”

This statute permits examination as to convictions of a witness for 
an offense under state laws. State v. Murdock, 172 O.S. 221, 174 N.E. 
2d 543 (1961). It does not include convictions under city ordi­
nances. Coble v. State, 31 O.S. 100 (1876).

Petitioner at page 11 o f his brief, footnote 14, has cited the case 
o f State v. Hector, 19 O.S. 2d 167, 249 N.E. 2d 912 (1969) for the 
proposition that a defendant can be cross examined as to pending 
indictments. The case cited does not stand for that proposition what­
soever. The case involved a witness for the State where the defense 
desired to show that by testifying for the State, the witness was in 
hope o f leniency on his own charges. In this regard the statement 
in Keveny v. State, 109 O. S. 64, 141 N. E. 845 (1923) states the 
law:

"O f course you cannot impeach a witness by merely showing 
an indictment, but you may affect his interest in his present 
testimony. .

The rule as to showing interest by pending indictment would never 
be applicable to a defendant, and we suggest that any attempt to 
do so would be misconduct, grounds for mistrial, and reversible
error.



11

Counsel for petitioner has urged this Court that mitiga 
tion and background evidence of the accused is totally inad­
missible in a capital case in Ohio.12 We cannot agree with 
such statement in view of the opinion of the Ohio Supreme 
Court in this very case.13 We quote from that opinion which 
appears at page 86-87 of the Appendix of this case:

“ Defendant argues that, if an accused elects 
to assert his right against self-incrimination, 
he can not present any evidence which would 
tend to mitigate on the question of his punish­
ment.

“ This is obviously mot true. Defendant can, 
as he did in the instant case, present such
testimony by witnesses other than himself.

(Emphasis Ours)

Petitioner’s reliance upon Ashbrook v. State, 49 Ohio App. 
298,197 N. E. 214 (1935) and State v. Ellis, 98 0 . S. 21,120 
N. E. 218 (1918) is questionable, to say the least, in view of 
the holdings in Shelton v State, 102 0 . S. 3/6, 131 h . E. 704 
(1921) and Hoivell v. State, 102 O.S. 411, 131 N.E. 706

12. Petitioner’s Brief, page 21.

13. State o f Ohio v. James Crampton, 18 O.S. 2d 182, 248 N.E. 2d 614 
(1969).



12

(1921).14 Further, in State v. Caldwell, 135 0. S. 424 at 428, 
21 N. E. 2d 343 (1939) cited by petitioner at page 21, foot­
note 24, of his brief, it should be specifically noted that the 
court’s, reason for finding no prejudicial error in not giving 
the charge requested relating to the jury’s consideration of 
sociological matters and environment which they may find 
from the evidence, was that the requested instruction was 
substantially identical to the answers the Court gave the 
jury. In addition, the mere instruction presupposes that 
sociological and environmental matters were in evidence 
in the case. At page 428 of the opinion, the Court stated:

“ Clearly, the question was not directed to 
the evidence of the environment of the defend­
ant as contained in the record.”

l i . Shelton v. State, 102 O.S. 376, 131 N.E. 733, (1921)
"Syl. 1. It is the privilege of an accused upon trial to 

argue to the jury in person or by counsel every controlling 
fact which the evidence tends to support, and every reason­
able inference therefrom touching the question of his guilt 
or innocence, or which may tend to mitigate or lessen the 
penalty, where the jury are empowered to fix such penalty.

"Syl. 2 . Upon trial, under an indictment for murder in the 
first degree, a refusal to permit the accused in person or by 
counsel to argue to the jury the desirability, advisability or 
wisdom of recommending mercy, is a denial of the right of 
the accused to 'defend in person and with counsel’ under 
Section 10, Article I o f the Constitution o f the State o f 
Ohio.”

Howell v. State, 102 O. S. 411, 131 N. E. 706, ( 1921) 
"Syl. 4. In such a case, it is not error for the trial court 

to permit counsel for the state to argue that a recommen­
dation for mercy should be withheld.”



13

See also State v FroJmer, 150 0. S. 53, 95, 80 N. E. 2d 868 
(1948), wherein the appellant’s entire case was pointed to­
ward an extension of mercy.15 ............

B. The Unitary Trial Procedure In A Capital Case Where 
The Trier of The Facts Determines Both Guilt and Punish­
ment is Fundamentally Fair Under the Due Process Clause 
And Does Not Violate An Accused’s Fifth Amendment Pro­
tection Against Self-Incrimination.

The attack by the petitioner and amici16, on the unitary 
trial procedure has been on two fronts: one, that the pro­
cedure is fundamentally unfair17 in that (a) if an accused 
takes the stand, evidence may be presented which is prej­
udicial to the guilt issue, and (b) if an accused does not

is. State v. Frohner, 150 O. S. 53, 80 N. E. 2d 868 (1948) wherein the 
court also stated at page 117:

"A ll that was sought in this case below was an extension of 
mercy. In an effort to sustain such request the family life 
of appellant’s parents was gone into.”

In State v. Lucas, 93 Ohio App. 281 at 288; 109 N.E. 39 (1952) 
where twelve witnesses testified as to reputation and character the 
court stated:
' "Undoubtedly this testimony was presented for the purpose 

o f influencing the judges in favor of an extension o f mercy.”

16. Brief o f Amici, pp. 72 through 74; brief of petitioner pp. 9 through 
19.

17. Amici’s brief, Appendix A, page 69- But see argument of Anthony 
Amsterdam in Maxwell v. Bishop, 398 U.S. 262 (1970) in 7 Criminal 
Law Reporter 4039 (5-13-70). "O n the single verdict issue, I want to 
make, perfectly clear that we are not relying on any general unarticu­
lated standard o f 'fairness’ . W e are relying on specific constitutional 
rights.”



14

take the stand lie may be sentenced on less than all of the 
relevant evidence; and two, that a capital defendant’s Fifth 
Amendment protection against self-incrimination is violated 
if he exercises his “ constitutional” right to allocution be­
fore verdict on the guilt issue.18 It is to be noted that nei­
ther petitioner nor amici maintain that the State is constitu­
tionally compelled to have a bifurcated trial in a capital 
case.19

This Court in Spencer v Texas, 385 U. S. 554, 567 (1967), 
specifically rejected the bifurcated trial as being a constitu­
tional commandment under the Fourteenth Amendemnt, and 
expressed the view that such a matter was legislative and a 
determination which, if made by the Court, would be an un­
justifiable encroachment upon the powers o f the State.

Not being constitutionally compelled to have a bifurcated 
trial, does the unitary trial unconstitutionally burden the ex­
ercise of an accused’s Fifth Amendment privilege against 
self-incrimination, and further, does the procedure under 
which a capital case is tried in Ohio run afoul of the Due 
Process requirements of the Fourteenth Amendment to the 
United States Constitution!

The petitioner in the instant case elected not to take the 
stand and be subject to cross-examination. The record re­
veals that, petitioner instead presented four witnesses, none

ls. Id. at page 76, footnote 77:
"The effect of the single verdict sentencing procedure 

which he challenges is to confront a capital defendant with 
the grim specter o f  having to sacrifice one or another o f his 
precious constitutional rights, either allocution or seif- 
incrimination.”

19. Id. at page 78, footnote 79.



15

of whom testified in respect to the facts of the crime (R. 278 
et seq). Guilt in this case was never seriously contested and, 
consequently, the petitioner’s case was largely medical in 
nature. The petitioner’s mother testified and gave the jury 
the benefit of the petitioner’s childhood and general back­
ground. (A, 49-59). The medical testimony, because of its 
psychiatric nature, brought out the petitioner’s entire per­
sonality; and because the petitioner felt inclined to intro­
duce various hospital reports, his entire life history was dis­
played to the jury. We can only assume that this was done 
in an effort to mitigate the penalty since there was nothing 
contained in the records which support a conclusion that 
petitioner was not guilty by reason of insanity. Thus, all 
that could be said of petitioner’s life was before the jury 
without the necessity of his having had to take the stand.

Petitioner and amici urge that this type of situation ag­
gravates the ‘tension’ as to his constitutional right to remain 
silent and his desire to produce mitigating testimony. We 
submit that defendant can introduce such evidence by other 
witnesses, and that, nevertheless, the unitary trial is not by 
its; nature unconstitutionally coercive.

The arguments in this regard are very well stated in 
Segura v. Patterson, 402 F. 2d 249 (10th Oir., 1968), wherein 
there appears:

“ One answer to this contention is that miti­
gating evidence could be introduced through 
other witnesses. Nevertheless, it is quite cott- 

.... ceivable as indeed it was shown below, that the , 
accused may be the only available source of 
material mitigating information. Therefore, 
there is a strong compulsion to take the stand.



16

This compulsion does not derive from <my co­
ercion of the State. Instead, it arises from the 
desire of the accused to act in his own en­
lightened self-interest. He is compelled to 
testify only in the sense that it may be to h is . 
advantage to do so. The choice is his embrac­
ing no more substantial ‘chilling effects’ in a 
single verdict situation than it does in any 
other instance. It is always the case that in 
exercising the constitutional right to remain 
silent, the individual is forced to forego his op­
portunity to personally appeal to the jury. 
Whether such an appeal relates to the deter­
mination of guilt or punishment or both, it can­
not he denied that the inducement not to re­
main silent and thus to forego a specific con­
stitutional right does not arise from any un­
necessary burden imposed by the State. We 
conclude that the single-verdict procedure 
does not ‘ needlessly chill the exercise of basic 
constitutional rights’. (Emphasis Ours)

A  defendant during a criminal trial is often faced with a 
similar choice in regard to the issues of self-defense, acci­
dent, duress, insanity, lesser included offenses, and alibi. 
Petitioner and amici might also argue that these issues re­
quire separation on the constitutional claim that a defend­
ant has a Sixth Amendment right to present his defense, but 
that to do so would impinge his Fifth Amendment right to 
remain silent. To carry this to its extreme could in some 
cases involve a four-stage trial, and we can see no reason 
why such a. ruling would not be applicable to all criminal



17

trials where more than one issue may be involved.20 The ef­
fect of such a procedure on the administration of criminal 
justice would be devastating. It would be an affront to the 
jury system and an insult to the intelligence of the people 
of the United States. They are the persons who share in 
the responsibility of the administration of criminal justice 
by the giving of their time and energy to serve as jurors and 
decide different issues under proper instructions by a 
court. The court in Spencer v. Texas, supra, at 565 stated:

‘ ‘ It would be extravagant in the extreme to 
take Jackson as envincing a, general distrust 
on the part of this court of the abilities of 
juries to approach their task responsibly 
and to sort out discrete issues given to them 
under proper instructions by the judge in a 
criminal case, or as standing for the propo­
sition that limiting instructions can never 
purge the erroneous introduction of evidence 
or limit evidence to its rightful purpose.”

and as noted by the Court in its footnote to this premise : 
‘ ‘ Indeed the most recent scholarly study of 

jury behavior does not sustain the premise 
that juries are especially prone to prejudice 
when prior crime evidence is admitted as to 
credibility. Kalven and Zeisel, The American 
Jury (1966), the study contrasts the effect of 
such evidence on judges and juries, and con­
cludes that ‘ Neither the one nor the other can

20 . Petitioner in the case at bar has injected an additional issue which is 
beyond the limitations o f the writ granted herein. Inasmuch as the 
insanity issue was not within the issues designated in the granting of 
certiorari, we have declined to comment in that regard. (Rules o f the 
Supreme Court 40 ( i )  (d ) ( 2 ) .



18

be said to be distinctively gullible or skeptical.’
Id. at 180.” . . . .

The late Justice .Felix Frankfurter in his report to the 
Royal Commission on Capital Punishment stated:

, “ May I:say, with all respect, I do not under­
stand the view that juries are not qualified to 
discriminate between situations calling for 
mitigated sentences.” 21

This Court has recently discussed the question of ‘ com­
pelled’ incrimination in the case of Williams v. Florida, 399 
U. S. 78 (1970) wherein it was stated by Justice White that.: 

“ The defendant in a criminal trial is fre­
quently forced to testify himself and to call 
other witnesses in an effort to reduce the risk 
of conviction. .. .That the defendant faces such 
a dilemma demanding a choice between com­
plete silence and presenting a defense has 
never been thought an invasion of the privil­
ege against compelled self-incrimination. ”

That case dealt with notice o f alibi, but the principle re­
mains the same. Justice White’s further comment that 
there is nothing in the Fifth Amendment which would en­
title a defendant to await the jury’s verdict on. the State’s 
case-in-chief before deciding whether or not to take the 
stand is particularly applicable to the procedure requested 
by petitioner and amici. There have been no added pres­
sures brought to bear on the defendant, and the State has 
not added to the natural consequences o f the trial. He is 
simply left the choice of testifying in an effort to either 
escape conviction or reduce the effect thereof, or not testi­
fying because he feels he stands a better chance remaining

2L Elman, O f Law and Men (1956)



silent. The benefit is with, the defendant in that he can 
make that choice with full knowledge of the possible bene­
fits or detriments to him. As Justice Black stated in his dis­
sent in the Williams case, supra,

“ . .  .and obviously there will be times when the 
trial process itself will require the defendant to 
do something in order to try to avoid a con­
viction.”

The petitioner and amici have particularly stressed the 
case of U. 8. v. Jackson, 390 U. S. 570 (1968) as supporting 
their contention that the unitary trial imposes a needless 
burden which “ chills” the exercise of basic constitutional 
rights. We believe the principles of the Jackson case to be 
clearly distinguishable from the issues in the case at bar. 
First, Jackson dealt with specific constitutional rights: the 
Fifth Amendment right not to plead guilty and the Sixth 
Amendment right to demand a jury trial. As will be shown 
later in this brief, allocution is not a specific constitutional 
right. Second, the petitioner, in the case at bar, was not 
subject to a different penalty depending on his choice of a 
jury or court trial or in his choice of taking the stand or 
not.22 There was, therefore, no extra burden imposed by the 
State. The choice was that of the petitioner, and it must be 
assumed that he made the choice which he knew was most 
favorable to himself. It cannot therefore be said that the 
unitary trial “ needlessly encourages”  the waiver of the 
right to remain silent.

Petitioner next places reliance on JacJison v. Denno, 378 
U. S. 368 (1964). Again, as noted in Spencer v. Texas,

22. See Calloway v. U. S., 399 F. 2d 1006 at 1009 n. 4 (C A D C ) cert, 
denied 393 U.S. 987 (1968) (U S. v. Jackson distinguished) .

19



20

supra, the Court in Jackson v. Denno, supra, was dealing 
with specific constitutional rights and the procedure set 
forth therein was designed as a specific remedy to insure 
that an involuntary confession was not, in fact, relied on by 
a jury, 385 U. S. at 565. Amici’s premise that Jackson v. 
Denno, supra, is not weakened by Spencer v. Texas, supra, 
is erroneously based on an alleged ‘ specific constitutional 
right’ to allocution.

This Court in Hill v. U. S„ 368 U. S. 424, 428, (1962), held 
that allocution is not a constitutional right.23 In Williams v. 
N. Y., 337 U. S. 241 (1949), this Court held that the Due 
Process clause of the Fourteenth Amendment did not re­
quire a judge to have hearings and give a convicted person 
an opportunity to participate in those hearings when he 
came to determining the sentence to be imposed. As stated 
in Seqwra v. Patterson, supra,

23. Hill v. US., 368 U.S. 424, 428 ( 1962)
"The failure o f a trial court to ask a defendant represent­

ed by an attorney whether he has anything to say before 
sentence is imposed is not o f itself an error o f the character 
or magnitude cognizable under a writ o f habeas corpus. It 
is an error which is neither jurisdictional nor constitutional.
It is not a fundamental defect which inherently results 
in a complete miscarriage o f justice, nor an omission incon­
sistent with the rudimentary demands o f fair procedure.” 
(Emphasis ours)

Although the Hill decision was based on a non-capital case, the con­
stitutional question involved is the same. See Myers v. Frye, 401 F. 2d 
18, 21, (7th O r. 1968), a capital case where the doctrine o f  Hill was fo l­
lowed.



21

“  If a judge need not allow allocution as a 
constitutional right when determining the 
penalty, it follows that there is likewise no- 
such right to so influence a jury.”

The cases of Skinner v. Oklahoma, 316 Uv S. 535 (1942) 
and Specht v. Patterson, 386 U. S. 605 (1967) do not sup­
port petitioner or amici’s statement that allocution is a con­
stitutional right.24 The Specht case cited by petitioner and 
amici adhered to the decision of Williams v. N. Ysupra.  
However, the court could not. extend the Williams v. N. Y 
doctrine to a Colorado habitual sex offender procedure 
which did not make the commission of a specified crime the 
basis for sentencing. The question, as noted by the court, 
was similar to the recidivist cases where a distinct issue was 
presented and naturally defendant must have a full oppor­
tunity to be heard, etc. Thus, no comparison can be used by 
petitioner insofar as the rationale of the Specht case is con­
cerned. The petitioner in the instant case had an oppor­
tunity to be heard, etc. Moreover, the petitioner was free 
to place in evidence mitigating and background evidence, 
which he did through his mother. Psychiatric evidence was 
introduced going toward diminished responsibility and in­
sanity.

The Skinner case, supra, was decided on an equal pro­
tection basis and not on his opportunity to be heard. There, 
as in the case of Yick Wo v. Hopkms, 118 IT. S. 356 (1886), 
there was an invidious discrimination. As will be shown in 
our “ Standards” argument, no invidious discrimination can 
be shown in a unitary trial procedure.

Consideration of what is stated by the Court in Williams 
v. N. Y., supra, 251-2:

2i. Brief of Amid, page A-71 and footnote 77 at page A-75-76.



22

. .And it is conceded that, no federal consti­
tutional objection would have been possible if 
the judge here had sentenced appellant to 
death because appellant’s trial manner im­
pressed the judge that appellant was a bad risk 
for society, or if the judge had sentenced him 
to death giving’ no reason at all. ” ■■■■■

implies that allocution is not a specific constitutional right. 
I f a judge may isentence a, man for no reason at all, al­
locution cannot he said to have constitutional status.

Under Ohio practice, no special procedure has been en­
acted for allocution in a capital ease, other than by the de­
fendant’s opportunity to testify or to have other witnesses 
testify at the trial itself. There is nothing in Ohio compar­
able to the Federal sentencing procedure under rule 32 (a) 
of the Federal Code of Criminal Procedure which specifi­
cally provides for the court to consider evidence in miti­
gation. In view of this, the cases cited by amici and peti­
tioner concerning procedural Due Process do not apply. An 
example is the case of Coleman v. U.S., 334 F. 2d 558 
(D. C. C:ir. 1964), where, after the District of Columbia 
mandatory death penalty statute was amended to pro­
vide for recommendations of life imprisonment, a statute 
was enacted to establish a procedure for reduction of 
sentence. As stated at page 562 in that opinion:

“ Whereas in cases charging murder in the 
first degree after March 22, 1962, a jury was 
authorized to recommend life imprisonment, as 
to appellant’s case a ‘procedure’ was estab­
lished whereby the judge was ‘to consider the 
circumstances in mitigation and in aggrava­
tion.” (Emphasis, Ours).



23

In snebt.a situation, as in.a split-vei'dict procedure, allo­
cution has specifically been provided for by statute and
procedural Due Process would then require a fair deter­
mination of the issues involved. In this sense only would 
allocution as part of the sentencing process be subject to the 
scrutiny of Due Process.The statement of amici at page 71, 
footnote 75, that allocution is a constitutional right is not 
supported by the decisions cited in that footnote. See Green 
v. U.8., 313 F. 2d 6 (1st Oir. 1963); U.S. v Johnson, 315 F. 
2d 714 (2nd Cir. 1963); and Behrens v. U. 8., 312 F. 2d 223 
(7th Oir..1962), affirmed 375 U.S. 162 (1962). Those de­
cisions w7ere based in two instances on rule 32 (a) of Federal 
Rules of Criminal Procedure and in the other case on rule 
43 requiring presence of defendant and counsel. In each 
case, the procedure giving the opportunity for allocution 
was in some way erroneously conducted. But there is 
nothing in those opinions which can be interpreted as hold­
ing allocution in and of itself to be a constitutional right.25

25. See U.S, ex rel Darrah v. Briefly, 290 F. Supp. 960 (1968) at 963 
where it is stated:

"However, there is no constitutional right to allocution. McGrady v. 
■Cunningham, 296 F. 2d 600, 96 A. L. R. 2d 1286 (4th Cir. 1961) ; Appli­
cation o f Rodriquez, 226 F. Supp. 799 (D . N. J. 1964) ; United States ex 
rel. Elksnis v. Gilligan, 256 F. Supp. 244 (S. D. N. Y. 1966). Although 
allocution is afforded a defendant as of right in all Federal Criminal pro­
ceedings, F. R. Crim. Proc. 32 (a.) ; United States v. Allegrucci, 299 F. 2d 
811 (3rd Cir. 1962), the basis therefor does not rest upon constitutional 
grounds. Indeed, the Supreme Court o f the United States has expressly 
indicated its reluctance to base the Federal right embodied in Federal Crim­
inal Rule 32 upon the Constitution.

" [1 2 } Instead, it merely observed that this right is "ancient in the law.” 
United States v. Behrens, 375 U.S. 162 165, 84 S, Ct. 295, 11 L. Ed. 2d 224



Although Ohio has a. mandatory statute requiring the-court 
to inquire of the defendant whether he has anything to say 
before sentence is pronounced126, the practice, because of the 
unreviewability of the death sentence, is a mere f  ormality in 
capital cases and the two non-capital cases in Ohio where *

(1963).
"See also McGrady v. Cunningham, 296 F. 2d 600 (1961). A state 

court conviction o f murder in the first degree where no allocution was had. 
The Court stated at page 602,

"The only two cases cited on this point are federal cases, Couch v. US., 
98 U.S. App. D. C. 292, 235 F. 2d 519, and Green v. US., 365 U.S. 301, 
81 S. Ct. 653, 5 L. Ed. 2d 670. Both o f these cases arose under rule 32 
(a) F. R. Cr. P., 18 U. S. C. A., which provides, insofar as material, as 
follows:

'Before imposing sentence the court shall afford the de­
fendant an opportunity to make a statement in his own be­
half and to present any information in mitigation o f pun­
ishment.’

"'There is no similar rule applicable by statute or rule o f court in Virginia 
and apparently it has never been suggested before that there is any such 
rule in Virginia . . .

"W e conclude therefore that there is no merit in the appellant’s con­
tention on this point and we may further remark in passing that even under 
the federal rule failure to grant the right o f allocution directly to the 
prisoner rather than to counsel for the prisoner would not entitle the 
prisoner to a new trial. The only effect would be to set aside the sen­
tence and send the case back for resentencing after compliance with the 
rule. See Couch v. U. S., supra, and Green v. U. S., supra. And this 
is also the rule in the states that still require allocution.”

26. Ohio Revised Code, Section 2947.05:
"Before sentence is pronounced, the defendant must be 

informed by the court o f the verdict o f the jury, or the find­
ing o f the court, and asked whether he has anything to say 
as to why judgment .should not be pronounced against him.”



25 ‘

a jury fixes the puuishmefit. It is to be noted also that the 
Ohio statute is far short of Federal Buie 32 (a) which speaks 
of evidence in mitigation.

In most non-capital cases, the defendant can, after being 
convicted, be referred to a probation department for a j)re­
sent ence investigation and report.27 28 If the court refuses a 
referral to the probation department, the defendant can 
still invoke Ohio Bevised Code, Section 2947.06 to hear 
testimony to mitigate the sentence.®8

27. Ohio Revised Code, Section 2951.02:
"Where the defendant has pleaded guilty, or has been 

found guilty and it appears to the satisfaction of the judge 
or magistrate that the character o f the defendant and the 
circumstances o f the case are such that he is not likely again 
to engage in an offensive course o f conduct, and the public 
good does not demand or require that he be immediately 
sentenced, such judge or magistrate may suspend the im­
position o f the sentence and place the defendant on pro­
bation upon such terms as such judge or magistrate deter­
mines.”

28. Ohio Revised Code, Section 2947.06:
"The trial court may hear testimony o f mitigation o f a sen­

tence at the term of conviction or plea, or at the next term.
The prosecuting attorney may offer testimony on behalf o f  
the state, to give the court a true understanding o f the case. 
The court shall determine whether sentence ought immedi­
ately to be imposed or the defendant placed on probation. 
The court o f its own motion may direct the department of 
probation o f the county wherein the defendant resides, or its 
own regular probation officer, to make such inquiries and 
reports as the court requires concerning the defendant, and 
such reports shall be confidential and need not be furnished ; 
to the defendant or his counsel or the prosecuting attorney 
unless the court, in its discretion, so orders ,



26

In capital cases, inasmuch as the sentence of life or death 
is unreviewable either by the trial court or appellate court,
the statute means nothing insofar as mitigation is con­
cerned, and the only effect of error in this regard is to 
send the case back for resentencing.89

We earnestly submit that the arguments advanced here in 
support of bifurcation in the trial of a capital case are less 
compelling than the same arguments raised concerning the 
recidivist trial procedure in Spencer v. Texas, supra. In 
Spencer, the defendant’s prior convictions were in evidence, 
whether or not he testified. In the case at bar, however, 
petitioner’s prior convictions could come to the knowledge 
of the jury without his approval* 30 only in two ways: (1) 
through cross-examination had he chosen to testify, and/or 
(2) through evidence of his prior convictions introduced 
pursuant to Section 2945.59, Ohio Revised Code.31 32 As the 
record discloses, the State did not offer such evidence in 
this case for the reason that the prior acts would not have 
gone to the matters mentioned in the statute. Remoteness 
would have been an additional limiting factor.3,2 It therefore 
appears that even the dissenters in Spencer, under the facts 
presented in this case, would agree that petitioner’s con­
stitutional rights have not been violated.

An exhaustive review of the cases in this matter dis­
closes that the split verdict procedure may, in some ways,

29. See Sals by v. State, 119 O. S. 314, 164 N. E. 232 (1928) ; Slate v. 
Ausberry, 83 Ohio App. 514, 82 N. E. 2d 751 (1947)
30. It should be remembered that petitioner himself introduced his re- 

cividist record by offering various hospital records.
31. See footnote 8, supra.
32. See footnote 10, supra.



be a more modern method of resolving the determination 
of guilt or innocence and punishment. However, none of 
the cases have held the single verdict procedure unconsti­
tutional. Some of the courts have actively suggested in 
their opinions that their legislatures enact statutes re­
quiring bifurcated trials.3,3 Some courts have merely stated 
the. proposition that this is not a judicial question but a 
legislative one.* 34

W e would urge, as was suggested in Frady v. U. S., 348 
F. 2d 84 (D. C. Cir. 1964); Pope v. U.S., 372 F. 2d 710, (8th 
Cir. 1967); and U.S. v. Curry, 358 F. 2d 904, 914-915 (2nd 
Cir. 1966) that because of the inherent problems in the 
adoption of such a procedure, the question is best left with 
the respective legislatures of the States. Only through com­
prehensive studies of the individual procedural and sub­
stantive laws of the1 respective states could such a proced­
ure be put into effect without chaos.

As stated by Mr. Justice Cardozo in Snyder v. Massachu­
setts, 291 TJ. S. 97, 105 (1934), and repeated often by the 
court, a state rule of law

“ does not run foul of the Fourteenth Amend­
ment because another method may seem to our 
thinking to be fairer or wiser or to give a surer 
promise of protection to the prisoner at 
bar.”

The Court has additionally stated that it was not a rule- 
making organ for the promulgation of state rules of crim­

33. State v. Mount, 152 A. 2d 343 (1959), 30 N . J. 195 (legislation 
subsequently enacted).

; U. S. ex rel, Thompson v. Trice, 258 P. 2d 918, 922 (3rd Cir. 1958) 
(Legislation in Pennsylvania subsequently enacted).

34 Johnson v. Commonwealth, 158 S. E. 2d 725.

27



28

inal- procedure, ■■Spme&r -v. -Terns, .385 :\?U. S. 554, 564
(1967),

The trial in the instant case was fundamentally fair. 
Neither impeachment evidence nor prior convictions of 
crime were introduced by the State in the instant case. Had 
the same been introduced the court under Ohio law would 
have given the jury instructions concerning the limited pur­
pose of such evidence. The petitioner was able to intro­
duce background evidence and could have, if he so desired, 
introduced character testimony. Petitioner’s and amici’s 
objection to the unitary trial because of the possible infus­
ion of prejudicial evidence concerning these latter issues is 
effectively answered in Michelson v. U. S., 335 IT. S. 469, 
485 (1948):

“ limiting instructions on this subject are no 
more difficult to comprehend or apply than 
those upon various other subjects.”

To say that allocution is a specific constitutional right is to 
read into the Constitution what is not there. The argu­
ments of petitioner and amici based on that premise must 
fall.

The State of Ohio has as much, if  not more, of a valid 
state purpose in maintaining its unitary trial proceedings in 
a capital ease as Texas had in enforcing its former reeividist 
statute in a unitary trial.

The unitary trial procedure has been in use throughout 
the history of our country by every state in the Union. 
There has been no showing in the arguments advanced by 
petitioner why Ohio law and practice should be an excep­
tion to the statement in Spencer v. Texas, supra:



29

“ To say that the two-stage jury trial in. the . 
English-Conneeticut style is probably the fair­
est, as some commentators and courts have 
suggested, and which we might well agree were 

' the matter before us in a legislative or rule 
making contest, is a far cry from a constitu-- 
tional determination that this method of hand­
ling the problem is compelled by the Four­
teenth Amendment.

. . .“ Two-part jury trials are rare in our juris-- 
prudence; they have never been compelled by 

. this court as a matter of constitutional 
law, or even as a matter of federal procedure.
To take such a step would be quite beyond the 
pale of this court’s proper function in our Fed­
eral system. It would be a wholly unjustifiable 
encroachment by this Court upon the constitu­
tional power of States to promulgate their own 
rules of evidence to try their own state-created 
crimes in their own state courts, so long as 
their rules are not prohibited by any provision 
of the United States Constitution, which these 
rules are not. ”

THE DUE PROCESS AND EQUAL PRO­
TECTION CLAUSES OF THE FOUR­
TEENTH AMENDMENT TO THE UNITED 
STATES CONSTITUTION DO NOT RE­
QUIRE STATUTORY STANDARDS FOR 
THE IMPOSITION OF THE DEATH PEN­
ALTY BY THE JURY IN A CAPITAL CASE.

The development of laws relating to capital crimes in the 
United States demonstrates a pattern beginning in the 
Nineteenth Century and continuing to the present day which 
shows increasing selectivity in imposing the death pen­



30

alty.35 An analysis of tile statutes of the State of Ohio and 
other states shows that the legislatures of the several states 
have attempted in various ways to permit those who try the 
ease, whether judge or jury, some flexibility in deciding 
whether the death penalty is called for in every “ cap­
ital”  crime.3:6 There can be no disputing the fact that the 
motivation of the legislatures has been largely humane and 
that the enactments are attempts to institutionalize the in­
creasing sensitivity of civilized men and women with refer­
ence to the application of the death penalty.37

Petitioner and those supporting his position in this ease 
argue that the practice in Ohio courts permitted under 
Section 2901.01, Ohio Revised Code, amounts to killing 
people at the whim of a jury. We will attempt to demon­
strate that the facts argue otherwise, and that merely be­
cause statistics show that juries are becoming more and 
more selective in the administration of the death penalty, 
this does not demonstrate that the provisions of Ohio’s 
First Degree Murder statute have become meaningless 
with reference to punishment.

35. See Bedau, The Death Penalty in America, 27 (revised edition 1967) . 
See also Appendix B, Brief o f Amici.

36. Ohio Revised Code, Section 2901.01 (first degree murder)
Ohio Revised Code, Section 2901.02 (killing by obstructing a rail­
road)
Ohio Revised Code, Section 2901.03 (killing o f a guard by a prisoner) 
Ohio Revised Code, Section 2901.04 (killing a police officer)
Ohio Revised Code, Section 2901.27 (kidnapping for extortion)
Ohio Revised Code, Section 2901.28 (killing a kidnap victim)

See also Appendix B, Brief of Amici.

37V See Bedau, The Death Penalty in America, 1-8 (revised edition, 1967)



31

In effect, petitioner is employing a quantitative argument, 
saying that because only a minority of persons convicted of 
capital crimes are actually sentenced to death, one must 
view life imprisonment as the principal punishment pre­
scribed for Murder in the First Degree. As is often the case 
in the interpretations of the Constitution by this Court, 
we think it is important to analyze first the plain meaning 
of the words in Ohio Revised Code, Section 2901.01 relating 
topenalty:

“ Whoever violates this section is guilty of 
murder in the first degree and shall be pun­
ished by death unless the jury trying the ac­
cused recommends mercy, in which case the 
punishment shall be imprisonment for life.”

While by no means attempting to exalt form over substance, 
we think it significant to note that the Ohio statute speaks 
in terms of “ a recommendation of mercy.” * 2 3 4 *’8

3S. Black’s Law Dictionary, Ath Edition, defines "mercy” as follows: 
"The discretion of a judge, within the limits o f positive 

law, to remit altogether the punishment to which a con­
victed person is liable, or to mitigate the severity o f his sen­
tence; as when a jury recommends the prisoner to the mercy 
o f the court.”

Webster’s New Twentieth Century Unabridged Dictionary, 2nd Edi­
tion. defines "mercy” as:

"1. A  refraining from harming or punishing offenders, 
enemies, persons in one’s power, etc., kindness in excess of 
what may be expected or demanded by fairness; forbearance 
and compassion.

2. A  disposition to forgive, pity, or be kind.
3. The power to forgive or be kind; clemency; as, 

throw yourself on his mercy.
4. Kind or compassionate treatment; relief o f  suffer­

ing.”



32

It is respectfully submitted that it would not be hyper- 
literal to point out that the definitions of “ mercy”  imply 
discretion. Indeed, the word itself is used in defining 
mercy. In the legal sense and in the recognized universal 
definitions of the word, which surely must have some sig­
nificance for legislatures in the process of enacting our 
laws, the word implies the power to forgive or to be kind 
in excess of what may be expected or demanded by fair­
ness. Petitioner here seeks to argue that the exercise of 
such a power is not only unconstitutional within the mean­
ing of the applicable clauses of the Fourteenth Amend­
ment, but “ irrational.”39 It is respectfully submitted that an 
honeist examination of the words of the statute with atten­
tion to their accepted meanings, cannot but result in the 
conclusion that the exercise of the power is not irrational, 
but is, rather, the exercise of forbearance and compassion, 
human qualities long exalted in both the moral and legal 
traditions of civilized society.

Petitioner and amici seek to establish that because it is 
statistically demonstrable that- capital punishment is not 
imposed in a majority of cases where defendants are con­
victed of capital crimes, such disposition is the “ normal” 
course of justice.40 Presumably, it makes the imposition 
of capital punishment in such cases “ abnormal” , and also 
“ abnormal” the State’s attempts to provide every possible 
opportunity for the exercise of human ideals, including sta- 
utory means by which defendants convicted of capital crimes 
can be spared the death penalty.

39. Brief o f petitioner, James Edward Crampton, page 31.

40. Brief of amici, page 69-



33

We maintain, therefore, that an observation and analysis 
of the statute involved cannot but result in the conclusion 
that it manifests a bona fide attempt to permit juries the 
exercise of human qualities which may go beyond the mere 
basic requirements of justice.41

It will no doubt be argued that the absence of standards 
permits the exercise of the decision-making power of the 
jury in capital cases on basis other than compassion and 
kindness; indeed, perhaps on the basis of prejudice, fear, 
hatred, and other human qualities not so exalted. The 
question then becomes: is it a violation of Due Process or 
Equal Protection when punishment consists of two possible 
alternatives to be selected in the discretion of the jury! 
It is submitted respectfully that the answer to the last pre­
ceding question is “ no” , whether the Ohio concept of 
“ mercy”  or the California concept of “ discretion” is relied 
upon, and the remainder of the argument herein is an at­
tempt to support that conclusion.

Petitioner contends that Skinner v. Oklahoma, 316 U. S. 
335 (1942), means that Ohio cannot give its juries power to 
draw a distinction between those capital defendants who 
receive the death penalty and those who are sentenced to 
life imprisonment. I f  so, then how may Ohio give its 
Governor the power! The Constitution of Ohio vests the 
entire pardoning power in the Governor.4" The only limi­
tation on such power is found in the Constitution itself.43

+i. See Brief o f amid curiae United States I (A ) 1.

42. Article III, Section II o f the Ohio Constitution.

43. See Lkavoli v. Slate, 20 O. O. 562, 568, 34 N. E. 2d 450, (1935).



No other body, whether legislative or judicial, can exercise 
like power.44 The Governor may grant a reprieve, com­
mutation, or pardon to any person under sentence of death 
with or without notice or application from the convicted 
felon.45

In Ohio, any condemned person can make application to 
the Pardon and Parole Commission. Each application re­
ceived is acted upon by the Commission. The Commission, 
after investigating the case, makes a recommendation for 
or against the granting of the reprieve, pardon, or com­
mutation to the Governor.46 The Governor acts individ­
ually upon each application he receives. After a capital 
felon has exhausted all of his judicial appellate remedies, 
he still is afforded this executive remedy. The exercise 
of the power of clemency is sought by almost all convicted 
felons sentenced to death in Ohio.47 If a convicted capital

44. Knapp v. Thomas, 39 O. S. 377, 48 Am. Rep. 462 (1883).
43. Ohio Revised Code, Section 2965.14.
+6. Ohio Revised Code, Section 2965.13.
47. The following table shows the ultimate disposition o f cases involving 
the death penalty in Ohio. These statistics were provided by the Gover­
nor’s Office, Commissioner o f Corrections, Ohio Penitentiary. From the 
table, it can be seen that one-third of all the death sentences in the State 
o f Ohio from 1956 up to and including July, 1970, were commuted by the 
Governor.

34

Years Men Rec’d. Executed Lima State 
Hospital

Commuted Death
Row

1956-60 28 12 4 12 0

1961-65 24 3 2 12 7
1966-70 39 0 0 6* 33

Total 91 15 6 30 40
^During this period from 1966 up to and including July 2, 1970, there 

were only six (6 ) commutations o f sentences granted by the Governor. .



felon is denied Due Process and Equal Protection by the 
jury imposing the death penalty without standards, then 
the same defendant is denied Due Process and Equal Pro­
tection when the Governor sees fit to grant one convicted 
felon a pardon or commutation and not another. Both 
would have to be declared unconstitutional if either one 
were so declared. Stated otherwise, i f  the Governor’s 
clemency power is not violative of Due Process and Equal- 
Protection guarantees, then it cannot be a violation of those 
guarantees for a state to grant a trial jury the right to 
recommend mercy.

Petitioner relies principally on two decisions of this 
Court to support his contention that the imposition of the 
death penalty within the discretion of the jury is a violation 
of Due Process and Equal Protection. First is the case of 
Skinner v. Oklahoma, supra. Petitioner relies on this case 
as authority in support of the Equal Protection argument 
because the court in that- case held that the State of Okla­
homa could not sterilize thieves without sterilizing em­
bezzlers. Citing the case of Yick Wo -v. Hopkins> 118 U. S. 
356 (1886), the Court in Skinner said:

“ When the law lays an unequal hand on 
those who have committed intrinsically the 
same quality of offense and sterilizes one and 
not the other, it has made as invidious a dis­
crimination as if it had selected a particular 
race or nationality for oppressive treat­
ment.48

The law of the State of Ohio makes no such invidious dis­
crimination. It simply says that the punishment for Mur­
der in the First Degree shall be death, and that the jury

48. Skinner v. Oklahoma, 316 U. S. 535, 541 (1942).

35



36
which hears the case will have the right to decide whether 
the punishment in a particular case, in its discretion, should 
he imprisonment for life. There is no distinction between 
First Degree murderers in the law. The distinction is 
made and the discrimination lies in the decision of the 
jury which hears the case. The petitioner’s attempt to 
argue that the power thus granted First Degree Murder 
juries hy the law of Ohio to discriminate is invidious does 
not succeed. Indeed, in Yick Wo, this Court struck down 
a licensing law which permitted discrimination against 
individuals of a specific nationality because the evidence 
disclosed that persons of Chinese origin had, in fact, been 
discriminated against.49 In the instant case, however, there 
is no showing and no argument that the operation of Ohio’s 
First Degree Murder statute has been unfair or discrim­
inatory on the basis of race, creed, color, or any of the 
other constitutionally objectionable grounds for discrim­
ination. Can there be invidious discrimination in the ab­
stract? In the instant case, this Court is asked to declare 
a statute unconstitutional because the jury is given cer­
tain power within its discretion and not subject to stand­
ards in the usual statutory sense. Because the jury is not 
bound to specify its standards in the exercise of its judg­
ment as to punishment, this Court is asked to create a 
presumption that the decisions of a jury in such a situ­
ation are irrational, therefore, invidious and therefore 
violative of the Equal Protection clause of the Fourteenth 
Amendment. We fail to see how this Court can find “ in­
vidious discrimination in the air.” 50

49. Yick W o v. Hopkins, 118 U. S. 356, 373 (1886)

50. See Oyler v. Boles, 368 U. S. 448 (1962).

*



37

In support of petitioner’s claim that his Due Process 
rights have been violated, he cites Giaccio v. Pennsylvania, 
382 U. S. 399 (1966), in which this Court overturned a 
Pennsylvania statute permitting the assessment of costs 
against acquitted defendants, among others, and which 
imposed the threat of imprisonment for non-payment of 
such costs. Following a long and well-established line of 
decisions of this Court, it held in Giaccio that:

. .a law fails to meet the requirements of 
the due process clause if it is so vague and 
standardless that it leaves the public uncer­
tain as to the conduct it prohibits or leaves 
judges and jurors to decide without any legally 
fixed standards what is prohibited and is not 
in each particular case. . . .”S1 (Emphasis 
ours)

It is apparent that the court was discussing the require­
ment that laws specify what conduct is prohibited in order 
to constitute a violation of law. In Giaccio, the situation 
could arise where a person was found not guilty and yet 
could be punished. That is a far cry from providing, as 
Ohio law does, that a person convicted of Murder in the 
First Degree must be put to death unless the jury which 
convicts him decides that his life may be spared. We, there­
fore, respectfully contend that Giaecio is inapplicable.

As petitioner and amici point out, no attack on the im­
position of the death penalty at the discretion of the jury

si. Giaccio v. Femrsylvcmia, 382 U. S. 399, 402 (1966).



lias succeeded.5,2 Indeed, even as this Court has approached 
the parameters of the issue presented in this case, it has, 
in more than one instance, indicated that in its view the 
administration of capital punishment as in Ohio is not 
violative of Fourteenth Amendment guarantees. As re­
cently as last term, in the case of Williams v. Florida, 399 
U. S. 78 (1970), the Court, in discussing the question of 
jury size as a Sixth Amendment right applied by the 
Fourteenth Amendment to the states, had this to say:

“ Legislatures may well have their own views 
about the relative value of the larger and 
smaller juries, and may conclude that, wholly 
apart from the jury’s primary function, it is 
desirable to spread the collective responsibil­
ity for the determination of guilt among the 
larger group. In capital cases, for example, 
it appears that no state provides for less than 
12 jurors—a fact which suggests implicit rec­
ognition of the value of the larger body as a 
means of legitimating society’s decision to im­
pose the death penalty.”

Additionally, in Witherspoon v. Illinois, 391 U. S. 510, 514 
(1968), this court described the responsibility incumbent 
upon a jury in a First Degree Murder case:

‘ ‘ Guided by neither rule nor standard, ‘free 
to select or reject as it (sees) fit ’, a jury that 
must choose between life imprisonment and 
capital punishment can do little more— and 
must do nothing less— than express the con- 52 * *

52. Spencer v. Texas, 385 U. S. 554 (1966) ; In Re Ernst Petition, 294
F. 2d 556 (3rd Cir., 1961) ; State v. Crompton, 18 Ohio St.2d 182, 
248 N. E. 2d 614 (1969) ; Chatterton v. Dutton, 223 Ga. 243, 154
S. E. 2d 213 (1967).



science of the community on the ultimate ques- , 
tion of life or death.”

And finally, the comment of the court in Spencer v. Tex­
as, 385 U.S. 554,560 (1967) which has been relied upon:

“ Nor is it contended that it is unconstitu­
tional for the jury to assess the punishment 
to be meted out to a defendant in a capital 
or other criminal case, or to make findings as 
to whether there was or was not a prior con­
viction even though enhanced punishment is 
left to be imposed by the judge. The states 
have always been given wide leeway in divid­
ing responsibility between judge and jury 
in criminal cases,”53

Petitioner contends that Ohio does, in fact, have a stand­
ard by which juries in capital cases are guided in deter­
mining the question of punishment.54 Petitioner unsur­
prisingly characterizes that standard as inadequate, an in­
teresting criticism which raises the question of the ability 
of this, or any, court to deal with what would appear, to be 
the. recurring question of adequacy of standards if peti­
tioner’s position in this case is sustained. Assuming 
arguendo that standards are required, let us examine the 
Ohio standard with a view to determining its adequacy. 5

5S. Perhaps no discussion o f the Court’s view o f the law in this area is 
complete without reference to footnote 8 in Giaccio,. supra:

"In so holding we intend to cast no doubt whatever on the 
constitutionality of the settled practice of many states to 
leave to juries finding defendants guilty o f a crime the pow­
er to fix punishment within legally prescribed limits.”

See also Winston v. U. S., 172 U, S. ,510 (1899).

5 4 Brief of petitioner, James Edsvard Crampton, page 20.



40

The Ohio standard is exemplified in the holding of 
Howell v. State, 102 Ohio St. 411, 131 N. E. 706 (1921), 
as interpreted in State v, Caldwell, 135 Ohio St. 424, 21 N.E. 
2d 343 (1939), and what has been described as the Howell- 
Caldwell charge to Ohio capital case juries:

“  (If you find the defendant guilty of first 
degree murder) then you null have one further 
duty to perform, and that is, you will deter­
mine whether or not you will extend or with­
hold mercy. . . .In that connection whether you 
recommend or withhold mercy is a matter sole­
ly within your discretion calling for the exer­
cise of your very best and most profound judg­
ment, not motivated by considerations of sym­
pathy or as a means of escaping hard or dis­
agreeable duty, but must be considered by 
you in the light of all the circumstances of 
the case with respect to the evidence submitted 
to you and the other circumstances surround­
ing this defendant.” 55

If  we may describe the Ohio rule as articulating a stand­
ard of evidence in the case, it would appear that such a 
standard would conform with the requirements of Due 
Process and Equal Protection, inasmuch as it limits the 
jury to a consideration of the duly admitted evidence, which 
has, of course, been subject to the rules of admissibility and 
other Due Process guarantees in making its determination 
as to sentence. We submit that such a standard is thereby 
readily judgable by current Equal Protection and Due 
Process criteria.

A  discussion of standards with reference to the points 
raised by petitioner leads to a further consideration. As- 55

55. State v. Caldwell, 135 Ohio St. 424; 21 N. E. 2d 343 (1939).



41

suming again that standards are necessary by virtue of 
Fourteenth. Amendment requirements, it is not unfair to 
ask: what kind of standards? Petitioner fails, somewhat 
mystifyingly, to specify the nature o f the standards which 
should guide a jury in determining the question of pun­
ishment. Nevertheless, mention is made by amici of the 
standards suggested by the Model Penal Code.56 As this 
court is well aware, the Model Penal Code contemplates a 
separate penalty phase of the trial if  the trial court does 
not impose a sentence of felony of the first degree, which 
it must do if it is satisfied that any of several mitigating 
circumstances exist. The death penalty may be imposed 
in the second stage of the proceeding in the discretion of 
the court. The Code provides that such discretion shall 
be exercised taking into account the aggravating and miti-

56. American Law Institute, Model Penal Code, §201.6 (Tentative Draft 
No. 9, 1959) ; See also brief o f  amid, page 9.



gating circumstances, enumerated in the code.57

The aggravating circumstances proposed by the Model 
Penal Code are embodied in many instances in existing 
state statutes,58 Their applicability as standards is there­
fore operative in some jurisdictions, although usually in 
the form of separately defined crimes. Perhaps the most 
interesting of the proposed aggravating circumstances in 
the Model Penal Code is the last mentioned: “ that the 
murder was especially heinous, atrocious, or cruel, mani-

42

57. The aggravating circumstances are these:
"  (a) The murder was committed by a convict under sentence 

of imprisonment.
(b) The defendant was previously convicted of another murder 

or of a felony involving the use or threat of violence to the person.
(c) At the time the murder was committed, the defendant also 

committed another murder.
' (d ) The defendant knowingly created a great risk o f death to
many persons. ' ' ’ ........

(e) The murder was committed while the defendant was en­
gaged or was an accomplice in the commission of, or an attempt to 
commit, or flight after committing or attempting to commit robbery, 
rape, or deviate sexual intercourse by force or threat o f force, ar­
son, burglary, or kidnapping,

( f )  The murder was committed for the purpose o f avoiding or 
preventing a lawful arrest or effecting an escape from lawful cus­
tody.

(g ) The murder was committed for pecuniary gain.
(h ) The murder was especially heinous, atrocious, or cruel, 

manifesting exceptional depravity.”

58. Ohio Revised Code, Section 2901.01; Connecticut Gen. Stat. §53-10; 
Georgia Code Ann. §26-1101, Ga. Laivs 1970, No. 1333; N .Y. Penal 
Law §125.30 and §125.35; Texas Code Crim. P. Ann. art. 37.07 (2) 
(b ).



43

testing exceptional depravity.” 59 It is further respectfully 
submitted that this language approaches very closely the 
Ohio “ standard”  of limiting the jury to a consideration of 
the evidence in the case in exercising its discretion with 
' reference to whether or' riot capital punishment shall he 
imposed: Such a finding would obviously depend on the
exercise of “ discretion” by the sentencing judge in review­
ing the evidence. The necessity of exercising a great deal 
of discretion would still remain if all of the mitigating 
and aggravating circumstances suggested by the Model 
Penal Code were applied in the determination by the court 
as to whether capital punishment should be imposed: ih a  
proper case. Even opponents of capital punishment, while 
arguing as petitioner does here that the absence of stand­
ards in jury deliberations violates due process, admit that

59. American Law Institute, Model Penal Code, §201.6 (Tentative Draft 
•No. 9, 1959).



the imposition o f standards is no solution.60
It appears therefore that petitioner and amici are seek­

ing the elimination o f the death penalty by collaterally 
attacking the method of its administration and imposition. 
Thus, the real argument appears to be that the death 
penalty should be eliminated because it is an absolute pun­
ishment and no system of justice dependent upon human 
beings for its administration will ever be able to reach, a 
state of absolute certainty. It is not unfair to say that the 
attack on the death penalty presented in this case is

, 44

See Comment "The Death Penalty Cases” , 56 Cal. L. Rev., 1268, 1270, 
1489 (1 9 6 8 ), described by the editors as ". . .what may be the most 
ambitious student piece ever published in the review” , wherein an 
eloquent argument is made for the abolition o f the death penalty. 
H ie  article was originally submitted as an amicus brief to the California 
Supreme Court in In re Anderson, 69 Cal. 2d 613 (1968), and sub­
sequently modified after the decision o f this Court in Witherspoon v. 
Illinois, 391 U. S. 510 (1968). It assigns several grounds as reasons for 
elimination o f  the death penalty:

1. The death penalty is incompatible with the Fifth Amendment 
guarantee o f a fair trial.

2. The death penalty is cruel and unusual within the meaning o f 
the Eighth Amendment.

3. The lack o f standards in jury deliberations violates "due proc­
ess.”

4. The exclusion o f jurors opposed to capital punishment violates 
Sixth Amendment right to a fair trial.

5. The entire judicial process in capital cases guarantees a con­
stitutionally inadequate result.

The authors note in summary that their paper "concludes that Cali­
fornia’s failure to provide penalty juries with standards to guide life 
or death decisions violates due process. This lack o f standards assures 
an aribtrary selection o f defendants who will die. But arbitrariness 
cannot be cured by penalty trial standards. . .”  (Emphasis Ours.)



45

honorably brought but belongs in the legislative arena. 
The decisions of tills Court in the recent cases cited 
above61 and in such cases as Trap v. Dulles, 356 U.S. 86 
(1958), lead to the inescapable conclusion that this Court, is 
not willing to declare the death penalty cruel and unusual 
punishment within the meaning of the Eighth Amendment, 
and that attempts to modify its administration or elimin­
ate it altogether must be considered determinations of 
social and public policy for which legislative means exist. 
Fundamental changes such as the elimination of the death 
penalty must properly be pursued in that arena. It can 
hardly be argued that such attempts are foredoomed in 
view of recent developments in a number of American juris­
dictions.®2

It is interesting to note the fundamental contradiction in 
the arguments presented in this case in support of petition­
er’s position. It is argued that “ enlightened public opinion” 
no longer tolerates the wholesale imposition of the death

81. See Williams v. Florida, Witherspoon v. Illinois, and Spencer v. Texas, 
supra.

82. The following states now impose a maximum punishment of life im­
prisonment for murder:

Alaska (Alaska Stat, §11.15.010, §11.15.020)
Iowa (Iowa Code Ann., §690.2)
Maine (Me. Rev. Stat. Ann., title 17, §2651)
Michigan (Mich. Comp. Laws, §750.316)
Minnesota (Minn. Stat. Ann., §609.185)
Oregon (Ore. Rev. Stat., §163.010)
West Virginia (W . Va. Code, §61-2-2)
Wisconsin (Wis. Stat. Ann., §940.01)



46

[>enalty6?,'oTi one hand, anil on the other, it is presumed 
that juries', composed of representatives of the same public 
which holds the aforementioned enlightened opinion, are 

'presiitried to approach the question o f the imposition of the 
death penalty “ irrationally, arbitrarily'and capriciously.”63 64 
I f  juries represent the conscience of the community65 and 
i f  that concept has any validity66, then the argument that 
the existence or discretion presupposes the abuse thereof 
must faih ' -'
r :Perhaps the real conflict in this case is between the ap­
proaches to our Constitution which often generate vehement 
dissenting opinions in the cases decided by this court. We 
must then ask whether the issues in this ease should be de­
cided by taking into consideration the plain meaning o f the 
words of our Constitution and its Amendments as under­
stood in the context of the historical development-of onr 
jurisprudence ; ;or whether the concepts developed in the 
decisions of this court, founded on. the personal rights 
guaranteed by the first ten Amendements to the .Consti­
tution as incorporated into the Fourteenth Amendment and 
applied thereby to'the several states, need not be delimited 
by consideration for the attempts of the legislative branch 
to effectuate the exercise of those rights within an ordered 
system.

63 See brief o f amici, page 10.

64 See brief o f petitioner James Edward Cncnpton, page 3 1 brief of 
amici page 67.

65 Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). .

66. See Duncan v. Louisiana, 391 U.S. 145, 151 to 158 (1968) and Wii- 
liams v. Florida, 399 U. S. 7 8 (1 9 7 0 ) i



There is no better statements of the conclusion which we 
urge upon the Court than the following language from the 
Tenth Circuit Court o f Appeals in Sequra v. Patterson, 402 
F. 2d 249 (1968), referring to the decision of this Court in 
Witherspoon and quoting it with respect to the function of 
a jury in determining the penalty in a First Degree Murder 
case, the Court notes that it has discovered no successful 
attacks upon the discretion allowed the jury, and says:

“ Perhaps this is because it is neither desir­
able nor feasible to postulate a specific stand­
ard to so control the jury. It is axiomatic that 
the line between contemporary community 
values and the penal system is filled by the 
jury’s being allowed to be reflective of prevail­
ing social thoughts. To assert that the adoption 
of rigid guidelines .seeking to control the jury 
in this respect, thereby substituting merciless 
standards for present day flexibility, is com­
pelled by due process is clearly untenable.”

47

CONCLUSION

NEITHER THE UNITARY TRIAL NOR DISCRE­
TIONARY CAPITAL JURY SENTENCING VIOLATE 
THE C O N S T I T U T I O N A L  RIGHTS OF DEFEN­
DANTS. THE CONCEPTS OF DUE PROCESS AND 
EQUAL PROTECTION ARE NOT SO OPPRESSIVE AS 
TO PRECLUDE PRESENT OHIO LAW AND PRAC­
TICE. THERE HAS BEEN NO SHOWING THAT JAMES 
EDWARD CRAMPTON’S CONSTITUTIONAL RIGHTS 
W E R E  N O T  SCRUPULOUSLY PROTECTED. WE, 
THEREFORE, URGE THE AFFIRMANCE OF THE



48

JUDGMENT OP THE SUPREME COURT OF OHIO UP­
HOLDING THE CONVICTION OF PETITIONER AND 
THE PENALTY IMPOSED UPON HIM.

Respectfully Submitted, . . . . . . .

Harry Friberg,
Prosecuting Attorney 

Lucas County, Ohio

Melvin L. Resnick,
. Assistant Prosecuting Attorney 

Lucas County, Ohio

Alice L. Robie Resnick,
Assistant Prosecuting Attorney 

Lucas County, Ohio

John F. Hayward,
Assistant Prosecuting Attorney 

Lucas County, Ohio

Lucas County Court House 
Toledo, Ohio 43624 
(419) 248-5911

Attorneys for Respondent